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Malayan Law Journal Articles/1999/Volume 2/A PACK OF NEW RULES FROM LORD WOOLF
[1999] 2 MLJ xlix
Malayan Law Journal Articles
1999

A PACK OF NEW RULES FROM LORD WOOLF

Choong Yeow Choy
Associate Professor, Faculty of Law, University of Malaya
In his final report to the Lord Chancellor on the civil justice system in England and Wales in 1996, the Right
Honourable Lord Woolf, Master of the Rolls promised a revamp of the rules governing civil litigation in
England and Wales.1 Lord Woolf has made good this promise as come 26 April 1999, the new Civil
Procedure Rules2 will come into force in England and Wales.
The new CPR replaces the existing Rules of the Supreme Court 19653 and the County Court Rules
1981.4The new CPR has very far reaching implications. According to a commentator, the CPR represents 'the
biggest ever shake-up of the civil litigation system'. 5 In his foreword, The Right Honourable Lord Irvine of
Lairg, the Lord Chancellor has this to say:
On Monday 26 April 1999, the new Civil Procedure Rules, Practice Directions and forms published in this volume will
come into force, heralding the beginning of a programme of the most fundamental change to the civil justice system
since the reforms of Lord Selborne in the 1870s. They amount to a unified code of civil procedure which will apply to all
civil courts, ending unnecessary distinctions of practice and procedure between the High Court and the county courts.
Plain English has been adopted throughout, so far as is consistent with the technical nature of the subject matter.
The new Rules and Practice Directions derive from concerns similar to those which motivated the work of Lord
Selborne: widespread public dissatisfaction with the delay, expense, complexity and uncertainty of pursuing cases
through the civil courts. That dissatisfaction found its most powerful voice in Lord Woolf's two Reports on Access to
Justice.

2 MLJ xlix at l
This new unified code of civil procedure now contains only 51 Parts. This is as a result of the merging of
some of the different procedures into one. The set of Rules was a result of the conscious effort to merge,
integrate and harmonise the rules and procedures that existed under the Rules of the Supreme Court 1965
and the County Court Rules 1981, wherever possible.6
This new procedural code has the overriding objective of enabling the court to deal with cases justly and
dealing with a case justly includes, so far as is practicable:

1a)
1b)
1c)

ensuring that the parties are on an equal footing;

saving expense;
dealing with the case in ways which are proportionate:
1.
to the amount of money involved;
1.
to the importance of the case;
1.
to the complexity of the issues; and
1.
to the financial position of each party; and

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1d)

ensuring that it is dealt with expeditiously and fairly; and allotting to it an appropriate share of
the court's resources, while taking into account the need to allot resources to other cases.
7

The court is required to give effect to the overriding objective when it exercises any power given to it by the
Rules or interprets any rule.8 As for the parties, they are duty bound to help the court to further the overriding
objective.9 Since 'case management' is the all important feature under the Rules, the court must actively
manage cases by:

2a)
2b)
2c)
2d)
1e)
1f)
1g)
1h)
1i)
1j)
1k)
1l)

encouraging the parties to co-operate with each other in the conduct of the proceedings;
identifying the issues at an early stage;
deciding promptly which issues need full investigation and trial and accordingly disposing
summarily of the others;
deciding the order in which issues are to be resolved;
encouraging the parties to use an alternative dispute resolution procedure if the court considers
that appropriate and facilitating the use of such procedure;
helping the parties to settle the whole or part of the case;
1
2 MLJ xlix at li
fixing timetables or otherwise controlling the progress of the case;
considering whether the likely benefits of taking a particular step justify the cost of taking it;
dealing with as many aspects of the case as it can on the same occasion;
dealing with the case without the parties needing to attend at court;
making use of technology; and
giving directions to ensure that the trial of a case proceeds quickly and efficiently.
10

