Public Bank Berhad v National Feedlot Corporation Sdn Bhd & 4 Lagi (W-02(IM)(NCVC)-2513-12/2017)

NATIONAL FEEDLOT CORPORATION SDN BHD

NATIONAL MEAT & LIVESTOCK CORPORATION SDN BHD

AGROSCIENCE INDUSTRIES SDN BHD

REAL FOOD COMPANY SDN BHD

DATO’ SRI DR. MOHAMAD SALLEH BIN ISMAIL (NO. K/P: 480513-03-5379) … RESPONDEN-RESPONDEN DIDENGAR BERSAMA DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-02(IM)(NCVC)-2514-12/2017 ANTARA PUBLIC BANK BERHAD (NO. SYARIKAT: 6463-H) … PERAYU 2

NATIONAL FEEDLOT CORPORATION SDN BHD

NATIONAL MEAT & LIVESTOCK CORPORATION SDN BHD

AGROSCIENCE INDUSTRIES SDN BHD

REAL FOOD COMPANY SDN BHD

DATO’ SRI DR. MOHAMAD SALLEH BIN ISMAIL (NO. K/P: 480513-03-5379) … RESPONDEN-RESPONDEN [Dalam Perkara Mengenai Mahkamah Tinggi Malaya di Kuala Lumpur Saman No. 22NCVC-623-05/2012 Antara

National Feedlot Corporation Sdn Bhd (No. Syarikat: 756757-K)

National Meat & Livestock Corporation Sdn Bhd (No. Syarikat: 708347-T)

Agroscience Industries Sdn Bhd (No. Syarikat: 683230-K)

Real Food Company Sdn Bhd (No. Syarikat: 705419-K)

Dato’ Sri Dr. Mohamad Salleh Bin Ismail (No. K/P: 480513-03-5379) … Plaintif-Plaintif Dan Public Bank Berhad (No. Syarikat: 6463-H) … Defendan 3 CORUM: NALLINI PATHMANATHAN, JCA BADARIAH SAHAMID, JCA ZABARIAH MOHD YUSOF, JCA GROUNDS OF JUDGMENT Introduction [1] Two appeals, namely appeal No.: W-02(IM)(NCVC)-2513- 12/2017 (Appeal 2513) and Appeal No.: W-02(IM)(NCVC)-2514- 12/2017 (Appeal 2514) were heard and disposed of together. Appeal 2513 is an appeal by the appellant who was the defendant in the court below, from the decision of the High Court allowing the plaintiffs-respondents’ application to amend the Statement of Claim, in the midst of trial. [2] Appeal 2514 is the appellant-defendant’s appeal against the order of the High Court allowing the plaintiffs-respondents’ application to introduce further documents for the purposes of trial. [3] It is not in dispute that appeal r 2514 against the order for the inclusion of further documents by the plaintiffs, is largely contingent upon the outcome of appeal 2513, namely the amendment application. This is because the new documents are almost wholly in support of the new amendments. 4 [4] The two appeals were heard on 31 May 2018. We allowed both the appeals and set aside the decision of the High Court. This meant that the amendment to include a further claim for special damages in the sum of RM992,289,823-00 was not allowed. Neither was the application to include new documents to support the claim for special damages, save for the Notes of Proceedings of a domestic inquiry held by the defendant against an employee who is alleged to have disclosed confidential information belonging to the plaintiffs. [5] We append below the reasons for our decision. The parties will be referred to as they were in the High Court. Appeal 2513 [6] At the hearing of the appeal, we commenced with the adjudication of Appeal 2513 (‘the amendment appeal’). This amendment appeal relates to an application made by the plaintiffs mid-trial, in 2017, to amend the Statement of Claim for the 3rd time since the writ was filed in May 2012. This application was made after 22 case management sessions and five years after the writ was filed, so as to include a claim for special damages in the sum of RM992,289,823-00 (Nine hundred and ninety two million, two hundred and eighty nine thousand and eight hundred and twenty three ringgit). [7] The basis for making this additional claim for almost RM1 billion ringgit, the plaintiffs allege, is because they incurred such financial loss as a direct result of the defendant’s disclosure of the plaintiffs’ confidential information. Additionally, the amendment states that 5 assets and properties belonging to the plaintiffs have been seized and frozen, and a loan granted by the government abruptly withdrawn, which has resulted in a complete cessation of the plaintiffs’ operations and businesses. The plaintiffs then go on to provide a somewhat brief set of particulars relating to the losses stated to be suffered. [8] The primary question before us was whether the learned High Court Judge was correct or had erred in exercising her discretion to allow the amendment. As stated in the recent case of Suruhanjaya Pilihan Raya v Kerajaan Negeri Selangor and another appeal [2018] 2 MLJ 322, it is incumbent upon the defendant to establish that the learned Judge exercised her discretion on a wrong principle or that there has been a miscarriage of justice occasioned by the exercise of the discretion, in order to succeed in its appeals. [9] It is trite that this Court as an appellate court would generally not interfere with the exercise of discretion by a judge unless the latter had erred in law or was plainly wrong. [10] We also bore in mind the importance of due compliance with the underlying objectives of the current philosophy adopted by the courts in the adjudication of matters, namely that matters are dealt with justly, expeditiously and economically in the resolution of disputes. The thrust of the defendant’s submissions in support of the appeal, opposing the amendment application both here and in the court below 6 [11] The defendant objected strenuously to the application contending inter alia that:

