The Hallmark of A Vexatious Litigant


Claudia Cheah explains the case of a serial litigant



Access to justice is a common law right which has found place in the Federal Constitution. This right is enshrined in Article 8 of the Federal Constitution which provides equal entitlement to protection of the law to all persons. The recent decision of the Court of Appeal in Sim Kooi Soon v Malaysia Airline System (No 2) [2010] 9 CLJ 936 illustrates that there are restrictions to this fundamental right.


In a rare exercise of its power under Article 17 of the Schedule to the Courts of Judicature Act 1964 ("Article 17"), the Court of Appeal unanimously ordered that Sim Kooi Soon ("Applicant") be declared a ‘vexatious litigant’ by a notification to be published in the Gazette.


Article 17 provides as follows:-


“17.  Vexatious litigants


Power to restrain any person who has habitually and persistently and without reasonable cause instituted vexatious legal proceedings in any court, whether against the same or different persons, from instituting any legal proceedings in any court save by leave of a Judge. A copy of any such order shall be published in the Gazette.”


This decision has a significant impact on a litigant’s right of access to the courts.




The facts surrounding the Applicant’s claim can be gleaned from the High Court decision in Sim Kooi Soon v Malaysia Airline System [2005] 2 CLJ 797. Briefly, the Applicant was a pilot with the rank of Captain in the employ of the Respondent. In November 1995, the Applicant operated a flight from Kuala Lumpur to Langkawi without a load sheet in breach of international and domestic law. The Applicant was subsequently suspended from his flying duties.


Pursuant to a non-technical inquiry, the matter was reported by the Respondent to the Department of Civil Aviation ("DCA"). After receiving an explanation from the Applicant, the DCA suspended the Applicant’s air transport pilot licence for a period of 30 days with immediate effect. The Respondent decided to reduce the Applicant’s salary for 1 month and downgraded him to the rank of First Officer which effectively rendered him to be a co-pilot. The Applicant, contrary to directions from the Respondent, continued to wear the 4 bar epaulettes depicting him as Captain despite having been downgraded.


In April 1997, the Review Board of the Respondent unanimously decided that the Applicant was not yet ready to regain his command status. The Applicant informed the Board that he was not accepting the decision of the Board and that he would not operate as a co-pilot anymore.


The Board gave the Applicant one week to reconsider his decision. When the Board reconvened, the Applicant informed the Board that he maintained his stand. The Board recommended the Applicant be suspended and charged for insubordination. Dissatisfied with the Board’s decision, the Applicant filed a claim for constructive dismissal in the Industrial Court.


The Applicant’s claim for constructive dismissal was dismissed by the Industrial Court. The Applicant then applied for an order of certiorari to quash the Industrial Court’s Award but his application was dismissed by the High Court in May 2005. The Applicant filed an appeal to the Court of Appeal against the High Court decision, which was dismissed in December 2006.


The Applicant then began successive filing of review applications at the Court of Appeal. At the hearing of the second review application, the Applicant was advised to seek leave to appeal to the Federal Court. However, the Applicant refused to do so and continued to file repeated review applications at the Court of Appeal which were all dismissed by different panels of the Court of Appeal.


By an 11th review application, the Applicant applied to annul the 10 previous decisions of the Court of Appeal. In his affidavits, the Applicant sought reinstatement of his previous position as captain/commander of the Respondents’ aircraft. The Applicant further prayed for an order that the Respondent train him as an Airbus A380 commander to successful completion at no cost to the Applicant, that the Respondent employs him in that capacity till legal retirement.


The Applicant further sought back wages, benefits of every imaginable kind as well as perks, privileges, benefits derived from agreement between the Malaysia Airlines Pilots' Association (MAPA) and the Respondent and general and aggravated damages to the tune of RM8 billion. The Applicant also made grave insinuations against the judiciary and baseless and scandalous allegations against the solicitors representing the Respondent.




The Court began its judgment by asking the question, "What is the hallmark of a vexatious litigant?". The answer, according to the Court of Appeal, is as follows:


"The claimant who sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, is termed as a vexatious litigant."


The Court then explained that "a vexatious proceeding is one where the vexatious litigant had little or no basis in law and its effect was to subject the opposing party to inconvenience."


The Court held that it is clearly vexatious, frivolous and an abuse of the court process for the Applicant to seek annulment of 10 previous decisions of the Court. The Court found that the Applicant exhibited the classic symptoms of a variant of de Clerambault’s syndrome. It is a syndrome named after a French psychiatrist, who described such syndrome as “litigious behaviour”.


The persistent and relentless filing of frivolous and vexatious applications shows that the Applicant was attempting to re-open the appeal and re-litigate the same. Having found the Applicant a ‘serial litigator’, the Court invoked its powers under Article 17 and ordered that the Applicant be restrained from instituting any further legal proceedings in any court save by leave of the Court of Appeal and a copy of the order to be published in the Gazette.


The Court further warned the Applicant that should he persist in instituting further legal proceedings without leave of the Court of Appeal, contempt proceedings may be initiated against him by the Respondent and the Applicant could be incarcerated. The Applicant’s 11th review application was unanimously dismissed by the Court and the Applicant was ordered to pay cost of RM10,000 to the Respondent.




This decision illustrates that the court may interfere to restrain a litigant from filing repeated, unmeritorious and vexatious claims. ‘Serial litigators’ who persist in filing such claims may be subject to contempt proceedings and could even be punished with imprisonment.


This decision is neither perverse nor unreasonable and is an example of a considered decision based on clear logic necessitated by underlying policy reasons. Precious judicial time should not be wasted on vexatious proceedings which cause delays and worsen the current backlog of cases pending in court.


Nonetheless, it must be noted that the court will only exercise its power to deny a litigant from access to the courts in exceptional circumstances where the claim is clearly vexatious and without basis.



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