This short article shall not be examining each and every provision in the CPR as such a task would be
insurmountable. Instead, this article shall look at one particular aspect of the overriding objective, ie the
dealing of a case in an expeditious and fair manner without the need for trial. The procedure by which the
court may decide a claim or a particular issue without a trial, ie by summary judgment, is set out in Part 24 of
the CPR. What are the principal differences, if any, between Part 24 of the CPR and our existing O 14, O 43,
O 81 and O 89 of the Rules of the High Court 1980 and O 26A of the Subordinate Courts Rules 1980?
Should our Rules be similarly amended? Our Rules Committee would certainly be monitoring the
implementation of the CPR with much interest, not only on the aspect of summary judgment, but on the
administration of the civil justice system in Malaysia as a whole.
Who may apply for summary judgment
Under r 24.2 of the CPR, summary judgment is available to both a claimant11 and a defendant on the whole of
a claim or on a particular issue.
Under our O 14 r 1(1) of the Rules of the High Court 1980, only a plaintiff is entitled to make an application
for summary judgment on a claim or a particular part of such a claim. A defendant is not entitled to apply for
summary judgment unless he has served a counterclaim on the plaintiff and his application is with regard to a
claim made in the counterclaim or to a particular part of such a claim. 12 Likewise, in a claim for an account
2 MLJ xlix at lii
pursuant to O 43 of the Rules of the High Court 1980, only a plaintiff is entitled to make such an application.
The same applies to applications for summary judgment under O 81 and O 89 of the Rules of the High Court
1980 and O 26A of the Subordinate Courts Rules 1980.
What then is the summary judgment against a claimant/plaintiff when the defendant has not served a
counterclaim as envisaged in Part 24 of the CPR? Such a procedure is in effect an application by a
defendant to strike out the claimant's/plaintiff's pleadings under our O 18 r 19(1) of the Rules of the High
Court 1980 and the former O 18 r 19(1) of the Rules of the Supreme Court 1965. 13

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In his final report to the Lord Chancellor on the civil justice system in England and Wales, Lord Woolf had
said (Chap 12 at para 32):
In the interim report, I recommended a single procedure for summary disposal, applying a single test for its exercise.
The single procedure would replace existing separate procedures which currently allow:

1a)
1b)
1c)

summary judgment on the application of the plaintiff;

summary determination of a point of law;
striking out pleadings which discloses no cause of action on the defendant's application.

This is where we see the different rules under the Rules of the Supreme Court 1965 being merged and
integrated into a single procedure under the CPR. Be that as it may, the power that was conferred on the
court under O 18 r 19(1) of the Rules of the Supreme Court 1965 is now, it is submitted, contained in Part 3
of the CPR under the heading, 'Court's General Powers of Management'. In particular, reference must be
made to r 3.4 and r 3.5 which read as follows:
POWER TO STRIKE OUT A STATEMENT OF CASE

1.4 (1)

In this rule and rule 3.5, reference to a statement of case includes reference to part of a
statement of case.

1.

The court may strike out a statement of case if it appears to the court --

1.

that the statement of case discloses no reasonable grounds for bringing or defending
the claim;

1.

that the statement of case is an abuse of the court's process or is otherwise likely to
obstruct the just disposal of the proceedings; or

1.

that there has been a failure to comply with a rule, practice direction or court order.

1.

1.

When the court strikes out a statement of case it may make any consequential order it
considers appropriate.

1.

Where --

1.
2.
2.
2.

2 MLJ xlix at liii

the court has struck out a claimant's statement of case;

the claimant has been ordered to pay costs to the defendant; and
before the claimant pays those costs, he starts another claim against the same
defendant, arising out of facts which are the same or substantially the same as those
relating to the claim in which the statement of case was struck out, the court may, on
the application of the defendant, stay that other claim until the costs of the first claim
have been paid.

2.

1.

Paragraph (2) does not limit any other power of the court to strike out a statement of case.

1
JUDGMENT WITHOUT TRIAL AFTER STRIKING OUT

1.5(1)

This rule applies where --

1.

the court makes an order which includes a term that the statement of case of a party shall be
struck out if the party does not comply with the order; and

1.

the party against whom the order was made does not comply with it.

1)

A party may obtain judgment with costs by filing a request for judgment if --

2.
2.

the order referred to in paragraph (1)(a) relates to the whole of a statement of case; and
where the party wishing to obtain judgment is the claimant, the claim is for --

1.

a specified amount of money;

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1.
1.

an amount of money to be decided by the court;

1.

any combination of these remedies.

delivery of goods where the claim form gives the defendant the alternative of paying
their value; or

3.
3

1)

The request must state that the right to enter judgment has arisen because the court's order has not
been complied with.

