Elements of a valid cause of action
21 May 2009 5 Comments
To sue, or not to sue. That is a question that ponders the mind of the practising lawyer day by day. But, the truth really is, that few things delight lawyers more than having the opportunity to sue. Litigating, besides being part of the lawyer’s source of bread and butter, also gives the opportunity for the lawyer to hone his literary and oratory skills, and nothing gives a better high then a successful day in court.
But before one can even sue, one needs to bear in mind the procedures involved. And none is a procedure more important then having a valid cause of action.
A cause of action has been defined in various cases from being “every fact which is material to be proved to entitle the plaintiff to succeed” in Cooke v Gill (1873) LR 8 CP 107 to “every fact which it would be necessary to support his right to the judgment of the court” in the case of Read v Brown (1888) 22 QBD 128.
Some instances of questionable causes of action might make the subject matter clearer in the following cases. In Taib bin Awang b Mohamad bin Abdullah  2 MLJ for example, the plaintiff was convicted in the Kadi’s court and he appealed. But before his appeal could be heard he commenced an action for malicious prosecution and it was so held that since the appeal has yet to be heard, and the issue had yet to be disposed of, how could malicious prosecution be established? The cause of action was therefore premature. In the case of Sio Koon Lin v SB Mehra  1 MLJ 225 the plaintiff commenced an action for recovery of arrears that where in fact not yet due at the time of the claim. Needless to say the claim was thrown out. A similar situation occurred in Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction Sdn Bhd  1 MLJ 11.
A valid cause of action also depends on other factors, such as whether the claim would be made within the proscribed time. Malaysia’s general statute of limitations is the Limitation Act 1953. Section 6(1) of the Act says that action for breach of contract or a tort are six years from the date on which they accrue.
The case of Sivapira v Lim Yoke Kong  2 MLJ 381 illustrates the principle that a limitation period may not be used to aid fraud, or the enforcement of the equitable maxim that equity will not allow a statute to be used as an instrument of fraud. In this case the plaintiff was knocked down by the defendant on a motorcycle on the 1st day of April 1977, and then the plaintiff’s solicitors sought to identify the defendant’s insurers but to no avail until the 28th day of March 1984, that is, when the six year limitation period had passed. The defendant predictably alleged that the claim was time barred. The High Court held that the defendants had wilfully concealed themselves from the knowledge of the plaintiff and thus the case came under fraud as defined in section 29 of the Act. The plaintiff’s claim therefore, was not time barred after all. It must be noted at this point that failure to add a party to the action does not come within section 29 of the Act as illustrated in the English case of RB Policies v Butler (1950) 1 KB 76 where the theif of a car stolen in 1940 was only identified that year and so the claim was time barred.
There are limitation periods proscribed by other Acts of Parliament as well. Section 7(5) of the Civil Law Act 1956 for example states that in a dependency claim where the negligent act had caused the death of a person, the period of limitation shall be three years (a bit harsh and unfair, isn’t it?) and section 2 of the Public Authorities Protection Act 1948 provides that where public authorities act in the persuance of any public duty, the period of limitation where any action accrues shall be limited to 36 months. In the case of Lee Hock Ning v Government of Malaysia  2 MLJ 12 the non-payment of monies due under a series of building contracts entered into between the appellant and the Government of Malaysia was not in persuance of any public duty and therefore the relevant provision of the Act did not apply. In the Railways Act 1991 (which has ceased to apply to Peninsular Malaysia following the passage of the Land Public Transport Act 2010) it is proscribed that any suit involving the railway authorities shall be limited to three years.
Lastly one must consider whether one has an interest in the subject matter one sues in. The judge in the case of Government of Malaysia v Lim Kit Siang  1 CLJ 219 said that every legal system has a built in mechanism to protect its judicial process from abuse by busy bodies, cranks and other mischief makers by insisting that a plaintiff should have a special interest in the proceedings he institutes. This takes the form of a nexus between himself and the other party and is known as a locus standi. This is demonstrated clearly in the case of Atip Bin Ali v Josephine Doris Nunis  1 MLJ 82 where one woman filed a suit against a former chief minister of a certain state in Malaysia for breach of promise to marry and later discontinued the suit. The members of the political party of that former chief oddly believed that she was insulting their honour, and sued for defamation. Luckily defamation was held to be personal to the ex-minister involved, and not to the members.