Reassessing Order 18 Rule 19 of the Rules of Court 2012: Balancing the Standard of Proof with the Effective Resolution of Cases in Malaysian Civil Litigation

Abstract

There are various rules in the Rules of Court 2012. One of them is the application for striking out pleadings under Order 18, Rule 19. However, the court is more inclined to dismiss the striking-out pleadings application, even though Order 18, Rule 19, is intended to resolve cases more quickly. This tendency arises from an additional criterion: the common law principle of ‘obviously unsustainable.’ In Malaysia, several cases should have been resolved easily, but are being prolonged due to the common law principle of ‘obviously unsustainable’. Therefore, this study was conducted to investigate the feasibility of the common law principle of ‘obviously unsustainable’ within the theory of pragmatic adjudication and found three weaknesses. The weaknesses are that the court cannot effectively resolve the case, that it violates the common law principle of the balance of probabilities, which is commonly used in civil cases, and that the court is seen to favour the opposing party. Therefore, this paper argues that the common law principle of ‘obviously unsustainable’ should be abolished to promote the swift resolution of civil cases without compromising the integrity of the legal process. 

Keywords: Rules of Court 2012, Order 18 Rule 19, interlocutory application, burden of proof, common law, pleading