1)

A party must make an application in accordance with Part 23 if he wishes to obtain judgment under
this rule in a case to which paragraph (2) does not apply.

The scope of summary judgment

Although the provision in our O 14 r 1(1) of the Rules of the High Court 1980 is very general in nature, it
would be a fallacy to assume that O 14 of the Rules of the High Court 1980 may be invoked in every claim.
Claims excluded by O 14 r 1 (2)(a) and (b) of the RHC 1980
Under our Rules of the High Court 1980, summary judgment is not available if an action contains a claim by
a plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction and breach of promise
2 MLJ xlix at liv
of marriage.14 In addition, O 14 judgment is also not available in an action which includes a claim by the
plaintiff based on an allegation of fraud.15
What is the basis for the exclusion of the above claims from summary judgment proceedings? Prior to the
coming into force of the CPR, these claims were also excluded from the O 14 procedure in England because
they give rise to the right of jury trial but such right does not exist in Malaysia. In England, O 14 r 1(2)(b) of
the Rules of the Supreme Court 1965 was subsequently deleted by RSC (Amendment) Order 1992 which
came into force on 1 June 1992. O'Hare and Hill in the 6th edition of their work, Civil Litigation, opined that
the revocation of O 14 r 1(2)(b) of the English RSC was a very welcome and sensible change as an action
where the plaintiff is a victim of fraud is the very situation where summary judgment is most required.
However, Nicholls and O'Connor LJJ in Newton Chemical Ltd & Ors v Arsenis,16 a case decided before the
coming into force of the English RSC (Amendment) Order 1992, made the suggestion that the Supreme
Court Rules Committee should consider the need for keeping O 14 r 1(2)(b) in force.
In Singapore, the Rules Committee long ago recognized the anomaly and the provisions in the Rules of the
Supreme Court in Singapore were amended in 1991. Since 1 August 1991, the scope of O 14 of the then
Rules of the Supreme Court in Singapore was considerably widened (and remains so today under the Rules
of Court) so as not to exclude the above claims from summary judgment proceedings. The restrictions in
respect of counterclaim were similarly removed.
With the coming into force of the CPR, r 24.3(1) now provides that the court may give summary judgment
against a claimant in any type of proceedings. Therefore there appears to be no restrictions on the type of
claims that may be brought under Part 24 of the CPR when the application is made by the defendant. 17
Where the application for summary judgment is made by a claimant, certain exceptions continue to apply.
This is because r 24.3(2) declares that the court may give summary judgment against a defendant in any
proceedings except:

2a)

proceedings for possession of residential premises against a tenant, a mortgagor or a person holding
over after the end of his tenancy; and

2b)

proceedings for an admiralty claim in rem.