(a) There has been an inordinate and inexcusable delay in bringing this significant amendment application. In this context, the defendant sets out the chronology of events relating to the progress of this claim and emphasises that there were no less than 22 case management sessions, and that the plaintiffs’ main witness was being cross-examined when the application was filed – in this context it is pertinent that the amendment is made some five years after the suit was first filed;

(b) Secondly, it is contended that there is no cogent explanation for the delay. The plaintiffs maintain that the delay was caused, inter alia, by:

(i) the several changes in solicitors having conduct of the suit on behalf of the plaintiffs. There were in fact three different sets of solicitors in charge of the matter at differing times;

(c) The defendant complains that the new claim for special damages lacks coherent particulars and has no prospects of success. Remoteness of the damages sought is also raised and emphasised. By reason of such remoteness it is further contended that the plaintiffs have no real prospect of success. This it is contended is a relevant matter that the learned trial judge failed to consider sufficiently or correctly;

(d) The new amendment for special damages has altered the nature of the plaintiff’s original claim, such that it is of a new and different character. Originally the plaintiffs had sought general damages, exemplary and aggravated damages which had all been quantified and amounted to RM560,000,000-00 or slightly over half a billion. (It should be noted that the quantification of general, exemplary and aggravated damages is no longer good or acceptable practice). This amendment adds to the original claim by a further RM1 billion for special damages;

(e) The amendment was not made bona fide and amounts to a tactical manoeuvre to delay the fair, expeditious and economical trial of the respondents’ claim and causes prejudice to the defendant which cannot be compensated in damages. 8 The thrust of the plaintiffs’ response to the defendant’s appeals [12] The plaintiffs on the other hand responded to the defendant’s objections as follows:

(a) The intention of the plaintiffs in initiating this amendment for special damages, was essentially for a bona fide purpose, namely to synchronize the Statement of Claim with the pleadings. There was no mala fides, nor intention to delay the trial. Ultimately the purpose was to enable the real issues in controversy between the parties to be tried and determined. This has always been the primary principle to determine whether or not an amendment ought to be allowed, and mere delay ought not to preclude the plaintiffs’ amendment, particularly where such delay has been explained;

(b) The prejudice caused to the defendant, if any, can be compensated by costs. There is nothing to indicate that the amendment to include the special damages claim would result in, or inflict irreparable damage on the defendant. In point of fact it is the plaintiffs who would be prejudiced if such an amendment were refused;

(c) As the first witness of the plaintiff is still being cross-examined the defendant has every opportunity to cross-examine on the new facts and evidence arising from, or related to this amendment. The defendant would also be 9 able to cross-examine all other witnesses called to prove or establish special damages;

(d) The character of the suit is not altered from one character to another and inconsistent character. On the contrary it ensures that the pleadings, namely the statement of claim, is in line with the subject matter of the dispute. There is no change in the cause of action nor substantially in the remedies sought. This is a mere addition to those remedies and contains sufficient particulars. It falls within the parameter or conclave of the facts of the case;

(e) The delay ought not to override the ultimate justice of the case particularly as the trial has just started. After all the court is empowered to grant an amendment at any stage of the proceedings and even at the end of trial. The case of Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1 was also distinguished. The decision of the learned High Court Judge [13] The learned Judge allowed the amendment application in full and awarded costs of RM50,000-00 to offset the prejudice caused to the defendant. In the course of Her Ladyship’s judgment she found, inter alia, as follows:

