JCW

[Striking out – No cause of action for ‘negligence’ in respect of alleged failure to enter contract] This is an important case argued by Justin for the Defendant to strike out the Plaintiff’s claim. The Plaintiff (Syarikat Logistik Petikemas Sdn Bhd) filed a suit against the Defendant (Maruzen SH Logistics Sdn Bhd) for negligence in failing to enter into a contract with them. This is an important case because if the Plaintiff’s claim is allowed, it may open a floodgate that an alleged failure to enter into a Contract would lead to a Suit for negligence.  The Court struck out the Plaintiff’s claim. The Plaintiff’s claim against the Defendant was based on, amongst others, failing to enter into a contract with the Plaintiff to rent the relevant premises from the Plaintiff, and the alleged:- a) Negligent misrepresentation; and/or b) Breach of duty of care towards the Plaintiff under the purported business relationship between both parties. The Court inter alia held that :   (i)        Since there was negligent misrepresentation alleged on the part of the Defendant, what is vital to establish at this juncture is an underlying relationship between parties, where one party relies on the other and where one is in a dominant position which requires some fiduciary relationship. This is in line with the principle in Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465 (“Hedley Byrne”)    (ii)       Furthermore even if there was a business relationship between the parties, that by itself did not give rise to a fiduciary relationship, such as between a solicitor and client or any kind of relationship of proximity between the plaintiff and the defendant.   (iii)      It was not pleaded with precision or clarity, any ‘special relationship’ or ‘skills’ on the part of the Defendant to justify a professional duty of care to the Plaintiff. (iv)The ‘misrepresentation’ alleged by the Plaintiff is that the Defendant had intended to purchase and/or rent the relevant premises. This did not amount to a misrepresentation, but an expression of the Defendant’s intention that preceded the negotiations that followed. It is trite that it is not sufficient to plead the legal consequences without setting out in the pleadings the facts which give rise to that claim, or which impose on the defendant the particular duty or liability.