2 MLJ xlix at lv
Claims for possession against tenants, mortgagors and tenants holding over

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As evident from above, the CPR does not allow a claimant to apply for summary judgment for possession of
residential premises against a tenant, a mortgagor or a person holding over after the end of her tenancy.
Such proceedings are different from summary proceedings for possession of land under O 113 of the
Supreme Court Rules 1965 and O 89 of our Rules of the High Court 1980. As explained by Gopal Sri Ram
JCA in Cheow Chee Khoon (t/a Cathay Hotel) v Abdul Johari bin Abdul Rahman,18 O 89 is summary
procedure meant primarily for the eviction of squatters. In Chiu Wing Wa & Ors v Ong Beng Cheng,19
Mohamed Azmi SCJ also explained that the summary procedure was introduced to deal with cases of
trespassers pure and simple.
Admiralty claims in rem
An admiralty claim in rem is excluded from summary judgment proceedings under O 14 r 1(2)(c) of the Rules
of the Supreme Court 1965. An admiralty action may be in rem or in personam. Such claims are not excluded
from O 14 judgment in Malaysia and Singapore. To understand the continued exclusion of proceedings for an
admiralty claim in rem under r 24.3(2)(b) of the CPR, one may make reference to the following cases. The
first is the Privy Council decision from Singapore in The 'August 8th'; The 'August 8th' Owners v Costas
Bachas.20
The issue of whether a plaintiff in an Admiralty action in rem can avail herself of the provisions of Order 14
arose because a plaintiff in such a claim, as stated in the foregoing paragraph, is precluded in England from
Order 14 judgment. In The 'August 8th', the respondent, as the former Master of the ship, 'August 8th',
commenced an Admiralty action in rem in Singapore against the appellants who were owners of the ship for
cash advances to crew, for disbursements and for port expenses. After the appellants entered an
unconditional appearance, the respondent applied for summary judgment under O 14 of the Rules of the
Supreme Court of Singapore 1970 which is in pari materia with our O 14 of the Rules of the High Court 1980.
Final judgment was entered in favour of the respondent and the appellants applied for an order to set aside
the judgment on the ground that the Registrar had no jurisdiction to hear an application for summary
judgment under O 14 in an Admiralty action in rem. The application by the appellants was dismissed by the
High Court and the Court of Appeal.21 On appeal to the Privy Council, one of the arguments
2 MLJ xlix at lvi
advanced by counsel for the appellants was that until 1975, under the Rules of the Supreme Court in
England, O 14, dealing with summary judgments, did not apply to Admiralty actions at all, whether in rem or
in personam; and that even when paras (1) and (2) of O 14 r 1 were amended in 1975, as they were, so as to
extend the application of O 14 to Admiralty actions in personam, express words were nevertheless inserted
in sub-paras (c) of para (2) of r 1 so as to exclude the application of the Order to Admiralty actions in rem.
In response to the above argument, Lord Brandon of Oakbrook in delivering the decision of the Board said:
In their Lordships' opinion, the situation in this respect as it now exists under the present Rules of the Supreme Court in
England cannot have any bearing whatever on the situation which exists under the differently worded Rules of the
Supreme Court of Singapore, 1970. So far as the situation which existed in England before 1975 is concerned, there
are historical reasons, derived from the organization of the High Court in England in a number of separate divisions,
which explain the fact that Admiralty actions, whether in rem or in personam, were formerly excluded from the scope of
O 14. As to the continued exclusion, even after the amendment of the relevant rules in 1975, of Admiralty action in rem
from the scope of O 14, there may or may not be sensible reasons for it. But, whether there be sensible reasons or not
for such exception, so far as English procedure is concerned, their Lordships can see no justification whatever for
importing into para (2) of O 14, r 1 of the Rules of the Supreme Court of Singapore 1970, which do not, and it must be
presumed intentionally do not, contain any such exception.22

In Emilia Shipping Inc v State Enterprises for Pulp and Paper Industries,23 the High Court of Singapore
referred to the above decision and expressed the view that the principle should also apply to an Admiralty
action in personam.
Although The 'August 8th'' and Emilia Shipping Inc v State Enterprises for Pulp and Paper Industries are not
binding on the Malaysian courts, it is submitted that the conclusion arrived at was based on sound reasoning
and the courts in Malaysia should adopt the same interpretation. The High Court in Emmanuel E Okwuosa &
Ors v Owners of the ship and other persons interested in the ship MV Brihope (Hong Leong Leasing Sdn

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Bhd, Interveners)24 did in fact refer to the judgment of Lord Brandon in The 'August 8th' and agreed with the
reasoning set out. Vincent Ng J in delivering the judgment of the court had this to say:
... my view is that the procedure adopted by the plaintiffs here does not run foul of the RHC. Here, admiralty cases
occur only rarely and far between, and we do not have, nor is it justified for us to have an admiralty court, governed by
specific procedures and rules for admiralty proceedings. Indeed,
2 MLJ xlix at lvii
in England they have an autonomous body headed by an Admiralty Marshal, who has his own funds to administer the
mechanics of a sale under the Admiralty Division. I am given to understand that Admiralty Division cases there are
disposed of so speedily that parties need not have recourse to O 14 procedure. As such, it is impractical and unrealistic
for Malaysian courts to be too strict on the procedures employed by the parties in admiralty cases. Such procedures
should be dictated according to the justice of the situation prevailing in our country.25

