Rishindran A/l Paramanathan (Menyaman Sebagai Pentadbir Estet Shamini A/p Manokaran, Si Mati) v 1. ) Kajang Plaza Medical Centre Sdn Bhd (BA-21NCvC-9-03/2024)

Kajang Plaza Medical Centre Sdn. Bhd.

Dr. Renu Gopinath 3. Kerajaan Malaysia 4. Dr. Aishah binti Mohd Hafiz 5. Dr. Norsyazwan bin Mohd Yusof 6. Dr. Shahril bin Abu Bakar 7. Dr. Missdalia binti Mat Kiah 8. Dr. Darlina binti Mohd Dhari 9.

Dr. Chong Poi Leng

Dr. Sadanah Aqashiah binti Mazlan

Dr. Gillian Marie Gaunter Dr. Ahmad Al Hafeez bin Ahmad Zaidi …Defendan-Defendan Dan Nithraj a/l Manokaran (menyaman sebagai Pentadbir Estet Shamini a/p Manokaran, simati) …Pencelah Yang Dicadangkan 26/05/2025 10:02:59 BA-21NCvC-9-03/2024 Kand. 30 GROUNDS OF JUDGMENT Introduction Enclosure 15 [1] This is an application by the Proposed Intervener for leave to intervene pursuant to Order 15 Rule 6 of the Rules of Court 2012 (ROC) and to be added as 2nd Plaintiff in this proceeding. [2] After hearing both parties, I allowed the application for the proposed intervener to be admitted as a co-plaintiff with no order as to costs. The Plaintiff, however, expressed his concern about the order at the outset, as he saw potential difficulties conducting the matter jointly. [3] In addition to the above order, the intervener requested that counsel of his choice represent him. On this issue, I did not make any order as any party is allowed under the law to be represented by their solicitors. However, I do make a remark that in the course of the preparation of the case, if conflict arises that affects the justice of the case, parties are at liberty to apply. [4] Plaintiff now appealed to the Court of Appeal, and below are my reasons. The Parties and Brief Background Facts [5] The proposed intervener (Nithraj) is the brother of the deceased, Shamini a/p Manokaran, and the joint administrator of her estate with the Plaintiff (Rishindran). Rishindran is the widower of the deceased. [6] The deceased died on 11.3.2021 due to complications suffered by her during the delivery of her daughter. This claim brought by Rishindran is for medical negligence against the doctors listed as the Defendants for the benefit of the deceased's estate under sections 7 and 8 of the Civil Law Act 1956. The Application – Enclosure 15 [7] During the pre-trial case management proceeding, Nithraj, the joint administrator, filed this application to be added as the 2nd Plaintiff, to be in the loop of the suit against the Defendants. At the same time, he requested to be represented separately by his solicitors. [8] It was submitted that Nithraj filed this application because Rishindran allegedly disregarded him and initiated this claim without naming him a co-plaintiff. [9] There has been disagreement between Rishindran and Nithraj on many matters, which led to this filing of suit by Rishindran alone instead of jointly with Nithraj, even though both are administrators to the estate. [10] According to Nithraj, this application is necessary for the following reasons:

Rishindran and Nithraj were appointed joint administrators of the deceased's estate.

The decision of the Court would directly involve and affect Nithraj's responsibilities and liabilities as the joint-administrator of the deceased.

Nithraj's presence in Court is necessary to ensure all matters in dispute regarding the cause of action may be wholly and effectually determined and adjudicated upon.

Rishindran's objection to this application raised suspicion and was considered unreasonable.

Questions or issues relating to the relief claim will be justly and conveniently determined if Nithraj were added as a co-plaintiff.

According to the law, the duties and responsibilities of joint administrators may not be delegated as they are considered personal in nature.

Every person is entitled to be represented by a solicitor of their choice; therefore, if this application is allowed, Nithraj should be allowed to have his solicitor continue representing him. [11] Defendants have no objection to the application; however, Rishindran himself have a reservation, that is, he will not object if the same (present) solicitors would represent both of them. [12] As Nithraj did not agree upon the above, Rishindran then states his objection to the application as follows:

Appointing Nitraj as co-plaintiff is unnecessary, especially with separate representation.

