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Striking out pleadings and endorsements
CIVIL PROCEDURE 2 (Universiti Malaya)
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Pleadings: Striking out and Indorsements
1. Applicable law and procedural rule
 A party may apply to strike out either: a) The opponent’s pleadings, any part of it or
b) The plaintiff’s indorsement on the writ
2. Who can apply? – both parties
i. If the Defendant is applying for striking out, there is two (2) possible application
whereby:
a) Apply to strike out the Plaintiff’s indorsement on the writ.
o Plaintiff’s action will be dismissed with costs. Once indorsement is struck out,
there is no more cause of action.
b) Apply to strike out the Plaintiff’s SOC, either whole or part of it.
o If the plaintiff’s statement of claim is sufficient, then the plaintiff’s action will
proceed
o If the plaintiff’s statement of claim is insufficient, then the plaintiff’s claim
will be dismissed.
ii.
If the Plaintiff is applying for striking out, there is only one (1) application whereby it is
to apply to strike out the defendant’s defence, either whole or part of it.
 Plaintiff- to strike out the defendant’s defence either whole or part
 Strike out whole the defence - the court will give the judgement to the plaintiff.
 Strike out part of the defence - court has the duty to check whether the reminder of the
defence is enough to sustain as a defence to the plaintiff’s claim
3. Procedure of Striking out and Indorsement
 It is governed by Order 18 Rule 19
 The application must be stated promptly and should state precisely the nature of
the order being sought
o This can be seen in the case of Jamir bin Hassan v Kang Min – [1991] 3 CLJ
whereby the Court held that the application should be made promptly, usually
before the close of the pleadings and it may be refused where the matter has
already been set down for trial.
o The case of Domnic Selvam A/L S Gnanapragasam V Kerajaan Malaysia &
Ors – [2007] 2 MLJ 761 held that:
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a) The Court is empowered to make an order striking out any pleading or
indorsement at any stage of the proceedings
b) An applicant is free to rely on any or all of the grounds specified
thereunder (thus it is better to rely on all grounds although it apply
disjunctively)
 Application may be made at any stage of the proceedings ‘at any time’ on the
ground that it:
a) No reasonable cause of action or defence
b) Scandalous, frivolous or vexatious
c) Prejudice, embarrass or delay the fair trial of the action
d) An abuse of the process of the court
 The application must state the ground or limb which can be seen in the case of
Razshah Enterprise Sdn Bhd v Arab Malaysian Finance Bhd [2009] 2 MLJ 102
whereby the plaintiff’s application was flawed since it failed to specify under what
limb of Order 18 rule 19 of the Rules of High Court, the application was made.

4. Grounds for an application of striking out pleadings and indorsement
a) No reasonable cause of action or defence
 Means a cause of action with some chance of success when only the allegations in the
pleadings are considered. No evidence admissible under this limb
 This can be seen in the case of Mohd Azam Shuja & Ors v United Malayan Banking
Corporation Bhd [1995] 2 MLJ 851 - Court of Appeal whereby it was held that the
plaintiff cannot proceed with both prayers for striking off under O18r19(1)(a) and
summary judgment under O14. He must choose either one.
 The Court in the case of Taib bin Awang v Mohamad Bin Abdullah - [1983] 2 MLJ 413,
held that an action of malicious prosecution was struck off because the trial was still in
appeal stage. There is no cause of action since there is no decision given by the Court
yet.
 If the plaintiff’s claim barred by limitation, can Defendant apply to strike out under
Order 18 Rule 19(1)(a)?
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o You are not allowed to apply to strike out under Order 18 Rule 19(1)(a) on the
basis that there is no cause of action.
o It does not mean that if the limitation has expired, the plaintiff has no cause of
action
o It just merely means that the plaintiff’s cause of action is barred by limitation.
o This can be seen in the case of Ronex Properties Ltd v John Laing Construction
Ltd [1982] 3 WLR 875 whereby it was held that the limitation does not remove
the cause of action. It merely bars the remedies. The defendant still can apply
under Order 18 Rule 19(1)(b) or (d).
b) Scandalous, frivolous and vexatious
 The derogatory remarks or use of abusive language.
