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‘Bifurcated trials’ refer to trials that are conducted in two stages – the first stage for the purposes of establishing liability and the second stage for the purposes of assessing damages (assuming liability was established).[1]

In Kemajuan Masteron Sdn Bhd v Chong Nge Wei & Ors [2020] MLJU 547 (“Kemajuan Masteron”), the Court of Appeal made it clear that bifurcated trials are the exception rather than the norm:

“On this issue, it is opportune for us to stress that at all times, the judge hearing the merits of the substantive dispute ought to also hear and determine the question of damages and the appropriate quantum to order.”[2]

The exception would be where the parties agreed to a bifurcated trial[3] or where the judge directed that it be the case prior to the commencement of the trial.

Mary Lim JCA (now FCJ) in Kemajuan Masteron opined the following:

“Unless there is clear agreement to bifurcate proceedings, or directions to that effect given before the commencement of trial, the judicial assessment and determination of damages ought not to be conducted separately, or worse, by a person other than the trial judge.”[4] (Emphasis ours)

After considering relevant authorities in comparative jurisdictions, the High Court in RCB Marketing Sdn Bhd v Milano Marketing Sdn Bhd [2022] 11 MLJ 635 summarised the principles in determining whether to bifurcate a trial:

“(a) it boils down to whether it is just and convenient, under the circumstances of the case at hand, to bifurcate;

(b) the ‘just and convenient’ principle necessarily requires the court to consider the elements of time, costs, fairness and prejudice;

(c) it is less expeditious (more time-consuming) and less economical (more costs incurred) to bifurcate the trial;

(d) it is also less convenient to have the trial bifurcated because of the likelihood of overlapping evidence, and the calling of the witnesses who have already testified (on liability), to testify again (on damages);

(e) bifurcating a trial prolongs the ultimate conclusion of the action;

(f) for a commercial and intellectual property case such as this case, the remedy of damages would become stale, the longer the successful party has to wait for it to be quantified; and

(g) justice delayed can lead to justice strayed.”[5] (Emphasis ours)


[1] See e.g. RCB Marketing Sdn Bhd v Milano Marketing Sdn Bhd [2022] 11 MLJ 635 (HC), at paragraph 19; Bluestone Corporation Pte Ltd v Phang Cher Choon & 2 Ors [2020] SGHC 268 (HC), at paragraph 158: “This was a non-bifurcated trial, which meant that Corporation bore the burden of proving both Phang’s liability for the alleged breaches of duties and the quantum of the loss or damage it claimed to have suffered as a result of such breaches.”

[2] Kemajuan Masteron Sdn Bhd v Chong Nge Wei & Ors [2020] MLJU 547 (CA), at paragraph 27

[3] See e.g. Sun Media Corporation Sdn Bhd v. The Nielsen Company (Malaysia) Sdn Bhd [2020] 7 CLJ 751 (CA), at paragraph 1; Professional Element Sdn Bhd v YFG Engineering Sdn Bhd & Anor [2021] MLJU 1355 (HC), at paragraph 19

[4] Kemajuan Masteron Sdn Bhd v Chong Nge Wei & Ors [2020] MLJU 547 (CA), at paragraph 27

[5] RCB Marketing Sdn Bhd v Milano Marketing Sdn Bhd [2022] 11 MLJ 635 (HC), at paragraph 37