Claims against the government

Order 73 r 5 of our Rules of the High Court 1980 provides that no application against the government shall
be made under O 14 r 1 (and O 81 r 1) in any proceedings against the government. The same Order also
further provides that no application shall be made under O 14 r 5 of the Rules of the High Court 1980, ie a
claim for summary judgment on a counterclaim, in any proceedings by the government.
Order 73 r 5 is substantially the same as O 77 r 7 of the English Rules of the Supreme Court 1965. O 77 r 7
of the Rules of the Supreme Court 1965 continues to apply despite the coming into effect of the CPR. 26
Claims for an account
A claim for an account is an equitable remedy which only the High Court has jurisdiction to grant. 27 Order 43 r
1(1) of the Rules of the High Court 1980 provides that:
Where a writ is indorsed with a claim for an account or a claim which necessarily involves taking an account, the
plaintiff may, at any time after the defendant has entered an appearance or after the time limited for appearing, apply
for an order under this rule.

Hence, unlike O 14 which is of general application, O 43 only applies to two very specific claims, ie to
application made for a summary order for accounts or inquiries. O 43 r 1 of the Rules of the High Court 1980
is in pari materia with O 43 r 1 of the Rules of the Supreme Court 1965.
Under the CPR, all such claims can now be made under Part 24 by any party to the proceeding. Hence, O 43
r 1 of the Rules of the Supreme Court 1965 has now been superseded by Part 24. 28
2 MLJ xlix at lviii
Claims under Order 81 of the RHC 1980
Order 81 of the Rules of the High Court 1980 supersedes the old O 14A of the repealed Rules of the
Supreme Court 1957. In England, a similar provision is found in O 86 of the English Rules of the Supreme
Court 1965. The present O 81 r 1(1) of the Rules of the High Court 1980 reads as follows:
In an action begun by writ indorsed with a claim --

3a)

for specific performance of an agreement (whether in writing or not) for the sale, purchase or
exchange of any property, or for the grant or assignment of a lease of any property, with or without an
alternative claim for damages; or

3b)
2c)

for rescission of such an agreement; or

for forfeiture or return of any deposit made under such an agreement,

the plaintiff may, on the ground that the defendant has no defence to the action, apply to the Court for judgment.

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As in the case of O 14, this Order enables a plaintiff to obtain summary judgment without having to proceed
to a full trial. But unlike O 14, this Order only applies to the following claims, namely, an action:

1i)
1ii)
1iii)
1iv)

for specific performance;

for rescission;
for forfeiture; or
for the return of any deposit

of an agreement (whether in writing or not) for the sale, purchase or exchange of any property, or for the
grant or assignment of a lease of any property, with or without an alternative claim for damages. Hence,
whilst O 14 remains a general provision, O 81 is specific in that it is only limited to those claims stated above.
Once again, under the new CPR, all such claims can now be made under Part 24. 29
Point of law and construction of document
Is an action which requires the court to determine questions of law or the need to construe documents or
statutes appropriate for summary judgment? In Malaysia, the answer to the above question can be found in
cases such
2 MLJ xlix at lix
as Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd,30 Esso Standard Malaya Bhd v Southern Cross
Airways (M) Bhd,31 Lee Wah Bank Ltd v Joseph Eu,32 Carlsberg Bhd v Soon Keng Aw & Sons Sdn Bhd,33
and Fadzil bin Mohamed Noor v Universiti Teknologi Malaysia.34 These principles have yet to be codified in
the Rules of the High Court 1980. However, in England, under the Rules of the Supreme Court 1965,
applications for disposal of cases on points of law or construction of any document is governed separately by
O 14A.
Under the new CPR, the Practice Direction to Part 24, in particular, para 1.3 now clarifies that an application
for summary judgment under r 24.2 may be based on:

4a)
4b)
3c)

a point of law (including a question of construction of a document);

the evidence which can reasonably be expected to be available at trial or the lack of it; or
a combination of these.