(a) Since special damages have to be specifically pleaded and accurately quantified, the plaintiffs were only able to finally do so with the plaintiff’s third set of solicitors, after filing the 10 action some 5 years ago. The plaintiffs have given a cogent and reasonable explanation for their delay in filing the amendment application (see paragraph 97 of the judgment);

(b) The amendment for special damages has sufficiently pleaded the particulars and facts of the proposed new claim for RM929,287,823-00 including the breakdown and details of the breakdown of the total amount of special damages claimed. (see paragraph 102 of the judgment);

(c) The proposed new claim for special damages is not a new cause of action. It arises from the plaintiffs’ claim based on the 3 (three) original causes of action. In other words, it is a consequence of the defendant’s alleged actions which allegedly caused the plaintiffs’ special damages resulting from the collapse of the plaintiffs’ business (see paragraph 107 of the judgment);

(d) On the issue of prejudice the learned J held as follows: “Since special damages have to be specifically pleaded and accurately quantified, the plaintiffs wish to plead them. The plaintiffs have given a cogent and reasonable explanation for the delay in pleading the special damages. However due to the delay the defendant will suffer prejudice which can be compensated by costs. Hence I ordered the plaintiffs to pay a sum of RM50,000-00 as costs to the defendant in order to compensate the defendant for the prejudice caused to the defendant due to the delay on the plaintiffs part in applying 11 to amend the statement of claim to insert the new claim for special damages. In order that the trial of the plaintiffs’ action will not be delayed due to the Court allowing [this amendment application], I have directed that the trial of the claim is divided into two parts.”

(e) The learned Judge went on to hold that the trial of the matter was to be bifurcated, such that the first tranche is in respect of liability and the second, if liability is established, on damages. Thus, Her Ladyship reasoned, the defendant is accorded sufficient time to prepare for the second part of the trial;

(f) Her Ladyship further held that the amendment was not a tactical manoeuvre to delay the trial of the plaintiffs’ suit or to harass the defendant because it is bona fide. It was imperative for the plaintiffs to amend their claim because special damages would not then be available to them, without such a claim being expressly pleaded. Our Analysis and Decision [14] Learned counsel for the defendant and the plaintiffs referred to a large number of authorities relating to amendments in their written submissions. Some of these cases were highlighted in the course of the oral hearing. They are well-known authorities and it does not to our minds serve any useful purpose to set out large portions of those judgments in detailing the principles we relied upon to arrive at our decision. Although we have made references to further case-law 12 below, it suffices to state that we had at the forefront of our minds, the principles enunciated in the two renowned Federal Court cases of Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ 213 (‘Yamaha’) and Hong Leong Finance Berhad v Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1 (‘Low Thiam Hoe’) which reflect current thinking and the position in law in relation to amendments. [15] What perhaps is of prime importance is for litigating parties to comprehend and accept that the conduct of litigation has changed substantially since 2009. The difference in approach is that where litigation was once conducted at the pace and manner dictated by advocates and solicitors, the emphasis has changed such that it is now the courts that steer the conduct of litigation so as to ensure a just, expeditious and economic disposal of matters. This means that time is not at large and costs are an important consideration while the primary goal of ensuring that justice is meted out is not compromised. [16] The goal of a just judgment or decision, coupled with an expeditious and economical disposal are not mutually exclusive. On the contrary, these objectives complement and serve each other well. This new approach is reflected in our Rules of Court 2012. Intrinsic to the scheme of how matters are conducted is the proper management of a case, as it greatly affects the progress of litigation generally. A failure to carry out a material step or inaction ought not to be condoned, and can of itself be penalized, even if it does not give rise to adverse consequences on the litigation itself. 13 [17] In the instant case there has been a delay of some five years to plead a further sizeable and significant claim for special damages, which it would appear, was largely available to the plaintiffs even at the outset of the claim. Reverting to the changed philosophy in the conduct of litigation today, it is apparent that delay meets with far less tolerance than it did previously. This is borne out by the cases of Hong Leong Finance Berhad v Low Thiam Hoe (above), Gurbachan Singh & Ors v Tetuan Muthu & Lee & Anor [2001] MLJU 82; K Rajashekar a/l Kanapathy v Palm Court Condominium [2014] 9 MLJ 297, Christopher ak Bandi @ Josny v Tumbung ak Nakis & anor [2016] 4 MLJ 110. [18] We have given anxious consideration to the appeal record as well as the submissions, both written and oral, of learned counsel for both the plaintiffs and the defendant. [19] Having done so, we are not satisfied that the learned Judge considered sufficiently or at all the nature and effect of the inclusion of the special damages amendment amounting to almost RM1 billion ringgit, made at a very late stage in these proceedings. [20] In her judgment, the learned Judge has conscientiously set out the full grounds of argument of learned counsel prior to setting out an evaluation of the arguments. The conclusions of the learned Judge may be found in the specific paragraphs of Her Ladyship’s judgment, which we consider in turn below: 14 Issue 1: Delay [21] On the issue of delay, paragraph 97 states as follows: “Since special damages have to be, specifically, pleaded and, accurately quantified, the plaintiffs were only able to finally do so with the plaintiffs’ third set of solicitors after filing the action some 5 (five) years ago. The plaintiffs have given a cogent and reasonable explanation for their delay in filing enclosure (158)”. [22] In short the judgment merely states that the reasons given were cogent and satisfactory. There were no further reasons given to substantiate Her Ladyship’s finding. It therefore amounts to a bare finding suggesting that despite the setting out in detail of the submissions of respective counsel, there was no analysis or any real consideration of the factual matrix nor application of the law. [23] As matters stand, the learned Judge failed to consider that:

