Withdrawing as a tactical manoeuvre: Dealing with unfair strategies
Recently, I was faced with a rather wily opponent.
A suit had been filed and the matter had progressed past the pre-trial case management stage.
Pleadings and documents had been exchanged and for all intents and purposes, the matter was ready to be put to the crucible of a trial.
On the day of the trial, the Plaintiff attempted to file an additional bundle of documents.
When this was objected to, the trial Judge rightfully dismissed the Plaintiff’s request and directed the parties to rely on the documents that had been previously filed.
The Plaintiff then changed their tack. They asserted that they intended to withdraw the suit with liberty to file afresh.
The Plaintiff argued that it was “in the interests of justice” (an Order 1A ROC 2012 argument) for the Court to allow them the opportunity to do so as it was “essential” that the additional documents be tendered as evidence.
The Judge then stood down the matter and asked parties to address her further in the afternoon. I was in a bind: how was I to convince the Court that what the Plaintiff was doing was wrong, to say the least?
Issue at hand
The live issue that I was faced with was this: the Plaintiff was attempting an underhanded move, wherein they intended to seek a roundabout, contrived mechanism to correct an error. By failing to file the necessary documents, the Plaintiff realised that their case had been weakened.
The Judge’s refusal to allow last-minute documents compounded their woes.
To allow the Plaintiff the opportunity to re-file the entire suit would not only be costly, but also time-consuming and pointless. It would allow for a second bite of the cherry. The pleadings would be substantially amended and the suit would be of an altogether different character.
My goal in the proceedings was to convince the Court that what the Plaintiff was attempting to do was not merely unethical, but also unlawful.
Procedure governing withdrawal
Withdrawing and/or discontinuing a suit or application is governed by O. 21 ROC 2012.
Although O. 21, r. 3(2) ROC 2012 specifies that an application for leave to discontinue or withdraw may only be made after moving the Court (via a Notice of Application) and obtaining leave, one will find that in practice, the Court (and one’s opponent) will be agreeable to an oral application to withdraw.
One would be able to argue that an oral application to withdraw is provided for under O. 34(1)(b) ROC 2012. The Court of Appeal in Punj Lloyd Oil & Gas v Etiqa Insurance  2 MLJ 676 suggested that a “notice of application” would be satisfied with “a simple letter to the court and the other party of an intention to withdraw [which] would suffice”.
To be safe, parties ought to file a formal application (Form 57 ROC 2012).
Withdrawing at a late stage- The law
Dominus litis, or master of the suit, is a guiding principle which the Courts utilise to determine whether an application for withdrawal is suitable to be heard.
This principle found traction in Fox v Star Newspaper Company  1 QB 636, with Chitty LJ stating as follows:
The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then to be no longer dominus litis, and it is for the judge to say whether the action shall be discontinued or not and upon what terms. I think it would be a great error to construe the rule by reference to the old meaning of the term "discontinuance" or any mere technical sense of words. The substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject-matter.
(Applied in United Asian Bank v Balakrishnan (T/A Balakrishnan Restaurant)  1 MLJ 587)
From the above, it becomes clear that once proceedings are suitably far along, the conduct of the suit no longer vests with the Plaintiff. The mantle is instead shifted to the Court to determine the progress of a matter.
This principle is aligned with O. 34 ROC 2012, which sees the Courts adopting a proactive role towards the management of cases and the progress of trial (Hong Leong Finance v Low Thiam Hoe  1 MLJ 301 at 308).
How does the Court exercise its discretion in dealing with applications for withdrawal?
Guidance on the how a Judge may exercise her discretion with regard to applications for withdrawal may be found in Majlis Peguam Malaysia v Raja Segaran  3 MLJ 155. Here, the Court of Appeal, speaking through Gopal Sri Ram JCA (as His Lordship was then known), stated as follows:
… a judge exercising his power under O 21 r 3 which permits discontinuance has a wide discretion. But it is not an unprincipled discretion. There are important guidelines that act as beacons, guiding him through those blurred areas of which we spoke a moment ago.
One of these guidelines is that if a defendant is dominus litis, the general rule is to refuse leave to discontinue . See Overseas Union Finance Ltd v Lim Joo Chong  2 MLJ 124 . Another guideline is that where the case is at a very advanced stage, care should be taken not to permit discontinuance. And what constitutes an advanced stage depends on the facts and circumstances of each case as illustrated by the case of Fox v Star Newspaper Company  1 QB 636. Another consideration; yet another guideline; which a judge ought to bear in mind is any interim or interlocutory advantage that the plaintiff may have gained between the date of issue of the writ and the point of time which he seeks to discontinue:O'Neal v Mann  FCA 1680 .
From the above, the following principles emerge:
A Judge hearing an application for withdrawal has a wide discretion;
If the Defendant is dominus litis, withdrawal should be refused;
Cases at an advanced stage should not be allowed to withdraw;
Any advantage obtained by a Plaintiff (e.g., an interlocutory injunction) ought to be considered by the Judge;
A Judge should consider the expense and extent to which a Defendant has defended a claim (at p. 162).
(Applied by the Court of Appeal in Punj Lloyd Oil & Gas v Etiqa Insurance  2 MLJ 676; see also Kho Ah Soon v Ramanda  MLJU 330; Nick Wire Products v Mau Joo  MLJU 680)
Applying the law
From the above, it is clear that a broad test exists for withdrawal applications.
I’m glad to say that after having addressed the Judge, Her Ladyship decided that the application for withdrawal was a frivolous tactic utilised by the Plaintiff to obtain an unfair advantage.
Accordingly, Her Ladyship struck-out the Plaintiff’s suit without liberty to file afresh. An award of costs of RM20,000.00 was also allowed.
It must be noted that justice must not merely be done for the Plaintiff; the Defendant will also need the scales to be fairly weighted. An unfair stratagem may always be countered with a sound understanding of the law and an emphatic application of the same.
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