Test for summary judgment

Although a claimant may satisfy the court that his claim is not excluded from O 14 judgment, this does not
necessarily mean that the claimant would succeed in his application for summary judgment. Under our O 14 r
1 of the Rules of the High Court 1980, the plaintiff or claimant must satisfy the court that the defendant has
no defence. Under O 14 r 3 of the Rules of the High Court 1980, judgment may be entered against a
defendant unless the court dismisses the plaintiff's application (on the ground of non-compliance with the
procedural requirements) or the defendant satisfies the court that there is an issue or question in dispute
which ought to be tried or that there ought for some other reason to be a trial of that claim.
This has always been the position as summary judgment is meant for cases which are so plain and obvious.
The plaintiff must have an unanswerable case. In the words of Goff LJ in European Asian Bank AG v Punjab
and Sind Bank (No 2),35 'the policy of O 14 is to protect unreasonable delay in cases where there is no
defence'.
The test 'an issue to be tried' and 'some other reason to be a trial' has been explained in numerous decisions
and these cases are all found in the Supreme Court Practice (the White Book) and the Malaysian Court
Practice.
2 MLJ xlix at lx

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Interestingly, Part 24 of the CPR has chosen to use the phrase 'no real prospect of succeeding on the claim
or issue' as the ground for the granting of summary judgment. The approach to be adopted by the court is
found in the Practice Direction to Part 24. The relevant paragraphs read as follows:
Where a claimant applies for judgment on his claim, the court will give that judgment if:

1.1 (1)
2.

the claimant has shown a case which, if unanswered, would entitle him to that judgment, and
the defendant has not shown any reason why the claim should be dealt with at trial.

1.2

Where a defendant applies for judgment in his favour on the claimant's claim, the court will give that
judgment if either:

1.
3.

the claimant has failed to show a case which, if unanswered, would entitle him to judgment, or
the defendant has shown that the claim would be bound to be dismissed at trial.

1.3

Where it appears to the court possible that a claim or defence may succeed but improbable that it will
do so, the court may make a conditional order, as described below.

A prudent move would be to wait for further clarification or for the above to be interpreted by the court.
Procedure
In line with the overriding objective that cases are to be dealt with expeditiously and fairly, r 24.4(1) of the
CPR provides that a claimant may not apply for summary judgment until the defendant against whom the
application is made has filed an acknowledgment of service. Where the defendant has filed a defence, a
claimant is now precluded from applying for summary judgment unless the court gives permission or a
practice direction provides otherwise.36
Rule 24.4(2) of the CPR further provides that if a claimant applies for summary judgment before a defendant
against whom the application is made has filed a defence, that defendant need not file a defence before the
2 MLJ xlix at lxi
hearing. Under r 24.4(3) of the CPR, where a summary judgment hearing is fixed, the respondent (or the
parties where the hearing is fixed of the court's own initiative) must be given at least 14 days' notice of: (a)
the date fixed for the hearing; and (b) the issues which it is proposed that the court will decide at the
hearing.37
According to para 2 of the Practice Direction to Part 24 of the CPR, the application notice must include a
statement that it is an application for summary judgment made under Part 24. In addition, the application
notice or the evidence contained or referred to in it or served with it must: (a) identify concisely any point of
law or provision in a document on which the applicant relies; and/or (b) state that it is made because the
applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or
issue or (as the case may be) of successfully defending the claim or issue to which the application relates. In
either case the application must state that the applicant knows of no other reason why the disposal of the
claim or issue should await trial. Unless the application notice itself contains all the evidence (if any) on which
the applicant relies, the application notice should identify the written evidence on which the applicant relies.
The Practice Direction also explains that the above does not affect the applicant's right to file further
evidence under r 24.5(2) of the CPR and that the application notice should also draw the attention of the
respondent to r 24.5(1) of the CPR.
If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing,
he must: (a) file the written evidence; and (b) serve copies on every party to the application, at least seven
days before the summary judgment hearing.38 If the applicant wishes to rely on written evidence in reply, he
must: (a) file the written evidence and; (b) serve a copy on the respondent, at least three days before the
summary judgment hearing.39

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What is noteworthy is the provision which allows the court on its own initiative to fix the hearing. 40 Where a
summary judgment hearing is fixed by the court on its own initiative, any party who wishes to rely on written
evidence at the hearing must file the written evidence and unless
2 MLJ xlix at lxii
the court orders otherwise, serve copies on every other party to the proceedings, at least seven days before
the date of hearing. On the other hand, any party who wishes to rely on written evidence at the hearing in
reply to any other party's written evidence must file the written evidence in reply and unless the court orders
otherwise, serve copies on every other party to the proceedings, at least three days before the date of
hearing.41 Rule 24.5(4) finally clarifies that written evidence need not be filed or served on a party if such
written notice has already been filed and served on the party.
The hearing
According to para 4 in the Practice Direction to Part 24 of the CPR, the hearing of the application will
normally take place before a Master or a district judge. The Master or district judge may direct that the
application be heard by a High Court judge (if the case is in the High Court) or a circuit judge (if the case is in
a county court).
Orders that the court may make
Once again, it is the Practice Direction to Part 24 of the CPR that sets out the orders that the court may make
on an application under Part 24 of the CPR. The orders that the court may make include:

2i)
2ii)
2iii)
2iv)

judgment on the claim;

the striking out or dismissal of the claim;
the dismissal of the application; and
a conditional order.