(a) a change of solicitors does not afford a reasonable excuse to explain a delay of five years in respect of matters claimed to be special damages. In other words, the fact that the other sets of solicitors failed or forgot to plead special damages is an insufficient excuse in light of the overriding objective of achieving a just, expeditious and economical disposal of a case; 15

(b) The explanation that the delay was due in part to the need to quantify or compute these damages does not really stand up to scrutiny. The losses in net income from 2012 to 2037 as per the Implementation Agreement could have been computed from the outset at the point of the filing of the writ;

(c) Similarly the recall of the Government loan (or forfeiting of the same) resulting in the plaintiffs repaying the loan sum together with interest, etc., is a matter that was within the knowledge of the plaintiffs well before 2017 and at the outset or soon after the initiation of the suit. Again the need to compute the same is not a satisfactory explanation as the computation is hardly complex. The loss as to shareholders funds, apart from being vague is bare of any factual matrix. It is not clear that the stipulated sum has in fact been incurred or is a future loss that has been computed. There is no reason given for the delay in pleading this item. Similarly with the loss in “non-workable infrastructure and fixed assets”. In short, the explanation for the delay is simply not made out because it is unclear what has been computed and why it took five years to compute such alleged loss;

(d) Learned counsel for the plaintiffs submitted that Lim Thiam Hoe’s case was distinguishable as the delay in seeking an amendment to the defence spanned a period of 14 years. It should be emphasized at this juncture that delay is relative, and each case ought to be considered on its own facts. Therefore a comparison with Low Thiam Hoe’s case where the delay is 14 years does not of itself, distinguish it from the 16 present case. Equally, there are amendments which were not allowed although the delay was a year; [24] In considering whether or not to allow an amendment, albeit in respect of a claim or defence, it is a balancing of the competing factors of the delay and prejudice caused to one litigating party, against the need to allow significant amendments so as to ensure there is no miscarriage of justice. One factor of importance is to ascertain whether the trial would be imperiled or adjourned or derailed by the grant of the amendment. However, this relevant factor does not appear to have been considered by the learned Judge. It is particularly relevant in the instant case, given that this is a five year old case, with no less than 22 case managements when these amendments could have been sought. [25] We found that it was not clear why the learned Judge came to the conclusion she did. A mere statement that the reasons were cogent is, to our minds, insufficient for this Court to assess on what basis Her Ladyship’s discretion was exercised. Issue 2: Whether the proposed new claim lacks particulars? [26] The learned Judge concluded that the proposed new paragraphs more particularly paragraphs 23 and 24 “…have, sufficiently, pleaded the particulars and facts of the proposed new claim for special damages of RM929,287,823-00 including the breakdown and the details of the breakdown of the total amount of special damages claimed.” 17 [27] No reasons were given for this finding. A perusal of the relevant paragraphs discloses that while paragraph 24 sets out a very brief and general list of the details of the losses suffered by the plaintiffs, these details are vague and general. [28] For example the first particular makes claim generally for losses in net income from 2012 to 20137 as per the Implementation Agreement. There is no earlier reference to, nor introduction of the “implementation agreement’. The basis for such loss in income is not satisfied. There is no explanation as to how or why the figure of RM362,196,000-00 has been claimed. There is neither a breakdown nor core figures from which this total may be ascertained. [29] Detail number (ii) relates to an alleged “repayment of government loan” with an outstanding principal of RM250 million together with interest and less “recoverable assets”. Again, there is no earlier reference to nor identification of the government loan. Neither is the defendant privy to such an agreement. The reason why the repayment is damage directly arising from the alleged breach of contract or unlawful disclosure has not been explained in the earlier paragraph 23. More significantly, both particulars (i) and (ii) were available for disclosure