Abuse of Process in the Court of Law - Malaysia

Abuse of Process (“AOP“) is where a person and/or a party uses the legal system in a way that does not serve the underlying goal of a legal action, but rather to achieve another purpose/collateral purpose.

It can also be seen as a malicious and deliberate misuse of regularly issued civil or criminal court process that has no legal justification. This basically looks like a plaintiff bringing an action against you (the defendant) due to an ulterior motive.

Examples of what would amount to AOP would include serving legal papers on someone which had not actually been filed in Court with the intent to intimidate, or filing a lawsuit without a genuine legal basis in order to obtain information.

And in situations where there is a valid cause of action for the lawsuit, even delays and adverse publicity caused by the party bringing the action could amount to an AOP.

Striking out a Writ for AOP

When such an action is commenced by the Plaintiff, a Defendant may apply to the Court to strike out the claim on grounds of abuse of process. Order 18, Rule 19(1) of the Rules of Court is of relevance here:

Order 18 Rule 19 (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that— (a) It discloses no reasonable cause of action or defence, as the case may be; (b) It is scandalous, frivolous or vexatious; (c) It may prejudice, embarrass or delay the fair trial of the action; or (d) It is otherwise an abuse of the process of the Court,

Take note that the court may then order the action to be stayed, dismissed or judgment to be entered accordingly, as the case may be.

Case Laws on AOP

The Court of Appeal in Indah Desa Saujana Corporation Sdn Bhd & Ors V. James Foong Cheng Yuen [2008] 1 CLJ 651 held:

[81] The court has an inherent jurisdiction to prevent an abuse of its process: Raja Zainal Abidin Raja Hj Tachik & Ors v. British-American Life & General Insurance Bhd. [1993] 3 CLJ 606 SC. [82] Illustrations of an abuse of the process of the court include: (a) An intention to embarass the defendants: Ansa Teknik (M) Sdn. Bhd v. Cygal Sdn. Bhd [1989] 1 LNS 26; or (b) Where the process of the court has not been used in a bona fide manner and has been abused: Hadi Hassan v. Suria Records Sdn. Bhd & Ors [2004] 8 CLJ 225. [83] The categories of abuse of process of the court are never closed and will certainly proliferate pursuant to the myriad of circumstances available from the factual matrix found in each particular case.

The existence of an ulterior motive or purpose in using the process.

When relying on a claim of abuse of process in striking out the opposing party’s case, the ulterior motive or purpose behind the process is required in order to succeed. Such motive can be in the form of coercion to obtain a collateral advantage, wanting to besmirch the good name of another or other reasons that are not related to the proceeding.

In Gasing Heights Sdn Bhd v Aloyah binti Abdul Rahman & Ors [1996] 3 MLJ 259, Mahadev Shankar J stated,

“If it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject-matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process.”

Mahadev Shankar J then continued,

“It would be in the best interests of future litigants who wish to take up a plea of abuse of process to avail themselves of the salutary provisions of O 18 r 19(1) of the Rules of High Court 1980.”

The act in the use of the process that is not proper in the regular prosecution of the legal proceedings.

After going through the first hurdle of having to establish some form of improper motive or purpose, a party bringing a claim for abuse of process should then illustrate how such opposing party’s act, whether it concerns a delay of proceedings, or a method of commencing legal action is not appropriate in that particular proceeding.

In Maisi bin Galing v Kerajaan Malaysia (unreported decision), the plaintiff, a member of the Royal Malaysian Police, sought by way of a writ action to declare that the defendant’s decision to dismiss him was unlawful.

Tee Ah Seng J dismissed the plaintiff’s claim on the ground that it is an abuse of process.

Consequently, the court held that in respect of this particular cause of action, the proper mode should have been by way of judicial review under Order 53 RHC as the plaintiff was challenging the decision made by the defendants pursuant to a Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 [the Public Officers Regulations Act (Conduct and Discipline) 1993].