What is interesting is the use of the term 'include' in the Practice Direction. This would suggest that the
options mentioned above are not exhaustive.
It should be pointed out that an order to strike out or dismiss the claim and an order to dismiss the
application have entirely different consequences. In the former, the action comes to an end. In the latter, the
action or matter proceeds to trial. The former is used when an application under O 18 r 19(1) is invoked and
the latter is used when an application under O 14 is invoked. Since the former O 14 and O 18 r 19(1) of the
Rules of the Supreme Court 1965 have been merged to become Part 24 in the CPR, such an option is
understandable.
In Malaysia, the procedure for summary judgment under O 14 of the Rules of the High Court 1980 and the
procedure for striking out under O 18 r 19(1) of the same remain separate procedures. Hence, in an
application for summary judgment under O 14, the court has no power to dismiss the action.42
The Practice Direction to Part 24 of the CPR also clarifies that a conditional order is an order which requires
a party to pay a sum of money
2 MLJ xlix at lxiii
into court or to take a specified step in relation to his claim or defence, as the case may be. Failure to
comply with the condition will result in the dismissal of the party's claim or the striking out of the statement of
case.
It can be seen here that the former dichotomy between the granting of conditional or unconditional leave will
no longer be followed. Be that as it may, where a conditional order is made, it is submitted that the principles
as laid down in the case of Yorke Motors v Edwards43 should still apply.
Setting aside the order for summary judgment

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Order 14 r 11 of the Rules of the High Court 1980 provides that any judgment given against a party who does
not appear at the hearing of an application under r 1 or r 5 may be set aside or varied by the court on such
terms as it thinks just. This rule is in pari materia with O 14 r 11 of the Rules of the Supreme Court 1965.
A point which raises concern is the possibility of this rule being abused, ie of it being used as a device for
gaining time. When an application is made to set aside the order, the court will wish to be fully satisfied as to
the reason for the non-attendance at the hearing of the summons of the party against whom judgment was
given under O 14.44 According to Zakaria Yatim J (as he then was) in Development & Commercial Bank Bhd
v Cheah Theam Swee,45 the principle for setting aside a judgment in default of appearance under O 13 r 8 of
the Rules of the High Court 1980 applies similarly to an application to set aside a default judgment under O
14.
Under the new CPR, the principle concerning the setting aside of an order for summary judgment is found in
the Practice Direction to Part 24. It provides in para 8.1 that if an order for summary judgment is made
against a respondent who does not appear at the hearing of the application, the respondent may apply for
the order to be set aside or varied. On the hearing of the application under para 8.1, the court may make
such order as it thinks just. Reference should also be made to r 23.11 of the CPR which reads as follows:

1.13 (1) ;

Where the applicant or any respondent fails to attend the hearing of an application, the court may
proceed in his absence.

1)

Where --

3.
3.

the applicant or any respondent fails to attend the hearing of an application; and
the court makes an order at the hearing, the court may, on application or of its own initiative,
re-list the application.

2 MLJ xlix at lxiv

Case management
Since case management is an important feature in the CPR, it is not surprising that the court is required to
give 'case management directions' as to the future conduct of the case where the court dismisses the
application or makes an order that does not completely dispose of the claim. As to the 'case management
directions', one would have to return to Part 3 of the CPR which spells out the court's case management
powers.
Conclusion
Whether the above new procedure under Part 24 of the CPR, or, for that matter, all the provisions in the CPR
will achieve its objective, only time will tell. Whether the above procedure will and should be adopted in
Malaysia will be a decision entirely in the hands of the Rules Committee.
Apparently, the Queen's printer's hard copy of the Rules may be obtained for a princely sum of 250 pounds. 46
That is the cost for Access to Justice. But just as there is 'alternative dispute resolution', the alternative here
would be to download the CPR from the web.
1 Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO
London 1996.
2 Hereinafter CPR.
3 SI 1965/1776.
4 SI 1981/1687. Be that as it may, Part 50 of the new CPR provides that certain provisions previously contained in the Rules of
the Supreme Court 1965 and the County Court Rules 1981 would still apply. Reference must be made to Schedule 1 and
Schedule 2 of the CPR.

