Dispute Resolution Update: Missed the deadline. Must the Claim Die?

In Ng Bee Hui & Ors v Nanopac Innovation Limited & Ors1, the Court of Appeal considered whether the appellants’ claims should be struck out for failing to comply with pre-trial case management directions.

Brief facts

The appellants filed their witness statements several years after the first deadline, shortly before trial and without first obtaining the High Court’s permission. No satisfactory affidavit explaining the delay was provided.

The High Court struck out their claims together with those of eight other plaintiffs who had not filed any witness statements.

Decision of the Court of Appeal

The Court of Appeal accepted that the breach was serious, and that the High Court had the power under Order 34 rule 1(3) of the Rules of Court 2012 to strike out the claims. However, it emphasised that its decision neither condoned the appellants’ conduct nor trivialised the importance of complying with pre-trial directions.

However, striking out is not an automatic consequence of non-compliance. As a last-resort sanction, it must be proportionate. Relevant considerations include: 

  • the seriousness and duration of the default; 
  • whether it was deliberate; 
  • the effect of the breach on the trial; 
  • any prejudice caused by the breach; 
  • whether there had been a prior warning or unless order2; and 
  • whether costs or strict procedural directions would suffice.

The appellants had filed their witness statements before trial. Their position was therefore materially different from that of the plaintiffs who had filed none. As the High Court’s grounds did not show that this distinction or lesser sanctions had been considered, striking out was disproportionate.

The claims were reinstated on strict terms. The appellants were confined to their existing witness statements and ordered to pay RM40,000 in appeal costs, together with the costs caused by their non-compliance.

Takeaway

While the Court admitted the late witness statement, the Court cautioned that its decision turned on the particular facts3 and imposed substantial costs orders against the appellants. Compliance with court directions, whether pre-trial, interlocutory or during trial, therefore remains paramount.

The decision here concerned pre-trial directions, but it raises a wider question: should the same proportionality-based approach guide the Court’s response to other forms of procedural non-compliance, particularly where the sanction sought would determine a party’s rights without a hearing on the merits?

The answer will necessarily depend on the applicable rule, the nature of the breach and the resulting prejudice. Nevertheless, the decision invites consideration of whether the inquiry should end once non-compliance is established or extend to whether the sanction sought goes further than necessary to address it, including whether a proportionate balance may instead be achieved through strict directions and substantial costs orders.

A lifeline for procedural default? Perhaps. A licence to disregard court directions? Definitely not.

This update is prepared by Stanley Hoh Wei Tao.

Contact us for further information regarding Dispute Resolution matters.

Footnotes:

  1. B-02(IM)(NCC)-1488-08/2025.
  2. See also Hatara (M) Sdn Bhd v Petroliam Nasional Bhd (Petronas) & Anor [2010] 4 MLJ 17 and Dr Sim Kui Hian v Chong Chieng Jen and other appeals [2021] MLJU 562.
  3. Cf. Aikbee Timbers (Sarawak) Sdn Bhd v Solid Timber Sdn Bhd [2020] MLJU 1596 and Asian Kitchen (M) Sdn Bhd v Menara Kuala Lumpur Sdn Bhd & Anor [2026] MLJU 383.

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