Monday, January 19, 2009

Merit or Technicality; which one should prevail?

[1997] 2 MLJ 565 - Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor

Judgement - Mohd Azmi

"While the procedural requirements in relation to applications to commit and committal orders are there to be obeyed and to protect the contemnor, if there is non-compliance with the requirements which does not prejudice the contemnor, to set aside the order purely on the grounds of technicality is contrary to the interests of justice. As long as the order made by the judge was a valid order, the approach of this court will be to uphold the order in the absence of any prejudice or injustice to the contemnor as a consequence of doing so."

"In the present case, it is necessary to see the purpose of the rule in breach of which judgment was entered. If the requirements of O 13 r 6(1) are a mere technicality, as was contended by En Das, then the judge ought to have properly disregarded the breach and permitted the judgment to stand." 


Judgement - Raja Azlan Shah

"In the present case the plaintiff issued his writ and served it on the defendants well within time. They knew perfectly well that the plaintiff was claiming damages for negligently causing the death of the deceased at the Penang Adventist Hospital. Yet they seek to bar him on the most technical point — just because he omitted to indorse the words “for the benefit of the dependants, etc.” on the writ. We do not think that we should allow this technical objection to prevail. We should apply the well-known words of Holroyd Pearce LJ in Pontin v Wood (supra , page 297) when he said that the court would give its aid “to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects”. That in our opinion will fully satisfy O 20 r 4 which reads:

 “Whenever a statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any, amendment of the indorsement of the writ.”

 "We feel the learned judge had failed to direct his mind within the ambit of this general rule."

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