and pleading at the outset of the filing of the claim some five years ago. There is no discernible or cogent reason why this claim is made so very late in the day. [30] Similarly particulars (iii) and (iv) relating to alleged loss in investment or shareholders’ funds and loss in non-workable infrastructure and fixed assets is neither explained nor the basis for the same explained earlier or elsewhere. These losses too, if 18 suffered, were available for insertion well before 2017. There are no full particulars or details proffered of these alleged losses. They are simply bare claims for monies. Neither is it apparent whether these sums have been incurred, save for a portion of the Implementation Agreement which clearly envisages future losses up to 2037. [31] There is considerable case-law in support of the requirement for a full particularization of damages. In the Federal Court case of Ong Ah Long v Dr S Underwood [1983] CLJ (Rep) 300 it was held that in considering whether or not to allow an amendment to insert special damages it was necessary that the special damages be pleaded and sufficiently particularized in order to warn the defendant of the type of claim and evidence that he or it will be confronted with at trial. [32] This principle is also enunciated in the cases of Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30, Perrestrello E Companhia Limitada v United Paint Co [1969] 3 All ER 479 at 485 to 486; British Transport Commission v Gourley [1956] AC 185 and Pal Associates Sdn Bhd v The Syndicate of the Press of the University of Cambridge being authorized by the Chancellor Masters and Scholars of the University of Cambridge [2014] 10 MLJ 728 at 738, all of which have been set out and expressly referred to by the learned Judge. Notwithstanding this, there does not appear to be any real consideration accorded by the learned Judge to the principles set out in those cases. [33] The relatively bare amendment sought to be introduced by the plaintiffs is shorn of any real basis for the particulars substantiating the new special damages claim. As pleaded these details do not, in 19 our view, meet the requisite minimum standard of sufficiency of particulars for a special damages claim of almost RM1 billion ringgit. In view of the unreasoned basis for the learned Judge’s conclusion, we are unable to ascertain why the learned Judge came to the conclusion that the particulars were sufficient. [34] The particulars as they stand do not assist the defendant in any manner whatsoever to prepare to meet the case made out against them in the significant sum of RM1 billion. The purpose of particulars is to enable the defendant to do precisely that. It was contended for the plaintiffs that it was open to the defendant to seek further and better particulars. But in an application of this nature which is made extremely late in the day and that too, mid-trial, it is incumbent upon the party seeking to make the amendment to provide sufficient particulars to justify or substantiate the claim in full. [35] In these circumstances we are of the view that the learned Judge erred in her application of the principles of amendment or was plainly wrong in arriving at the conclusion she did. Issue 3: Real prospects of success in proving the claim [36] Closely related to this issue is that of a “real prospect of success” in proving the new claim for special damages in the sum of almost RM1 billion should the application be allowed by the Court. This is an essential requirement that has to be met in line with the reasoning of the Federal Court in Low Thiam Hoe’s case. As also held in Ong Ah Long v Dr S Underwood (above), in considering whether or not to allow an amendment to insert special damages, it 20 was necessary that the special damages sought to be introduced must not be too remote and must be a consequence of the alleged wrongful act. [37] In the instant amendment application there has been no real attempt to address why or how these losses sought, arose directly from or as a consequence of the allegedly wrongful act/s of the defendant. Paragraph 23 as we pointed out earlier, is extremely general and merely states, perfunctorily that these special damages arise as a direct result of the defendant’s wrongful disclosure of confidential information. As it stands it is a bare averment. [38] It is trite that in order to recover such a sum by way of special damages, the defendant ought to have been appraised or put on notice by the plaintiffs of the possible or likely consequences of such disclosure. No such notice or information from the plaintiffs to the defendant is either pleaded nor is evident from the statement of claim. There is no