Is the Non-Compliance with the Rules of Court Fatal?

The Rules of Court 2012 (“ROC”) or Kaedah-Kaedah Mahkamah 2012, as it is known in Malay is dubbed the holy scripture for legal practitioners. It provides for everything civil litigation related from the outline structure of cause papers, guidelines on how civil actions are conducted and important timeframes and deadlines.

What happens if there is non-compliance with the ROC? Does this render your action a nullity?

Legal Authority

The relevant order in the ROC is Order 1A, Order 2, Rule 1 and Rule 3 which are as follows:

Regard shall be to justice (O. 1A)

In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules.

1. Non-compliance with Rules (O. 2 r. 1)

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

(2) These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective.

(3) The Court or Judge may, on the ground that there has been such non-compliance as referred to in paragraph (1), and on such terms as to costs or otherwise as it or he thinks just, bearing in mind the overriding objective of these Rules, exercise its or his discretion under these Rules to allow such amendments, if any, to be made and to make such order, if any, dealing with the proceedings generally as it or he thinks fit in order to cure the irregularity.

3. Preliminary objection for non-compliance of rules not allowed (O. 2 r. 3)

A Court or Judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of non-compliance of any provision of these Rules unless the Court or Judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs or both.

The Court of Appeal in REDANG PARADISE VACATION SDN BHD V. YAP CHUAN BIN & OTHER APPEALS [2017] 10 CLJ 296 (COA) held as follows on the topic of procedural non-compliance with the ROC:

[4] The RC 2012, to ensure the merits of the case or appeal is heard to attain substantive justice, have introduced a number of provisions to fortify the principles. Cases now have to be heard on merits and cannot be dismissed for non-compliance of rules unless there are exceptional reasons to do so. [5] In the 5th edition of Janab’s Key To Civil Procedure at p. 3 on non-compliance, the author had this to say: The previous Order 1A and Order 2 of the RHC 1980 have been further fortified to ensure that cases are heard on merits. The court before striking out, must consider the overriding interest of justice and not only the technical non-compliance of the rules. This overriding interest of justice concept is sufficiently wide enough to encompass the position and jurisprudence relating to non-compliance in the U.K. [6] In the light of O. 1A and O. 2 of RC 2012, it is not an option anymore for the courts to strike out a matter for non-compliance of the rules without giving an opportunity to the litigant to regularise the proceedings or to condone the irregularity by the fiat of the court. It is only in extremely rare cases where the non-compliance cannot be condoned at all, the court will be obliged to strike out the matter. Those are the cases where the respondent can demonstrate prejudice as well as can establish that the breach cannot be compensated by costs.

In JAGDIS SINGH BANTA SINGH v. OUTLET RANK (M) SDN BHD [2013] 3 CLJ 47, on the issue about omission of signature on notice and memorandum of appeal, the Court of Appeal opined as follows:

[14] We were of the considered opinion that in the circumstances of this instant case, the requirement of rr. 5(3) and 18(3) of Rules of the Court of Appeal 1994 should be liberally construed and that mere technicalities should not stand in the way of consideration of a case on the merits. Striking out a notice of appeal where a party inadvertently failed to date and sign it will produce a hash result. Rule of procedure should not be taken as a game of skill in which one oversight by counsel shall be decisive to the outcome of the case. The purpose of procedure is to facilitate a proper decision on the merits.

Conclusion

As such, a mere non-compliance with the ROC is not fatal to your application / action null unless it causes prejudice and injustice to the competing party. Having said that, best to keep by the ROC as much as possible to prevent an unnecessary bump ride.