There is no real risk that Rishindran would not work towards justice for the interests of the deceased's estate without him being a co-plaintiff.

As a joint administrator, Nithraj cannot claim interest (in the claim) for the benefit of the dependents.

Unlike Rishindran, Nithraj is not even a dependent of the deceased.

Adding an unnecessary party would bring no benefit and cause delay and additional costs.

Nithraj had not disclosed any reason for not stating his intention until after the commencement of this action to become a co-plaintiff.

Nithraj had not offered an undertaking to give an indemnity regarding the cost that Rishindran or the estate would incur if Nithraj were added as a co-plaintiff with separate representation.

Rishindran had incurred costs by instructing solicitors and engaging experts for this action, and Nithraj has not offered to pay any part of such costs.

Nithraj will need to show how his delayed entry in the proceeding would assist the Court in doing justice.

Having two firms of solicitors on record will result in chaos, confusion in accepting service of documents and unnecessary disputes when conducting the trial.

The question is unresolved: Who will bear the cost if the plaintiffs lose the case, and who will gain (the cost) if they succeed in the claim? The basic law on Application to Intervene [13] Order 15 Rule 6 of the ROC reads as follows:

(1) A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application -

order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

order any of the following persons to be added as a party, namely -

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

An application by any person for an order under paragraph (2) adding him as a party shall, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.

A person shall not be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized.". [14] The Federal Court in Hong Leong Bank Berhad v Staghorn Sdn Bhd & Other Appeals [2008] 2 CLJ 121 held where a non-party tries to intervene in a proceeding, he must do so under Order 15 rule 6 of the ROC and the principles laid down in Pegang Mining Co Ltd v Choong Sam & Ors [1968] CLJU 96 are applicable provided there was an existing proceeding for the applicant to intervene. Analysis and Findings [15] This application by Nithraj is not a typical request for intervention to seek the right to be heard by a non-party. Generally, when someone is granted permission to intervene, they are added as a defendant so that their voice can be heard in the proceedings. [16] However, in this case, the application to intervene is to be added as co-plaintiff, which, unfortunately, was not agreed to by the present sole Plaintiff if they were to be separately represented. [17] Authorities cited and discussed by both parties centred on the representation of a co-plaintiff. Rishindran submitted that separate representation would be inconvenient, impractical, and waste precious judicial time (see Federal Land Development Authority v Tan Sri Hj Mohd Isa bin Dato Hj Abdul Saamd (2022) 7 MLJ 883). [18] Nithraj, on the other hand, lost trust in Rishindran's solicitor as they had not advised their client (Rishindran) properly to include Nithraj when initiating the action. Nithraj further states that Rishindran's excuses that the matter would result in chaos in conducting the trial are merely barefaced allegations, allegedly trying to control the narrative and direction of the negligence case and wanted to control the relief that the Court might award. [19] From the above assertions and arguments, I conclude that the core dispute is not the issue of joinder of the Plaintiff but the lack of consensus between Rishindran and Nithraj to focus on the benefits of the deceased's estate. They had built a barrier between them due to their dissatisfaction, the reasons for which are better known to them. Therefore, these circumstances clouded both parties' ability to see their purpose in maintaining and proceeding with the action against the Defendants without division in opinion. [20] Simple as the matter should be, I am of the opinion that Nithraj, as the joint administrator of the estate of the deceased, should be allowed to be a co-plaintiff. Given the nature of the suit, I see no possible conflict of interest in their pursuing the action. The only friction, if any, would be self-constructed if they have prioritised their own personal agenda instead of the best interests of the deceased's estate. Both parties should realise that this disagreement, if prolonged, does not favour or benefit any of the beneficiaries. [21] As far as the costs are concerned, if they are ordered by or awarded to the deceased, they would be paid from the estate of the deceased. Therefore, it would be prudent for both joint administrators to ensure that no unnecessary costs are incurred. [22] Rishindran had submitted the case of Lewis and Another v Daily Telegraph Ltd (1964) 1 All ER 705 in support of his contention that only one firm of solicitors should represent the plaintiffs in such a litigation. I quote the relevant paragraph of the submission:

