Discontinuing a Lawsuit – Are you still ‘Dominus Litis’?

Dominus litis means ‘master of the suit’.¹ The Court in Peak Hua [2005]² referred to Trayner’s Latin Maxims which defines this term as the person to whom a suit belongs, and who has the real interest in its decision, deriving the benefit of a favourable, and suffering the consequences of an adverse judgment.

The Rules of Court 2012³ is clear on discontinuance of a lawsuit and withdrawal of a claim. It is worth noting that there is a fine distinction between a discontinuance and a withdrawal⁴. The former is used when discontinuing the main lawsuit and the latter for matters like defence or any particular claim or even an application.

Consider the following scenario:

Adele files a lawsuit (writ) against Taylor. After receiving Taylor’s defence, Adele decides she wants to discontinue her lawsuit and with an option to refile in future. 

If Adele wishes to discontinue the lawsuit within 14 days after receiving Taylor’s defence, or if after 14 days by Taylor’s consent to the discontinuance, Adele can do so without the leave of the court. This discontinuance is simple and straightforward.

However, if more than 14 days have passed, Adele has to file an application supported by an affidavit stating her reasons for discontinuing the lawsuit. Order 21 rule 3 (1) states: 

“(1) Except as provided by rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counterclaim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.” [emphasis added]

The Court in Overseas Union Finance [1971]⁵ held: 

“If the applicant here is dominis litis then leave to discontinue may be granted. If he is not, then it is unlikely that I would grant him leave to discontinue.” [emphasis added]

When applying for discontinuance, it is common for a plaintiff to request the term with liberty to file afresh. In other words, the plaintiff wants to ensure he/she has a right to re-file the lawsuit. If the defendant objects to the application and argues that the discontinuance should be granted without liberty to file afresh, the Court has three options:⁶

(a) Dismiss the application for discontinuance in toto, thereby compelling the plaintiff to proceed with the action; or

(b) Grant the discontinuance but with liberty to file afresh, thereby permitting the plaintiff to subsequently file a new suit against the defendant; or

(c) Grant the discontinuance but without liberty to file afresh, thereby shutting the plaintiff entirely from making its claim based on the same cause of action against the defendant.

In determining which option is best suited, the Court of Appeal in Newlake [2017]⁷ laid down 5 criteria: 

1. If the defendant is dominus litis, the general rule is to refuse leave to discontinue.

2. Whether the case is at an advanced stage. If so, care must be taken not to permit discontinuance. What constitutes an advanced stage depends on the facts and circumstances of the case.

3. Whether the plaintiff gained an interim interlocutory advantage between the date of issue of the writ and the point of time he seeks to discontinue.

4. There is no miscarriage of justice occasioned by its refusal to permit the discontinuance.

5. It will not prejudice the opponent to the application or take away from him any advantage to which he is fairly and reasonably entitled.

Therefore, dominus litis is a key factor in determining discontinuance of a lawsuit. If, by the time the application to discontinue is made, the defendant has effectively become the ‘master of the suit’, the Court may either dismiss the application or grant the discontinuance without liberty to refile.

In Raub Oil Mill [2019]⁸, the plaintiff filed a lawsuit alleging, among others, that an amount of RM 7 million had been remitted to its director. Subsequently, the plaintiff applied to discontinue the lawsuit with liberty to file afresh, citing non-joinder of parties. At the time of application, the trial dates had been fixed but parties have not exchanged witness statements. The Court granted the discontinuance but without liberty to file afresh. In holding that the plaintiff is no longer the dominus litis:

“[44] In the instant case, the defendant has demonstrated that the plaintiff is no longer wholly dominus litis. In the plaintiff’s summary judgment application, the defendant had shown that he had a good response to each of the plaintiff’s allegations. The defendant had exposed the plaintiff’s lack of evidential support for the allegations made in the plaintiff’s statement of claim.

[45] For the plaintiff to proceed to trial with the current state of evidence, to succeed is an uphill task. The plaintiff therefore hopes to be given the opportunity to improve on the probability of succeeding in his claims against the defendant by the discontinuance of this action, thereby giving him more time to make further investigations for his claims. In short, the plaintiff is seeking to avoid the contest with the defendant for the moment, seeking the discontinuance as an escape from the battle and to re-launch after improving its position.