basis on the pleadings as they stand, to conclude that this loss of RM1 billion is directly attributable to the allegedly wrongful disclosure by the defendant. [39] In short, the issue of remoteness of damage has also not been considered. The learned Judge ought to have considered this aspect of the amendment. If Her Ladyship had done so she is likely to have come to the conclusion that a full claim for an agreement that has not been fulfilled is too remote to warrant inclusion. For example, it is too remote to claim, on the pleadings as they stand, that an agreement that may or may not have been performed in full, has in fact been lost in toto by reason of an alleged wrongful disclosure of confidential 21 information, and to seek to claim that amount in full. It has no real prospect of success as pleaded, namely from 2012 to 2037 and there is therefore no reason why it should go to trial for disposal. [40] It appeared to us that the learned Judge did not address her mind sufficiently or at all to the issue of remoteness of damage and thereby the prospects of success at trial. In failing to do so, the learned Judge erred in law and/or failed to apply the correct principles of law to the instant case. This too warrants appellate intervention. Issue 4: Whether the proposed amendment to add a new claim for special damages has the effect of changing the character of the plaintiffs’ suit into another and inconsistent character? [41] On the issue of the change in the character of the suit, the learned Judge simply opined that it did not alter the character of the suit, largely because these damages flowed or were consequential to the primary causes of action pleaded. [42] However it is the very nature and quantum of this claim for special damages that makes it difficult to simply conclude that it amounts to consequential loss. The introduction of a special damages claim for RM1 billion, brought in five years after the event, without full particulars and encompassing claims which are prima facie too remote, certainly have an effect on the claim. It alters the claim irrevocably, as the focus is now shifted to a far larger claim premised on matters that were not previously contemplated at the stage of the filing of the claim, although those details were available then. 22 [43] What was initially pleaded as an unlawful disclosure of confidential information with a remedy of general, exemplary and aggravated damages of RM560 million, has now ballooned to include an effectively new claim for an additional RM 1 billion by way of “special damages” to include losses for a variety of matters that have not been pleaded so as to disclose a nexus between the wrongful disclosure and the loss suffered. Such a substantive amendment cannot simply be categorized as arising as a “consequence” of the disclosure of confidential information. [44] It seeks to introduce an entirely different scope and expanse to the claim such that the character of the original claim stands altered. That is untenable by reason of delay, remoteness, lack of particulars and the prejudice accorded to the defendant. [45] It also amounts to litigating in stages, or progressively, as pointed out by learned counsel for the defendant. We are of the view that the claim for special damages does indeed amount to a radical departure from the thrust of the original claim. Again the learned Judge does not seem to have addressed this issue fully or at all, making it difficult for this Court to assess on what basis Her Ladyship concluded that it did not alter the character of the claim. As such, we are of the view that the learned Judge erred in coming to the conclusion she did. Issue 5: Whether the prejudice caused to the defendant by the proposed new claim for special damages, if allowed by the Court, can be compensated by costs? 23 [46] At paragraph 113 of the judgment, the learned Judge rejected the defendant’s submissions that it would suffer loss that could not be compensated in costs. Her Ladyship determined that the defendant would suffer prejudice which could, however be compensated in costs. RM50,000-00 was awarded by way of costs. Further it was ordered that the trial be bifurcated such that liability would proceed first followed by damages. This it was reasoned would accord the defendant sufficient time to meet the new special damages claim. [47] The learned Judge failed to appreciate that time in itself would not alleviate the prejudice accorded to the defendant by the inclusion of the new amendment. As the new claim is currently pleaded, and as pointed out earlier in the judgment, the defendant will suffer considerable prejudice in meeting this claim for damages because:

