APRIL 25 — The justice system exists as the last bastion of justice for the ordinary citizens. The courts are an extremely important component of the so-called separation of powers in a democracy. 

This is one reason to maintain and protect the independence of the judiciary. The justice system is the mechanism that upholds the rule of law. Our courts provide a forum to resolve disputes and enforce laws in a fair and rational manner.

It is also a forum to test the application and various aspects of a law. The judges are free to apply the law without fear or favour and, without regard to the government’s wishes or the weight of public opinion.

In other words, the courts act in accordance with, and upholds the rule of law.

The rule of law and the court processes, however, can be abused by unscrupulous litigants who have ulterior and other motives than the remedy that they are manifestly or apparently seeking.

It may become a weapon with which malicious persons may inflict real injury or damage on others. In layman’s language, this means that A may start a legal action against B even though he knows he has no case to stand on, for various other purposes.

These purposes could be, for example, to embarrass the defendant, to cause some other economic, social or political injury.

In reality, a person who is sued, for example, for some debt may have difficulty getting a loan from the bank or a business contract even though the trial has not even begun.

A person may sue a politician for something simply to cause political embarrassment or for some political strategy or objective.

There are various instances where the court process can be abused. In such cases, what does the defendant do since he has suffered a wrong?

The position is quite clear in criminal proceedings, where if the criminal process has been abused such that a person has obviously been wrongly charged in court, under certain conditions, the person will have a remedy for malicious prosecution. However, in Malaysia, the position is not exactly clear for the tort of malicious prosecution of civil proceedings. 

In our courts, Mahadev Shankar J. (as he then was) doubted the existence of a tort of malicious prosecution of civil proceedings in Gasing Heights Sdn Bhd v Aloyah binti Abdul Rahman & Ors [1996] 3 MLJ 259.

In Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 MLJ 425, the Court of Appeal appears to have implicitly accepted that Malaysian law did not recognise a tort of malicious prosecution of civil proceedings.

To date, there is no Federal Court decision on the matter.

The question still remains whether the defendant can be “compensated” for the wrong he has suffered due to being wrongly and maliciously sued for an ulterior purpose by clearly abusing the court process.

Are costs obtained by the successful defendant sufficient compensation for the injury, time wasted, and agony that he may have suffered?

What is clear, however, is that Order 18 Rule 19(1) of Rules of Court provide for a civil action to be struck out under certain conditions for abuse of court process. If it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject-matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process.

The Supreme Court in Bandar Builder Sdn Bhd & Ors has fashioned the test to be adopted in striking out applications under any of the four limbs of O.18 r.19(1) of the Rules of the High Court (RHC), as being whether the “case or claim is obviously unsustainable”, whether “there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable” and whether the “pleadings have raised some issues which require serious discussion”.

The power to strike out pleadings, however, is sparingly used by the courts because of its drastic nature. Since O.18 r.19(1) of the RHC is coercive in nature and is exercised by summary process, the court exercises this power with the greatest of care and circumspection and only in the clearest case.

This is because the defendant may still be “vindicated” at the end of the trial if he wins but the plaintiff will be precluded from advancing his right of complaint if the suit is struck out.

A successful defendant is considered vindicated by the very fact that he has won the case and costs have been awarded to him.

In reality, however, the costs awarded by the courts may not cover the actual expenses incurred by the defendant and leave the defendant somewhat at some economic loss, not to mention other “non-monetary loss” such as emotional distress and so on. Again, a sense of wrong is felt by the defendant.

In a striking out action, the defendant also has to show that the civil suit against him is unsustainable, which is not easy in most cases.

Further, the defendant may have practical difficulty in proving the ulterior motive unrelated to the subject matter of the litigation or even the injury he suffers.

Thereby, it may be viewed as unavoidable collateral consequence.

The unfortunate fact is that an “innocent” defendant may in some cases, in reality, come out as a “loser” even though he has won the litigation.

In the upshot, I am supportive of the trend in most courts today to encourage the litigants to mediate and to arrive at settlement before commencement of trials and I applaud the efforts of these remarkable and just judges as they save everyone agony, time and costs.

In some instances, however, it is the lawyer who is the stumbling block to a settlement and for this reason, I encourage the presence of the litigants before the judge.

* Jahaberdeen is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at rapera.jay@gmail.com.  

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.