Lonpac Insurance Berhad v Rashytteren a/l Kathirasen & Ors

Appellant(s): Lonpac Insurance Bhd

Respondent(s):

• Rashytteren A/L Kathirasen
• Vetriivhell A/L Saravanan
• Varata Rajoo A/l Nalasamy
• Dayvanai A/p Muniandy

• YA Dato' Dr Alwi Bin Abdul Wahab
• YA Dato' Faizah Binti Jamaludin
• YA Dato' Amarjeet Singh a/l Serjit Singh

• The insurer intervened in a road accident claim in the Sessions Court, disputing that its insured vehicle was involved in the accident; after the plaintiffs closed their case, all defendants (including the insurer) elected to submit no case to answer, and the claim was dismissed.
• While the plaintiffs' appeal to the High Court was pending, the insurer applied under Order 55 rule 7 of the Rules of Court 2012 to adduce fresh evidence, comprising police reports and statutory declarations by the driver and owner of the insured vehicle, made after judgment, denying the vehicle's involvement in the accident.
• The High Court dismissed the application, primarily on the ground that the insurer had not shown the evidence could not have been obtained with reasonable diligence for use at trial; the insurer appealed that refusal to the Court of Appeal.

• Whether an express election to call no evidence at trial and stand or fall on a "no case to answer" submission precludes a party from later seeking to adduce fresh evidence on appeal under Order 55 rule 7.
• Whether the proposed fresh evidence was "not available" at trial or could not have been obtained with reasonable diligence, as required under the (disjunctive) alternatives in Order 55 rule 7(a), particularly where the defence/evidence was already known at trial but the specific admissions emerged later.
• Whether the High Court, in refusing the application, properly applied the correct legal principles (including the Federal Court's guidance in AG v Najib Razak on the relationship between Order 55 rule 7 and the Ladd v Marshall criteria) and whether its exercise of discretion was plainly wrong.

• The Court of Appeal held that it was unnecessary to decide whether the earlier election to call no evidence was an absolute bar to adducing fresh evidence on appeal, and proceeded on the assumption most favourable to the appellant that it was not.
• Applying Order 55 rule 7(a), the Court found that the appellant failed to establish either that the evidence was unavailable at trial or that it could not have been obtained with reasonable diligence; known impediments to securing the witnesses (such as a subpoena issued but not followed through, and a witness in custody) were not adequately explained, and the substance of the denials had been known to the appellant years before trial.
• As the application failed on the threshold requirement of Order 55 rule 7(a), the Court found no need to finally determine whether the "determining influence" requirement under rule 7(b) was satisfied, held that the High Court's decision was not plainly wrong, and unanimously dismissed the appeal with costs of RM30,000 to the first and second respondents.