Subparagraph
(iii) The plaintiff cannot sue for the tort of negligence because parties to a proceeding and their solicitors and counsel do not generally owe any duty of care to the other side (Customs and Excise Commissioners v Barclays Bank plc [2006] 4 All ER 256 HL; Mohamed Yusof Bin Abdul Wahab v American Express [2002] 6 MLJ 507). SUBMISSION OF PARTIES [4] On the first point concerning civil malicious prosecution, learned counsel for the plaintiff argued that the learned judge’s reliance on Rawther (supra) is misplaced as the facts in that case are materially different. That case, the plaintiff had successfully sued for malicious prosecution after the plaintiff was acquitted of a charge of making a false affidavit. The Federal Court reversed the decision of the lower court on the ground that the plaintiff had failed to prove that it was the defendant who set the criminal law in motion against the plaintiff. Similarly, Jaafar (supra) is also distinguishable on the facts. Learned counsel relied on Tetuan Bee Ling & Co v Vijendran Ponniah [2010] 6 CLJ 643 (CA) to Page 6 of 12 argue that the plaintiff’s claim for civil malicious prosecution is sustainable and an actionable tort. The learned judge also failed to consider the plaintiff’s averments in his affidavit and statement of claim of the acts of malice by the defendant. Tetuan Bee Ling & Co (supra) supports the proposition that civil malicious prosecution is a recognised cause of action. Malicious prosecution is an actionable tort and includes the prosecution of civil proceedings (Willers v Joyce & Anor [2016] UKSC 43). [5] On the second and third point concerning abuse of court process and negligence, learned counsel for the plaintiff argued that the learned judge did not provide any reasons for arriving at his finding that there was no mala fide. The fact that the defendant did not appeal against the Annulment Order is tantamount to the defendant’s admission that the bankruptcy proceedings against the plaintiff was an abuse of process and that the defendant did not have the right to commence the bankruptcy proceedings in the first place. Therefore, learned counsel argued that this is not a plain and obvious case to be dismissed summarily and the plaintiff should be given an opportunity to prove at trial that the defendant did not have a reasonable and probable cause to the ROAO against the plaintiff (Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking Corporation [1993] 4 CLJ 7 (SC)). [6] In reply, learned counsel for the defendant argued that there is no such tort as ‘civil malicious prosecution’. Since the plaintiff pleaded the tort of malicious prosecution and not the tort of civil malicious prosecution Rawther’s case applies and the plaintiff is required to satisfy the five elements viz, (i) the defendant has set a criminal law in motion against the plaintiff; (ii) the criminal proceedings against the plaintiff terminated in the Page 7 of 12 plaintiff’s favour; (iii) the defendant had no reasonable and probable cause for setting the law in motion against the plaintiff; (iv) the criminal proceedings was actuated with malice in that the defendant had a motive other than to only carry the law into effect; and (v) the plaintiff must prove damages. The facts in Jaafar’s case are the same with the instant case. There was no criminal charge set in motion against the plaintiff. [7] Learned counsel for the defendant also argued that the plaintiff’s reliance on Tetuan Bee Ling’s case ia misconceived as the Court of Appeal in Jaafar’s case had pronounced that the causes of action preferred by the plaintiff in Tetuan Bee Ling’s case did not include the tort of malicious prosecution but the tort of malicious civil proceedings or malicious proceedings in bankruptcy. Further, since the bankruptcy proceedings commenced against the plaintiff in this case was based on a valid judgment and this fact is admitted by both parties, this itself makes it conclusive that the defendant had a reasonable and probable cause to lodge bankruptcy proceedings. [8] Learned counsel also argued that Willers v Joyce (supra) does not apply as it conflicts with the Federal Court decision in Rawther’s case (s 3 of the Civil Law Act 1956). STRIKING OUT PROCESS UNDER O 18 r 19 ROC 2012 [9] Under O 18 r 19 of the ROC 2012 the Court has the power to strike out the whole or part of any pleading which discloses no reasonable cause of action, or which is scandalous, frivolous or vexatious, or which may prejudice, embarrass or delay the fair trial of the action, or which is Page 8 of 12 otherwise an abuse of the process of the court. The process of striking out pleadings under this rule is summary in nature. [10] The following principles upon which the Court acts in exercising its summary powers of striking out pleadings are well settled and established in the oft-cited decision of the then Supreme Court in Bandar Builder Sdn Bhd (supra): The court’s power of striking out pleadings is exercisable only in plain and obvious cases and where no reasonable amendment would cure the defect; The Court in exercising its powers should not conduct a minute examination of the documents and facts of the case in order to ascertain whether the party has a cause of action; If the point requires substantial argument and