Page 12

5 Solicitors Journal, Vol 143 No 4 at 79.

6 See, for example, Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England
and Wales, HMSO London 1996, para 33 at p 123.
7 r 1.1(1) and (2) of the CPR.
8 r 1.2 of the CPR.
9 r 1.3 of the CPR.
10 r 1.4(1) and (2) of the CPR.
11 To ensure that 'plain English' is used, the term 'plaintiff' has been replaced with 'claimant' in the CPR.
12 O 14 r 5(1) of the Rules of the High Court 1980. Order 14 r 5 of the Rules of the High Court 1980 is substantially in pari
materia with O 14 r 5 of the Rules of the Supreme Court 1965. Under the CPR, counterclaims are now known as Part 20 Claim
and r 20.3(1) provides that a Part 20 Claim shall be treated as if it were a claim for the purposes of these Rules, except as
provided by this Part. Hence, a defendant with a counterclaim may still make an application for summary judgment under Part
24 of the CPR.
13 At this juncture, it should be pointed out that the term 'pleadings' has now been replaced with the phrase 'statements of a
case' under the CPR.
14 O 14 r 1(2)(a) of the Rules of the High Court 1980. See the corresponding O 26A r 1(2)(a) of the Subordinate Courts Rules
1980.
15 O 14 r 1(2)(b) of the Rules of the High Court 1980. See the corresponding O 26A r 1(2)(b) of the Subordinate Courts Rules
1980.
16 [1989] 1 WLR 1297.
17 But see claims against the government discussed below.
18 [1995] 1 MLJ 457.
19 [1994] 1 MLJ 89.
20 [1983] 1 MLJ 281.
21 The judgments of the High Court and the Court of Appeal are reported in [1980] 2 MLJ 179 and [1981] 1 MLJ 132
respectively.
22 Supra n 20 at pp 284-285
23 [1991] 2 MLJ 379.
24 [1995] 1 MLJ 676.
25 Ibid at p 688.
26 See Part 50 and Sch 1 of the CPR.
27 See s 69(d) of the Subordinate Courts Act 1948, (Act 92).
28 Note that the Accounts Practice Direction supplementing Part 40 of the CPR contains further provisions as to orders for
accounts and inquiries.
29 See Practice Direction to Part 24, in particular, paras 7.1-7.3 of the CPR.

Page 13

30 [1987] 2 MLJ 183.

31 [1972] 1 MLJ 168.
32 [1981] 1 MLJ 11.
33 [1989] 1 MLJ 104.
34 [1981] 2 MLJ 196.
35 [1983] 2 All ER 508; [1983] 1 WLR 642.
36 r 10.3 of the CPR sets out the period for filing an acknowledgment of service and r 15.4 sets out the period for filing a
defence. The general rule for the period for filing an acknowledgment of service is where the defendant is served with a claim
form which states that particulars of claim are to follow, 14 days after service of the particulars of claim. The general rule for the
period for the filing of a defence is: (a) 14 days after service of the particulars of claim; or (b) if the defendant files an
acknowledgment of service under Part 10, 28 days after service of the particulars of claim.
37 As to the general rules concerning the application for orders from the court, reference must be made to Part 23 of the CPR.
38 r 24.5(1) of the CPR.
39 r 24.5(2) of the CPR.
40 Where the court exercises its powers of its own initiative, r 3.3 of the CPR will apply.
41 r 24.5(3) of the CPR.
42 See Diamond Peak Sdn Bhd v Tweedie [1980] 2 MLJ 31.
43 [1982] 1 All ER 1024.
44 The Supreme Court Practice 1999, (Sweet & Maxwell, 1998).
45 [1989] 2 MLJ 496.
46 This however, comes with a monthly updating service.