Decision allowing an amendment to pleadings – is it appealable?

The issue of whether there can be any appeal against the Court’s decision in respect of an application to amend pleadings has been the subject of much litigation in the Court of Appeal and Federal Court.

On 31.1.2020, the Federal Court in Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] MLRAU 28 held, by a majority of 3 to 1 (the fifth Judge having retired by the time the decision was delivered) that a decision on an application to amend pleadings is not appealable, i.e., there can be no appeal against that decision to the Court of Appeal.

In that case, an application to amend the statement of claim was filed by the plaintiff in the High Court in the midst of trial, after 6 witnesses had already given evidence. The amendment application was allowed by the High Court but the High Court order was subsequently reversed by the Court of Appeal. Dissatisfied with the Court of Appeal’s decision, the plaintiff appealed to the Federal Court.

Before the Federal Court, a preliminary issue was raised by the plaintiff that the Court of Appeal did not have the jurisdiction in the first place to have heard the appeal against the High Court’s amendment decision.

The Federal Court, by a majority, held that the definition of ‘decision’ in Section 3 of the Courts of Judicature Act 1964 (“the CJA”) read with section 67(1) of the CJA meant that the Court of Appeal could hear appeals against any judgment or order of the High Court but not an appeal against any decision of the High Court made in the course of a trial or hearing or matter that did not finally dispose of the rights of the parties. It was held that since the amendment order obtained by the plaintiff did not finally dispose of the rights of the parties, the amendment appeal before the Court of Appeal was therefore not competent and the Court of Appeal had no jurisdiction to hear such an appeal. The Court of Appeal’s order was set aside.

Are all amendment decisions non-appealable?

The Federal Court decision does not preclude all challenges/appeals on amendment applications. The Federal Court had also stated the following:

The earlier Federal Court decision of Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2016] 1 MLJ 301, which had set out the principles as to when an amendment application may be allowed if made at a late stage, was distinguished. It was held that the earlier decision concerned an amendment application made before on the eve of the commencement of the trial, whereas in the instant case, the decision concerned an amendment application which was filed during the trial.

The exclusion of appeals against non-final decisions is intended to prevent delays to trials occasioned by such appeals.

A party aggrieved by a decision made concerning an amendment application may still challenge the decision after the conclusion of the trial, in the appeal proper against the trial decision.

Significance of the decision

The Federal Court’s decision establishes that if an amendment to a statement of claim is allowed, there is no final disposal of the rights of the parties as the defendant may still defend itself in the trial in respect of the amended claim. However, such decision would likely open a new front for challenges to appeals concerning other types of interlocutory applications. There would likely be disputes over whether a decision made had finally disposed of the rights of the parties, and issues of how the court ought to construe what such rights would be.

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