Americans cannot represent next of kin in MH370 case

  • Nation
  • Saturday, 22 Oct 2016

KUALA LUMPUR: A High Court has dismissed an application by two foreign lawyers to get leave to appear for the biggest legal proceeding initiated by 76 next of kin of missing Flight MH370 passengers against Malaysian Airline System Bhd (MAS) and four others for da­mages.

The two attorneys from the United States – Steven C. Marks and Roy Kalman Altman – have applied to jointly appear in the civil suit.

High Court (Appellate and Special Powers) judge Hanipah Farikullah ruled that both lawyers have not met the criteria of “qualified persons” as defined under Section 3 of the Legal Profession Act.

She said they also did not fulfil the requirement for ad hoc admission in special case under Section 18(1)(a) of the Act.

“It is the duty of the judge to read the sections as passed by Parliament.

“We are not policy makers,” she said in her ruling yesterday.

Lawyer Farez Jinnah, who represented the Bar Council and KL Bar, said it was the first case which determined the meaning of “qualified persons” for the purpose of interpretation of ad hoc admission of foreign lawyers in special case.

Justice Hanipah ruled that the area of law in the claim would mainly involve negligence, breach of contract, conspiracy, fraud and misfeasance in public office, which could be handled by Malaysian lawyers.

Besides, she said the issue of Montreal Convention would only be a part which has to be dealt with by the trial judge.

(The Convention touches on certain rules for international carriage by air which includes the liability to passengers.)

Justice Hanipah said the plaintiffs would not be prejudiced by her ru­ling and that they could call fo­­reign experts to give evidence on the Convention.

“I think Malaysian lawyers are familiar. Lawyer Tommy (Thomas) will be experienced enough to handle this case,” she said in dismissing the application.

She did not make any order as to costs.

The judge delivered the judgment after hearing lengthy submissions by the Bar Council, MAS, Malaysia Airlines Bhd (MAB), Department of Civil Aviation (DCA) director-general, Royal Malaysian Air Force and the Government, who had objected to the application.

The plaintiffs’ lead counsel Thomas, among others, have pointed out that both lawyers have special qualifications and experience in aviation matters, which could assist the trial judge, especially on the interpretation of the Convention.

Senior Federal Counsel Alice Loke Yee Ching from the Attorney-General’s Chambers argued that both applicants were qualified lawyers in the US but not within the meaning of “qualified persons” under Section 3 of the Act.

MAB lawyer Sanjev Kumar, SFC Loke and Saranjit Singh, representing MAS, also argued that Malaysian lawyers were adept to handle the case.

The plaintiffs in the lawsuit comprised 66 Chinese nationals, eight Indians and two Americans who are family members of 32 passengers.

This is the largest lawsuit in Malaysia in terms of number of passengers involved.

In the statement of claim dated March 3, they are claiming for negligence, breach of contract, breach of statutory duty and breach of the Montreal Convention against MAS.

The families have said that MAS gave no proper account of events that had happened during the flight, which the next of kin were later informed in text messages, had gone down in the southern Indian Ocean.

Flight MH370 departed from Kuala Lumpur International Air­port to Beijing on March 8, 2014.

On Jan 29 last year, the DCA director-general had declared MH370 to be an accident and that all 239 passengers and crew on board were presumed to have lost their lives.

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