(a) It is not privy to the Implementation Agreement;

(b) It is not privy to the Government Loan Agreement;

(c) There are no pleadings explaining how or why the losses allegedly suffered or to be suffered in the future are directly attributable to the disclosure of confidential information, apart from a bare averment;

(d) It is not clear that these are indeed “special damages” which generally relate to losses suffered or incurred. This claim cannot be held akin to a personal injuries claim where future losses are computed;

(e) A lengthier period of time will not assist the defendant in meeting the claim given that it is bereft of fundamentals. Again it is incumbent upon the plaintiffs to provide the reasoned basis for its new claim; 24

(f) It is apparent that the addition of the claim will warrant the elucidation of voluminous new documents, and arguably require several more factual witnesses, and possibly experts. These consequences are real and will have a detrimental effect on the trial as a whole. The bifurcation of the trial does not deflect from this consequence. The current delay in the disposal of this trial is extraordinary. Further delays occasioned by late amendments ought not to be encouraged;

(g) Apart from delay, it is as if a new claim has been effectively mounted. The defendant will have to re-align its defence to meet what is in effect a new claim. This form of prejudice ought not to be condoned. It cannot be compensated by damages. It is certainly not in line with the civil procedure requirements that specify a strict timetable for the resolution of cases;

(h) The defendant is a public listed company that will be constrained to disclose the fact and nature of the proposed amendment. The mere size of the claim, coupled with the incomplete particularisation of the same may well give rise to damage and the defendant’s reputation that cannot be compensated in costs. [48] These factors were not given serious consideration by the learned Judge. The failure to consider the same has occasioned a miscarriage of justice. Costs do not compensate the amendment sought on the facts of the instant case. 25 Issue 6: Whether the amendment application is a tactical manoeuvre to delay the trial of the plaintiffs’ suit and/or to intimidate and harass the defendant [49] At paragraph 121 the learned Judge rejected the contention that the amendment was a tactical manoeuvre calculated to delay the trial of the suit, and concluded instead that it was made bona fide. In so concluding Her Ladyship found, inter alia, that it was imperative for the plaintiffs to apply to amend the statement of claim as special damages were not otherwise recoverable. She further accepted that the plaintiffs required time to compute the losses and given the change in solicitors, as well as the nature of the present case, which was complex the application was not intended to harass or intimidate the defendant. [50] The fact that these amendments which were known, or ought to have been available to the plaintiffs from the outset, and were only sought to be pleaded some five years later, cannot be simply ignored or excused. This, coupled with the altered character of the claim, the lack of particulars, the remoteness of the claim, the vagueness of the special damages claim and the extraordinary size of the claim, all point towards this amendment being less than bona fide. Bona fides is an essential element of any claim for an amendment, applying Yamaha Motor principles. [51] The learned Judge, to our mind failed to give these aspects of the application any real or sufficient consideration. To that end we concluded that it was not reasonable for Her Ladyship to conclude, on the instant factual matrix, that this was a bona fide amendment. As 26 such we were constrained to conclude that she erred in doing so. The grant of the special damages amendment, resulted, in fact, in a miscarriage of justice to the defendant. [52] For all the reasons cited above, we were of the unanimous view that Appeal 2513 relating to the amendment of the plaintiffs’ claim to include a new special damages claim for almost RM1 billion ought to be allowed and the decision of the High Court set aside. Appeal 2514: The plaintiffs’ application to include a new bundle of documents [53] As stated at the outset, it is not in dispute that this application is to a considerable extent contingent upon the outcome of the amendment application. This is because the documents sought to be included at this stage by the plaintiffs is largely in support of, or to substantiate the amendment for special damages. [54] As we have concluded that the amendment application ought not to have been allowed, it follows that all these documents then become irrelevant for the purposes of the trial. That is, save for one exception. We expressly allowed in evidence at trial, an item relating to the notes of proceedings of a domestic inquiry in respect of the defendant’s employee, one Johari Bin Mohamed, who is said to have disclosed the confidential information, to be included at trial. [55] We did so as we were of the view that it appeared to be relevant to the issue of liability. We came to that conclusion notwithstanding that the plaintiffs sought to have it included as a basis for their new 27 claim for special damages. This is because the contents of this set of documents is well within the knowledge of the defendant. In point of fact, the defendant made these documents available to the plaintiffs pursuant to an order for discovery. Accordingly the defendant would not be prejudiced by the production or adducing of evidence at trial. The rest of the documents sought to be included [56] Other relevant reasons for rejecting the inclusion of the rest of the documents sought to be adduced is the very late stage at