Lord Justice Pearson said as follows in Lewis and Another v Daily Telegraph Ltd [1964] 1 All ER 705 [PBoA Tab 2] :- "In my view it was not regular, and not in accordance with the proper practice, that two firms of solicitors should be placed on the record as representing Mr Lewis and the plaintiff company separately. … The rule is clearly stated in Wedderbum v Wedderbum. Sir John Romilly MR said ((1853), 17 Beav at pp 159, 160): "Mr. and Mrs. Hawkins may, in concurrence with the other four co-plaintiffs, remove their solicitor, and the other four may allow him to conduct the proceedings for all. But if the plaintiffs do not all concur, Mr. Hawkins cannot take a course of proceeding different and apart from the other plaintiffs, for the consequence would be, that their proceedings might be totally inconsistent. When persons undertake the prosecution of a suit, they must make up their minds whether they will become co-plaintiffs; for if they do, they must act together. 1 cannot allow one of several plaintiffs to act separately from and inconsistently with the others (emphasis supplied)."

Lord Justice Russell said as follows at page 715 of Lewis: "Prima facie, co-plaintiffs, whether in one original action or in an action consisting of consolidated actions, must be jointly represented by solicitor and counsel. In a proper case, an order may be made authorising severance in point of representation; but this must be, I think, rare and should only be done to avoid injustice (emphasis supplied)." [23] Nithraj differentiated the above case, stating that in Lewis, the cause of action was defamation; therefore, each Plaintiff would carry a particular burden of proof to establish it. I agree with Nithraj, and for that reason, a co-plaintiff in such a case should not be allowed to sever or take inconsistent steps and must appear at the trial by the same solicitor. However, the position is not similar in the present case. I believe this Court would still have the discretion having regard to the nature of the action. [24] On the above issue, I am guided by the case of Del Eweb International Hotel Co v Hotel Merlin Penang Sdn Bhd (1973) 1 MLJ 31, where Chang Min Tat, J said "that it is impossible to lay down any rule as to how the discretion of the court ought to be excersised but generally, where claims by or against different parties involve a common question of law or fact, bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time, the court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried". [25] In the present case, Nithraj is not, technically, a different party claiming to have a common question of law. He is the rightful party to be added initially, being a joint administrator. [26] Representation of the plaintiff (or plaintiffs) is not limited to just one firm or solicitor. As legal professionals managing a case, lawyers should avoid getting caught up in their clients' conflicts and resentments. Instead, they should work collaboratively to address the issues at hand. In this situation, they are on the same side and should align their efforts in drafting pleadings and tackling the matters as a united team during the trial. [27] Moreover, I do not see any possibility of Nithraj, through his solicitors, taking a different stand in this action against all Defendants to warrant his exclusion. As for the other task or legal preparation of the matter, both parties should, as already mentioned, allow their lawyers to work together by consensus according to the law and avoid giving instructions to the contrary. [28] Nobody wins if this matter is dragged on continuously with one objection after another by either of them. Not even the Defendants. Therefore, both Rishindran and Nithraj will need to agree, as both of them are allowed under the law to pursue the claim to the best of their ability instead of quarrelling over trivial reasons such as this. Final order [29] Having heard both parties, perused the affidavits and read the submissions filed, this application in enclosure 15 is allowed with no order as to cost, and the proposed Intervener is to be added as the 2nd Plaintiff. Dated this: 22nd May 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) Judge Shah Alam High Court NCVC 9 Representative: For the Proposed Intervener: Sreedhara Naidu A/L Sree Ramalu Naidu together with Nur Alia Afiqa binti Mohd Yusof Messrs Naidu Chambers For the Plaintiff: Manmohan Singh Dhillon together with Aaika Zulaika binti Mohd Yusop Messrs P S Ranjan & Co. For the 1st Defendant: Siew Yih Jhien Amos Messrs Azim, Tunku Farik & Wong For the 2nd Defendant: Vanessa Vishalin Voctor Veloo Messrs Jayadeep Hari & Jamil For the 3rd to 12th Defendants: Shazreen Nadia binti Zulkipli