Dismissal For Want of Prosecution Flashcards
What is the purpose of Dismissal for Want of Prosecution? What Provision? Who applies for dismissal for want of Prosecution?
Takes place when Plaintiff has failed to take the necessary steps in the case.
P’s action may be dismissed via:-
1. The Rules in ROC
2. Inherent jurisdiction of the Court under Order 92 Rule 4
Can be applied by the Defendant or Court on it’s own motion
Dismissal For Want of Prosecution under the rules
- P’s action by WRIT may be dismissed if he fails:-
🈚To give statement of claim - Order 19 Rule 1
🈚To comply with order of discovery - Order 24 Rule 16
🈚 To comply with interrogatories - Order 26 Rule 7
🈚 To comply with directions given after commencement of proceedings or at pre-trial case management - Order 34 Rule 1(3); Rule 2(3)
- P fails to prosecute his action by Origination Summons with due despatch - Order 28 Rule 10(1)
*Non-exhaustive List
How can Plaintiff defend himself?
P can provide reasonable excuse.
Where P fails to comply with directions, such as delay:-
1️⃣ The Court will dismiss the action (Court has discretion to dismiss P’s action)
🆘 If P’s action is dismissed, he may file fresh action if the limitation period has NOT expired🆘
2️⃣The Court has discretion to extend the time for the P
[Syed Mahadzir bin Syed Abdullah] - Where the P was told to submit to submit statement of claim within 14 days.
[Dismissal for Want of Prosecution under Inherent Jurisdiction of the Court - Order 92 Rule 4]
What are the grounds for Dismissal for want of Prosecution?
Birkett v James - Federal Court
😈 P’s default had been intentional and contumelious; or
😈 P’s default had been inordinate and inexcusable which has prejudiced the Defendant.
Birkett v James
Held:-
Where an action was dismissed for want of prosecution before the limitation period had expired, the court would have NO POWER to prevent the plaintiff from starting a fresh action.
However, the inherent power of the Court to dismiss P’s action for want of Prosecution should be exercised where:-
😈 P’s default had been intentional and contumelious; or
😈 P’s default had been inordinate and inexcusable which has prejudiced the Defendant.
Which Malaysian case approved the grounds under Birkett v James?
Tog Hock Thye
Meaning of contumelious?
[Wallersteiner v Moor]
Means abuse of the process of the Court or disobedience of Court order
Where P is guilty of “Intentional or Contumelious” conduct, will he be barred from filing a fresh action?
Yes.
⛔ Where P’s action is intentional and contumelious, P’s action will be dismissed; and
⛔ P cannot file fresh action even though the limitation period HAS NOT expired.
[Toh Hock Thye]
1️⃣ Inordinate and Inexcusable Delay
[Datuk Samy Vellu]
Delay is excusable if D had agreed but not to the extent that P grossly exceed D’s indulgence.
2️⃣ The delay prejudice the other party - what type of prejudice?
✅
[Vegetable Oil Sdn Bhd]
P’s delay which was caused by the parties “earnest desire” to reach a settlement did not prejudice D
AFFECT CONDUCT OF TRIAL - PREJUDICE D
🏙️ [Negara Properties Sdn Bhd]
- if the trial mainly based on oral evidence of the witnesses/parties, a long delay which would impair the memory of the witness.
- hence would prejudice D as it affects the conduct of the trial.
PREJUDICE ON BUSINESS OR FINANCIAL INTEREST
[Damodaran]
- P only issues Summons for direction and set down action 7 years after the action was begun.
- D, who bought the land for development could not proceed as planned due to the pending proceedings.
- D applied under Order 34 Rule 2 to dismiss P’s action for want of prosecution.
Significance of Syed Omar Syed Mohamed’s case
- Discovery order in first suit was a peremptory order and that the P had not complied with the order but proceed nevertheless to file the second suit in identical terms.
Held:-
- Second suit as an abuse of the Court process and struck out. (P is barred from taking fresh action)
- It was also held that the principle in Birkett v James had no application where a dismissal was granted at the court’s OWN DISCRETION (by Order 34) whether to allow the Plaintiff to file a fresh action even though limitation period HAS NOT expired.
⚠️It should be noted that the Birkett v James principle still applies to other directions but NOT under the regime of Order 34 ROC⚠️
Can P argue that the D failed to expedite proceedings? Will his claim be saved from being dismissed for want of prosecution?
No.
[Negara Properties]
The ROC impose a duty on the P to get the machinery moving for the early Disposal of P’s claim.