which the plaintiffs sought to produce these documents. Such delay was glaringly apparent in view of the fact that there had been as many as 22 case management sessions over a period of five years, during which these documents could easily have been made available. These documents were or should have been available at the very outset or soon after the filing of the claim. [57] There has been no reasonable explanation for the inordinate delay other than the change of solicitors and the need to compute these losses. This explanation is less than tenable under the current philosophy or regime, which as pointed out at the outset, requires litigation to be conducted so as to achieve a just, expeditious and economical outcome. None of these objectives is met by the amendment or the inclusion of these documents at this juncture of the trial. [58] The documents sought to be produced are also somewhat wanting in terms of material matters. For example, one of the documents which is described in the plaintiffs’ affidavit in support as 28 the “Bedford Russell Business Plan Report” does not bear any such reference to suggest it is indeed that report. The maker is not known and the report is not dated. While stated to be relevant for the proof of special damages, the document as it stands is not fit for inclusion due to the lack of a maker and as it is undated. [59] While it may be said that this is a matter for argument at trial, it follows that prima facie, parties are required to put in original documents which bear at the very least, a date and the name of an author. In other words, it is not acceptable to include documents without an author and which are undated, in a bundle of documents to be utilised at trial. It is certainly not necessary to wait until trial to determine that a lack of such fundamental requirements renders the document inadmissible. [60] Similar considerations apply to a document exhibited in the plaintiffs’ affidavit in support stated to be the “Tricor National Feedlot Corporation Sdn Bhd Ground Business Valuation”. The document appears to be a draft report for discussion only and has no cover, heading or title. This again renders the document unsuitable for inclusion at trial. [61] A further document sought to be introduced is a report from KPMG which was completed on 8 December 2012, more than five years ago. Again, this could have been produced a long time ago and no cogent explanation has been afforded for the delay. [62] Several other documents sought to be produced do not appear to be relevant to the issues at trial, particularly in view of our having 29 set aside the order of the High Court allowing the amendment. The basis for the introduction of the documents and the objections of the defendants have been set out in full by the learned high Court Judge. Her Ladyship concluded that the documents ought to be allowed in and the admissibility of those documents to be determined at trial. It was premature, she concluded to determine the admissibility at this juncture. [63] With the utmost respect, the issue before the learned Judge was whether these new documents ought to be allowed in evidence as a consequence of the amendments at this late stage and mid-trial. Her Ladyship ought to have determined, by the application of relevant principles, whether documents of this nature and volume in support of a new claim for special damages ought to be included. [64] It is trite that voluminous bundles of documents cannot be introduced as parties see fit at any stage of the proceedings, particularly after trial has commenced. This would give rise to serious prejudice to the adverse party who would have to realign its case and possibly counter those documents with documents of its own. [65] This would effectively derail the entire trial process and the nature of claims such that a claim commenced as one premised on breach of contract could morph into a far larger or different claim encompassing new damages claims by the inclusion of documents and amendments as the trial progressed. [66] Such a consequence would render case management procedures, not to mention pleadings nugatory. It would also 30 undermine the very purpose of adversarial litigation which is the foundation of our system of adjudication. [67] In concluding that it was premature to determine the issue of relevancy and delay in the inclusion of these documents at this juncture, the learned Judge failed to exercise her obligation to manage the case so as to ensure that it was litigated within the confines of the claim so as to achieve the objectives of a just, expeditious and economical adjudication of the claim. [68] In failing to do so, the learned Judge, to our minds, erred in the application of the correct principles of law. Her Ladyship was plainly wrong, as a consequence of which, appellate intervention was warranted. [69] For these reasons we allowed Appeal 2514 as well and set aside the decision of the High Court. These documents (save for the notes of proceedings of the domestic inquiry mentioned above) cannot therefore be adduced at trial, albeit in support of the special damages claim or otherwise. [70] We further ordered that the Respondent pay the Appellant the sum of RM10,000-00 by way of costs for each appeal, subject to allocatur. The deposits were refunded. Nallini Pathmanathan Judge Court of Appeal Malaysia Dated : 4th July 2018 Signed 31 For the Appellant : Yoong Sin Min (Poh Choo Hoe and Merie Chen Mong Yi with her) Tetuan Shook Lin & Bok Peguambela & Peguamcara Tingkat 20 Bangunan Kumpulan AmBank 55 Jalan Raja Chulan 50200 Kuala Lumpur For the Respondents : Tan Sri Dr. Muhammad Shafee Abdullah (Wan Aizuddin Wan Mohammed with him) Tetuan Sulaiman, Jamellah & Clement Peguambela & Peguamcara 11-1 Jalan 45/26 Taman Sri Rampai 53300 Kuala Lumpur