A striking out order (Order) is often described to be a draconian order. In this regard, the UK Supreme Court in the case of Summers v Fairclough Homes Ltd [2012] 1 WLR 2004 commented that:
“The draconian step of striking a claim out is always a last resort, a fortiori where to do so would deprive the claimant of a substantive right to which the court had held that he was entitled after a fair trial. It is very difficult indeed to think of circumstances in which such a conclusion would be proportionate. Such circumstances might, however, include a case where there had been a massive attempt to deceive the court but the award of damages would be very small.”
The Order may not be one that is granted easily, however there are still a platitude of grounds that the courts consider when deciding whether or not to grant the Order. Among the less known grounds that the courts consider when granting the Order is prolixity of pleadings.
Striking Out: Prolixity
The basis of this ground is Order 18 rule 7 of the Rules of Court 2012 (ROC 2012), where the rule dictates that:
“Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits.”
The authority for pleadings to be struck off due to being prolix can be found in See Hua Realty Bhd v See Hua News Holding Sdn Bhd & Ors [2007] 7 MLJ 525 where the court held:
“The court is not a filter of debris (see Watson v Rodell 3 Ch D 380). Where a petition is nothing more than a jangled mass of complaints all lumped together over which the court is unable to make any finding at all, of either oppression or undue prejudice, because the petition is nothing more than an exercise in prolixity, then it must fall. It has long been held that where the cause papers are so framed as be too prolix, where they disclose immaterial facts, and set out at great length documents which could not be material to the issues at hand, such as to as embarrass the opposite party (see Cashin v Cradock 3 Ch D 376), such pleadings are liable to be, and have, on occasions, been struck out (see Davy v Garret (1877) 7 Ch D 473).”
The principle in See Hua Realty was later cited in Yong Lai Ling (p) v Ng Seow Poe [2015] 8 MLJ 351. In this regard, the court held that non-compliance with Order 18 rule 7 of the ROC 2012 can result in the claim being struck off as the provision is a mandatory one.
In Helen Jong v Wong Heng Kim @ Kevin Wong & Anor [2021] 1 LNS 1120, the High Court in dealing with an appeal against a striking out order, again emphasised the importance of complying with the rules of pleading which require that:
a) It states facts and not law
b) It states material facts and material facts only, concisely and not evasively
c) It states facts and not the evidence by which they are to be proved
d) It states such facts in a brief summary form
Again, in a fairly recent case, the court in Ismail bin Hashim v Inno Concrete Technologies Sdn Bhd & Anor [2022] 7 MLJ 200 cited the principles against prolix pleadings and endorsed the view that filing of prolix pleadings must be discouraged.
Commentary
Pleadings play a crucial role in civil actions. It was in this context, that the House of Lords in Farrell v Secretary of State for Defence [1980] WLR 172 observed that there is a trend to diminish the significance of pleadings, acknowledging that in the past, rigid adherence to their technicalities sometimes jeopardised justice and even led to its failure. Nonetheless to dismiss a criticism as merely a "pleading point" is unsound legally and in practice. The primary purpose of pleadings remains: to delineate the issues, inform the parties beforehand of the case they must address, and thereby enable all parties to prepare accordingly and act in the best interest of their respective clients.
The purpose of requiring pleadings and issues is to determine the genuine disagreements between the parties, narrow down the areas of contention, and identify where the two sides diverge. Therefore, it is evident that courts nowadays are increasingly inclined to strike out pleadings which are prolix.
While it is noted that the Order will not be granted by the courts lightly, a pleading which is nothing more than a jangled mass of complaints will readily be struck out by the courts.
The above-mentioned principle further ensures that practitioners do not take advantage of court processes to file oppressive pleadings i.e. pleadings that disclose immaterial facts and set out at great length documents which could not be material to the issues at hand, such as to as embarrass the opposite party.
16 February 2024