The “Freezing and Unfreezing” Principle: When Procedural Time Stops Running

 Authored by Radhia Razali

Civil procedure exists to ensure disputes are resolved fairly and efficiently. However, strict adherence to procedural timelines can sometimes lead to unjust outcomes, particularly where a party has acted diligently but is affected by technical irregularities. Malaysian courts have addressed this concern through what is now known as the “freezing and unfreezing” principle.

Under the Rules of Court 2012, a writ of summons is generally valid for six months. Difficulties arise when a plaintiff successfully serves a writ, obtains a judgment in default, and later has that judgment set aside for irregular service after the writ has technically expired. The Rules of Court do not expressly address this situation.

The freezing and unfreezing principle fills this procedural gap. When a judgment in default is entered, the action is treated as having reached a temporary conclusion and the validity period of the writ is effectively frozen. If the judgment is subsequently set aside, the writ is unfrozen and revived with whatever balance of time remained before the judgment was entered, rather than being regarded as having expired continuously.

This principle was first recognised at High Court level and has since been affirmed by the Court of Appeal in Charern Properties Sdn Bhd v Choong Nam Father & Sons Construction Sdn Bhd [2024] MLJU 2532. The Court confirmed that there is nothing in the Rules of Court preventing such an approach and that it accords with fairness and justice. The Court further emphasised that procedural rules should not be applied so rigidly as to deprive parties of the opportunity to have their disputes determined on the merits.

The freezing and unfreezing principle is not an act of judicial indulgence. It is firmly grounded in the structure of the Rules of Court 2012. Order 1A mandates that courts give effect to the overriding interest of justice. Order 3 rule 5 expressly empowers the court to extend time even after the expiry of prescribed periods. Order 92 rule 4 preserves the court’s inherent jurisdiction to prevent injustice and abuse of process. Read together, these provisions enable courts to adopt a contextual and purposive approach, particularly where procedural rules do not anticipate unusual factual circumstances.

The Court of Appeal also reiterated that limitation is a procedural defence rather than a substantive right. Allowing a writ to be renewed in these circumstances does not undermine a defendant’s legal protections but ensures that technical defects do not defeat genuine claims.

The freezing and unfreezing principle reflects a balanced and pragmatic approach to civil procedure. It protects litigants who act in good faith from being unfairly penalised by procedural technicalities, while preserving the court’s discretion to prevent delay or abuse. Ultimately, it reinforces the fundamental principle that procedural rules exist to serve justice, not to obstruct it.