A Note on Withdrawal of a Civil Suit

by Alliff Benjamin Suhaimi ~ 19 July 2018

A Note on Withdrawal of a Civil Suit

Contributed by:

Alliff Benjamin Suhaimi (Partner)

Tel: 603-6201 5678 / Fax: 603-6203 5678

Email: ben@thomasphilip.com.my

Website: www.thomasphilip.com.my

Recently, there have been reports about a certain public figure withdrawing or intending to withdraw civil suits that he has filed. The question is:

Can a Plaintiff withdraw a civil suit on his own whims and fancy?

Order 21 of the Rules of Court 2012 allows a party to withdraw or discontinue a civil suit. Based on Order 21 Rule 2, if the suit is at its infancy, i.e. parties are still in the midst of exchanging pleadings, then a party can discontinue its claim without the leave of Court.

For cases where the pleadings for the civil suit has closed and/or exhausted, the Plaintiff can only withdraw his suit with the leave of Court. This is provided for in Order 21 Rule 3.

In general, the Courts will grant leave subject to an award of costs to reflect the costs incurred by the other party in defending the action.

However, the Courts will not grant leave to discontinue in the following situations:

  1. The Defendant has obtained an advantage and has now become the dominant party (dominus litis) in the said civil suit;
  2. The case is already at an advanced stage, i.e. all documents are completed and parties are just waiting for trial; and
  3. The Plaintiff has gained an advantage by way of an interlocutory or interim order from the moment the suit was filed until the application to withdraw. An example of this will be in situations where the Plaintiff has obtained an injunction against the Defendant which is in force until the conclusion of the suit.

Please bear this in mind before you decide to commence any civil suits. It may be nice to tell people you have a filed a Court case against someone BUT it sure does not sound as nice when you are later seeking to withdraw the action and the Court says NO.