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CALLING OF WITNESSES IN REPRESENTATIVE ACTIONS

By:

Harneshpal Karamjit Singh (Co-Managing Partner) [harnesh@luibhullar.com]


Image by Renáta Adrienn Uri from Pixabay


INTRODUCTION

In Chow Ye An & Ors v Euroland & Development Sdn Bhd [2022] 1 LNS 2678 (“Suit 210”) and Lam Pheng Pheng v Euroland & Development Sdn Bhd [2022] MLJU 2909 (“Suit 388”), His Lordship Judicial Commissioner Tee Geok Hock discussed the issue on limited number of Plaintiffs testifying / giving evidence at full trial when the action brought by the Plaintiffs was a representative action.


BRIEF FACTS

In both Suit 210 and Suit 388, a group of 22 purchasers and 3 purchasers respectively brought a representative action against the developer for rescission of their respective sale and purchase agreements.


The Plaintiffs in both suits had the similar cause of action and similar reliefs as well as heads of claims against the developer and in both cases, the representative action and capacity of the Plaintiffs were expressly stated in the title to the action in the Writ and the Statement of Claim.


COURT’S FINDINGS

The Court noted that Order 15 rule 12(1) of the Rules of Court 2012 permits a representative action to be brought if the Plaintiffs are a class of persons with common interest and common grievance.


It was also clear that to sustain a class action, it is not necessary for all Plaintiffs to have similar reliefs and damages, a principle the Federal Court laid down in Eh Riyid v Eh Tek [1976] 1 LNS 25.


The Court then noted that in the case of Lim Pei Pei & 54 Ors v Maju Puncak Bumi Sdn Bhd [2019] 1 LNS 52, the Plaintiffs called only 3 witnesses at full trial notwithstanding that there were 55 Plaintiffs, and after the said trial the High Court awarded judgment in favor of the 55 Plaintiffs collectively.


The Court held that it is unimaginable that the law would make it mandatory or compulsory that each and every one of the numerous Plaintiffs in a representative action (like in Maju Puncak Bumi Sdn Bhd v Chng Han Keong [2019] 8 AMR 625 where there were 138 Plaintiffs) must testify as a witness at the full trial.


The Court also held that a litigant has no right to dictate or demand that the other party must call certain number of witnesses or which persons should be called by the Plaintiffs as their witnesses to testify at full trial. Similarly, a defendant cannot compel or demand that every Plaintiff in a suit with multiple Plaintiffs must be called at the full trial to testify on every issue including issues common to the Plaintiffs.


CONCLUSION

In a nutshell, the above findings suggest that Plaintiffs in a representative action are able to have only a few Plaintiffs to take the stand and testify as witnesses during full trial.


The full ground of judgments of both Suit 210 and Suit 388 can be accessed below:-

Chow Ye Ann
.
Download • 236KB

Lam Pheng Pheng
.
Download • 28KB

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