5 Things About Judicial Estoppel

5 Things About Judicial Estoppel

1. Is recognised in Malaysian jurisprudence

In Kam Thai Eng Linda & Anor v Tan Sri Dato’ Kam Woon Wah & Ors [2023] 1 MLJ 765 (“Kam Thai Eng Linda”), the Court of Appeal was of the view that: :

“… the principle of judicial estoppel is recognised in our shores as enunciated by this court in Nurul Izzah and Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63.”[1] (Emphasis mine)

2. Applies to a position taken by a party in a prior proceeding

In Edwards v Aetna Life and Casualty (1980) 690 F 2s 595 [“Edwards”], the United States Court of Appeals (6th Circuit) made the following observations:

“The doctrine of judicial estoppel applies to a party who has successfully and unequivocally asserted a position in a prior proceeding; he is estopped from asserting an inconsistent position in a subsequent proceeding.”[2] (Emphasis mine)

The above extract was quoted approvingly by Christopher Clarke J in OJSC Oil Co Yugraneft (in liquidation) v Abramovich and others [2008] EWHC 2613 (Comm), which was relied upon by  the Court of Appeal in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 [“Leisure Farm Corp”].[3]

Idrus Harun JCA (later FCJ) also noted in Leisure Farm Corp that:

“It is clear to this court that the object of judicial estoppel is to prevent a party who assumes a particular position in litigation to take an inconsistent position in later litigation.”[4] (Emphasis mine)

See Mee Chun JCA made a similar observation in Kam Thai Eng Linda.[5]

3. To prevent intentional inconsistency

In Peguam Negara Malaysia v Nurul Izzah Anwar & Ors [2017] MLJU 273 (CA) [“Nurul Izzah”], Idrus Harun JCA (later FCJ) held that:

“The essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery.”[6] (Emphasis mine)

Idrus Harun JCA (later FCJ) made the same remark in Leisure Farm Corp:

“Clearly, the essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery.”[7] (Emphasis mine)

4. To prevent abuse of the judicial process

In Balbeer Singh a/l Karam Singh & Ors v Sentul Raya Sdn Bhd [2022] 1 MLJ 30, the Court of Appeal remarked the following:

“It is important to bear in mind that the theory behind the doctrine of judicial estoppel is that parties should not be permitted to abuse the judicial process by taking inconsistent stands.”[8] (Emphasis mine)

5. May be applied even if detrimental reliance or privity does not exist

The United States Court of Appeals (6th Circuit) observed in Edwards that:

“Unlike equitable estoppel, judicial estoppel may be applied even if detrimental reliance or privity does not exist.”[9] (Emphasis mine)

The above extract was quoted approvingly by Christopher Clarke J in OJSC Oil Co Yugraneft (in liquidation) v Abramovich and others [2008] EWHC 2613 (Comm), which was relied upon by  the Court of Appeal in Leisure Farm Corp.[10]

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5 Things About Judicial Estoppel

Misattribution by the majority in Dahlia Dhaima?

In Majlis Agama Islam Selangor v Dahlia Dhaima bt Abdullah and another appeal [2023] 2 MLJ 897 (“Dahlia Dhaima”), Mohd Nazlan JCA (in delivering the majority judgment of the court) remarked the following in relation to the concept of ‘judicial estoppel’:

“Related to this, in another decision of a Court of Appeal in Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 it was explained that the rationale of judicial estoppel is to prevent intentional inconsistency and to protect the court from the perversion of judicial machinery.”[1]

(“Impugned Remarks”)

Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 (“Zulpadli”) was a decision of the Court of Appeal which in fact, involved the application of judicial estoppel.

However, with all due respect to the majority in Dahlia Dhaima, the Court of Appeal in Zulpadli did not explain the rationale of ‘judicial estoppel’.

In fact, the term ‘estoppel’ does not appear anywhere in the written judgment in Zulpadli and the term ‘estopped’ only appears in paragraph 22 of the written judgment in Zulpadli:

“The respondent’s own admission in the earlier suit as well as the amended statement of claim in the present suit show that the appellants were innocent victims as much as the respondent was. The respondent is estopped from taking a position different from that pleaded in its defence in the earlier suit.”[2] (Emphasis mine)

The Impugned Remarks, which the majority in Dahlia Dhaima attributed to the Court of Appeal in Zulpadli, is similar to the Court of Appeal’s pronouncements in Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] MLJU 273 (“Nurul Izzah”):

“… The essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery.”[3]

The majority in Dahlia Dhaima, referred to the Court of Appeal’s decision in Sykt Rodziah (sued as a firm) v Malayan Banking Bhd [2021] 5 MLJ 688 (“Sykt Rodziah”):

“The pleadings in the MAIWP Summons are as such a form of judicial admission which thus operate to prevent or estop the respondent from adopting a different stance. In a recent decision of this court in Sykt Rodziah (sued as a firm) v Malayan Banking Bhd [2021] 5 MLJ 688; [2021] 5 CLJ 170 it was held that a party is estopped from taking a position different from what was pleaded in its earlier suit or changing its stance in another action. The party’s admissions in pleadings in the earlier suit would amount to judicial admissions admissible against it.”[4] (Emphasis mine)

The Court of Appeal in Sykt Rodziah referred to the Court of Appeal’s decision in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 wherein the latter referred to Zulpadli and Nurul Izzah:

“The case of Zulpadli was referred to by the Court of Appeal in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 where Idrus Harun JCA (as His Lordship then was), stated at p 75 as follows:

[17] Also cited by learned counsel in the course of his oral submission on this point is this court’s decision in the case of Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 in which it was held that the respondent’s own admission in the earlier suit as well as the amended statement of claim in the present suit showed that the appellants were innocent victims as much as the respondent was. The respondent was estopped from taking a position different from that pleaded in its defence in the earlier suit. Clearly, the essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery. Judicial estoppel seeks to address the incongruity of allowing a party to assert a position in one court and the opposite in another tribunal (Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] MLJU 273). (see also) (Emphasis added.)”[5] [Emphasis mine]

Having in mind the foregoing, it is possible that the majority in Dahlia Dhaima misattributed the explanation of ‘judicial estoppel’ to Zulpadli when the same should have been attributed to Nurul Izzah.

If indeed there was misattribution, such misattribution risks muddying judicial precedent on ‘judicial estoppel’. Consequently, the remarks of the majority in Dahlia Dhaima vis-a-vis the Impugned Remarks should be treated cautiously.

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