[46] To permit the plaintiff to do so would be to deprive the defendant of the advantage gained. The defendant, being now dominus litis, is entitled to insist on proceeding with the action, given that the pleadings have closed and the documents necessary for the trial save for the witnesses’ statements have been filed in court.” [emphasis added]

Conversely, in Zulkarnain bin Malik [2020]⁹, the plaintiff applied to withdraw his claim with liberty to file afresh as he had commenced by way of writ instead of an originating summons. At that stage, there were interlocutory application filed which the Court has not decided. The Court granted the withdrawal with liberty to file afresh:

“[9] The defendants averred that they have a strong legal argument to oppose the plaintiff’s application. The defendants also averred that the plaintiff has no defence to the two striking out applications. On that score, the defendants asserted that they are the dominant party of the suit and have gained an upper-hand in the proceeding… 

[10] This Court is of the considered view that the averment advanced by the defendants that they have an upper-hand in the proceeding and that they are the dominant party of the suit is purely supposition or premature. In so far as the striking out applications and the application to enter summary judgment are concerned, the facts deposed therein have yet to be tested and the legal arguments have yet to be ventilated before the Court. This Court has yet to decide on any of the averments stated in those affidavits in support or defence of the applications.

[11] … In the present case, this Court does not think the defendants could consider themselves to be dominus litis by merely relying on the averments in the supporting affidavits of the striking out applications in which have yet to be considered.” 

In JPK (M) Sdn Bhd [2018]¹⁰, at the time the plaintiff applied to withdraw the claim, trial documents had been filed with trial a week away. In holding that the plaintiff is still the dominus litis, the Court granted the withdrawal with liberty to file afresh and held:

“[18] On facts of the case as maybe gathered from the pleadings, I am of the view that the defendants are not dominus litis. It is the plaintiff who has the real interest in the claim for the mould machineries and it is the plaintiff who would suffer losses if its claim for the them is not allowed.”

Simply put, the Court’s discretion to allow a discontinuance and impose accompanying terms depends on the specific facts and circumstances of each case. 

If you file a lawsuit (writ) and later decide to discontinue it, ideally, you should do so within 14 days of receiving the defence, as this does not require the Court’s permission. If you miss this deadline, you must demonstrate that you are still the ‘master of the suit’. If the defendant can show you are no longer dominus litis, the Court may, in its discretion, grant the discontinuance without the liberty to refile. This means you cannot refile the lawsuit, effectively depriving you of any remedy that might have been available.

Authors: SM Shanmugam and Hafiiz Rashid

References:

1. Ji Zhan Capital Sdn Bhd v Chua & Chew Sdn Bhd [2021] 8 MLJ 330. ↩︎
2. Peak Hua Industries Bhd v Peak Hua Holdings Bhd & Ors [2005] 6 MLJ 266. ↩︎
3. Order 21, Rules of Court 2012. ↩︎
4. In Syarikat Pembinaan Yeoh Tiong Lay Sdn Bhd v Nagarajan Sengoden [2011] 4 CLJ 433, Lee Swee Seng JC remarked: “Is there a difference between ‘withdrawal’ and ‘discontinuance’? …It would appear that ‘withdrawal’ is used for matters like appearance, defence, any particular claim or even a summons as in an application where as a ‘discontinuance’ is used with respect to an action, a claim or a counterclaim. In other words ‘discontinuance’ is used with respect to the main suit or action whether that of the plaintiff or defendant…It may be a fine distinction, but a distinction nevertheless.” ↩︎
5. Overseas Union Finance Ltd v Lim Joo Chong [1971] 2 MLJ 124 ↩︎
6. Raub Oil Mill Sdn Bhd v Dato’ Sri Andrew Kam Tai Yeow [2019] 11 MLJ 471. ↩︎
7. Newlake Development Sdn Bhd v Zenith Delight Sdn Bhd [2017] MLJU 671. ↩︎
8. Note 6. ↩︎
9. Zulkarnain bin Malik v Ong Swee Long & Anor [2020] MLJU 42. ↩︎
10. JPK(M) Sdn Bhd (dalam likuidasi mendakwa melalui Cheng & Co Corporation Recovery Sdn Bhd) v Sunny Tech (M) Sdn Bhd & Ors [2018] MLJU 94. ↩︎

The views and opinions attributable to the author(s) of this publication are not to be imputed to the firm, Shan Chambers. The contents of this publication are intended for purposes of general information and academic discussion only. It should not be construed as legal advice or legal opinion on any fact or circumstance