careful consideration, it may be more appropriate to set it down for trial under O 33 r 2 of the ROC 2012; the Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious in the sense that it is plainly evident that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks; and So long as the pleadings disclose some cause of action or raise some question fit to be decided by the Judge, the mere fact that the Page 9 of 12 case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out. DECISION [11] The defendant’s principal argument is that the tort of civil malicious prosecution is non-existent; learned counsel cited numerous authorities in support of his proposition. If the defendant’s contention is correct, then this is a plain and obvious case that the pleadings discloses no reasonable cause of action, then the statement of claim must be struck out. Is the defendant’s argument borne out? In order to answer this question, it is necessary to set out below a brief treatise on the tort of malicious prosecution in the context of this appeal. TORT OF MALICIOUS PROSECUTION [12] The tort of malicious prosecution is a common law wrong. It strikes at the balance between two countervailing interests of social importance: safeguarding the individual from being harassed by unjustified litigation and encouraging citizens to aid in law enforcement. On the one hand, it is the right of every person to put the law in motion if he does it with the honest intention of protecting his own or the public interest. Conversely, if legal proceedings are initiated against an individual for a collateral purpose or without any proper basis or foundation for believing that they will ultimately succeed, that individual may suffer great injury during the course of the proceedings. That individual who is aggrieved by legal proceedings improperly instituted against him may sue for damages for the tort of malicious prosecution. Page 10 of 12 [13] Under English law, the tort of malicious prosecution is limited to malicious institution of criminal prosecutions and is not generally available in civil proceedings. It has, however, been extended to civil claims which constitute special cases of legal process such as the malicious prosecution of a petition in bankruptcy or the malicious presentation of a winding-up petition (as observed by Lord Steyn in Gregory v Porthmouth City Council [2000] 1 All ER 560 HL; see also KHK Advertising Sdn Bhd v Siera Management Sdn Bhd (dalam likuidasi) [2018] 3 AMR 285 (CA) at para. [52]). Indeed, it has also been opined in Bullen & Leake & Jacob’s Precedents of Pleadings, Fourteenth Edition Vol. 1 at para. 2- 06 that an action may lie for the abuse of ordinary civil process in respect of a tort of maliciously instituting civil proceedings. In most respects, the matters which must be proved and pleaded are fundamentally the same except that the proceedings do not need to have been determined in the claimant’s favour. [14] Applying the established principles we are of the considered view that this is not a plain and obvious case for the Court to exercise its power of striking out the statement of claim. In this case, the plaintiff’s cause of action is predicated on the tort of maliciously instituting civil proceedings. In particular, it is pleaded in para. 23 of the statement of claim that the defendant had maliciously instituted bankruptcy proceedings against the plaintiff. The circumstances leading to the making of an ROAO against the plaintiff and the annulment of the ROAO are contained in paragraphs 3 to 22 of the statement of claim. We do not think that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to his claim. Whilst the cause of action may not have been appropriately framed in the statement of claim, we are not satisfied that no reasonable amendment would cure the defect. Page 11 of 12 [15] In his written judgment, the learned judge opined that the plaintiff cannot sue for the tort of abuse of process as there is no evidence to prove mala fide on the part of the defendant in taking out the bankruptcy proceedings against the plaintiff. With respect, we do not think that the learned ought to have conducted a minute examination of the documents and facts of the case in arriving at his finding. The established principles are quite clear that in a summary process under O 18 r 19, the Court should not conduct a minute examination of the documents and facts in order to ascertain whether the plaintiff has a cause of action. [16] At any rate, we are in agreement with the views expressed in preceding para. [12] and the undisputed facts of the instant appeal fall within the special cases of legal process such as the malicious prosecution of a petition in bankruptcy. As such, we are of the considered view that on the facts, the summary process of striking out the pleadings is not suitable and the matter should proceed to full trial to be decided on viva voce and documentary evidence. [17] In consequence thereof, we allowed the appeal with costs in the cause and remitted the matter to the High Court for full trial. sgd (Vernon Ong) Judge Court Of Appeal Malaysia Dated : 4th July 2018 Page 12 of 12 Counsel: For the Appellant: S. Surendran Messrs Ranuga, Yogeswari & Surendran For the Respondent: Barry Goh Meng Yew Messrs Iza Ng Yeoh & Kit