 Pleadings which are considered to be trifle or annoying.
 For example:
i)
res judicata; or
ii)
wrong party is sued;
iii)
defence is only a bare denial;
iv)
limitation has set in
 This can be seen in the case of Malayan Banking v Gan Kong Yam – [1972] 1 MLJ 32
whereby it was held that the plaintiff succeeded in striking out certain paragraphs of the
defence on the ground that it discloses no reasonable defence or as being frivolous or
vexatious.
 It was held in the case of Pertamina v Kartika Ratna Tahir - [1983] 1 MLJ 136 whereby it
is the duty of the court to act at the earliest opportunity to strike out offending facts and
matters in pleadings, particularly in the present proceedings where the pleadings were
ordered by the court.
 In the case of Riches v Deputy Public Prosecutor - [1973] 1 WLR 1019, Court of Appeal
held that: o it was open to the court to strike out a statement of claim as disclosing no
reasonable cause of action where the facts alleged fell outside the limitation
period, although in certain circumstances a plaintiff might be held to have a
reasonable cause of action, for example where it could be shown that there
might be an escape from the Statute of Limitations.
o However, where it was clear that the defendant was going to rely on the statute
and there was nothing before the court to suggest that the plaintiff could escape
from it, the claim would be struck out.
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c) Prejudice – Order 18, Rule 19(1)(c)
 For instances, this may happen whereby the defendant does not state clearly how
much of the plaintiff’s claim is denied or the defendant raise issues that are not
relevant to the plaintiff’s claim.
 This can be seen in the case of Lee Kuan Yew v Chin Vui Khen & Anor - [1991] 3 MLJ
494 whereby the defendants published two articles in the Sunday Star, in Malaysia,
commenting on the suicide of Mr Teh Cheang Wan, the then Minister of National
Development in Singapore and the collapse of the National Bank of Brunei. These
articles in particular of commented on the effect of these incidents on the image of
Singapore. The court then ruled that the general and obvious facts disclosed by the
def will embarrass the plaintiff and delay the fair trial of this action.
d) Abuse process of court – Order 18 Rule 19(1)(d)
 In the case of Gabriel Peter & Partners (Suing as A Firm) V Wee Chong Jin & Ors,
the Court held that the term “abuse of process of the court” under this rule had
been given a wide interpretation by courts. It included consideration of public
policy and interests of justice.
o The categories of conduct rendering a claim frivolous, vexatious or an
abuse of process are not closed and could depend on the relevant
circumstances of the case.
 Must not be used for improper purpose and must be used for genuine and bona
fide purposes.
 Cannot commence action with ulterior motive other than genuine or real
purpose.
 This can be seen in the case of Remmington v Scoles- [1897] 2 Ch 1.
 Other than that, the Court in the case of Ansa Teknik (M) Sdn Bhd v Cygal Sdn
Bhd- [1989] 2 MLJ 423 dismissed the plaintiff’s order 14 summons and later on
the plaintiff applied to wind up the defendant’s company irritated by the
decision. There was no justification given by plaintiff as to the winding up
petition and it was found that Plaintiff’s intention of to embarrass the defendant.
e) Res Judicata- You cannot relitigate a matter that already being decided by the Court.
 You cannot relitigate on an issue which has already litigated in a previous case
and you can’t relitigate on an issue which could have or should have been raised
in a previous case.
 In the case of Superintendent of Pudu Prison & Ors v Sim Kie Choon [1986] 1
MLJ 494 whereby the plea of res judicata applied in this case and there is more
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over the inherent jurisdiction of the court in cases where res judicata is not
strictly established and where estoppel per rem judicatam has not been
sufficiently pleaded or made out, but nevertheless the circumstances are such as
to render any reagitation of the questions formerly adjudicated upon a scandal
and an abuse, to enable the Court to dismiss the action or stay proceedings or
strike out the defence, as the case may require.
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