The Litigation Process in Malaysia
INTRODUCTION
Previously, we had a broad look at the Malaysian legal system. An important component of the Malaysian legal system is the civil litigation process. The litigation process in Malaysia, like many other common law jurisdictions, serves as the formal mechanism for resolving legal disputes through the judicial system. This process is characterised by various stages, each contributing to the fair and just resolution of conflicts. This article seeks to outline the key components and procedures of the Malaysian litigation process from commencing proceedings to obtaining judgment.
THE LITIGATION PROCESS
1. Factors to consider before filing a claim in court
Before filing a claim in court, the following must be considered:
· Cause of action. Is there a proper basis for your claim?
· Limitation period. Are you within time to file your claim?
· Evidence. How will you back up your claim? Do you have the necessary evidence in the form of documents or witnesses?
2. Letter of demand
After considering the above matters, it is generally recommended to first issue a letter of demand, even though this is strictly not a prerequisite to filing a claim in court. This is because the letter of demand often acts as a time and cost-effective tool to resolve disputes. It may prompt a favourable response from the recipient of the demand letter and prevent the dispute from progressing further, especially if the demands are complied with, or if the parties settle the matter without having to go to court.
3. Filing your claim in court / commencing legal proceedings
If the dispute is not resolved at that stage, then commencing legal proceedings will be necessary. This typically begins with the filing of a writ of summons or originating summons by the claimant/plaintiff. The writ of summons or originating summons will outline the nature of the claim, the reliefs sought,as well as the legal basis for the action.
Proceedings which are commenced by way of writ of summons are usually for cases where a substantial dispute of fact is likely to arise.[1]Whereas, an originating summons is usually to the appropriate method for applications to be made to the court or a judge thereof under any written law.[2]
Once a writ of summons is served on the defendant, the defendant has 14 days to file a memorandum of appearance, failing which a default judgment may be entered against him. In legal proceedings commenced by originating summons, the defendant is not required to enter a memorandum of appearance.
4. Pleadings
Next is the pleadings stage. Pleadings are written documents which must be filed in court by the parties, which sets out the respective cases of the parties. They contain the material facts which make up the basis of the claim or the defence to the claim, together with the reliefs sought by the parties. Usually, the pleadings will involve the following 3 documents:
· Statement of claim. A statement of claim can be served by the plaintiff on the defendant at any time after service ofthe writ but before the expiration of 14 days after that defendant enters an appearance.[3]However, in practice, the statement of claim is served together with the writ of summons, unless there is a need or urgency to file the writ immediately;
· Statement of defence. A statement of defence must be served by the defendant on the plaintiff before the expiration of 14 days after the time limited for appearing or after the statement of claimis served on him (whichever is later). A statement of defence may also include a counterclaim within the same document; and
· Reply to the defence. A reply must be served by the plaintiff before the expiration of 14 days after the service of the defence. A reply may also include a defence to any counterclaim within the same document.
As for proceedings commenced by an originating summons, the plaintiff will also file and serve his supporting affidavit, which annexes the relevant documents in support of his claim. However, the defendant must file and serve an affidavit in reply to the affidavit in support within 21 days if he wishes to dispute theclaim. Any further affidavits in reply must be filed within 14 days from the date of service of each affidavit.
5. Discovery of Documents
The court will give pre-trial directions to the parties through pre-trial case management.These include the direction for the parties to exchange the relevant documents for the purpose of the proceedings. The parties are obligated to disclose all relevant documents, even those that undermine their case. This process, known as discovery, ensures transparency and allows each party access to the necessary information for a fair trial.
Once the documents are exchanged, the opposing party must classify the documents. Documents can be classified into 3 parts, mainly:
· Part A whereby parties agree to the authenticity and truth of the contents of the documents;
· Part B whereby parties agree to the authenticity of the documents, but not the truth of its contents; and
· Part C whereby parties agree to neither the authenticity nor the truth of the contents of the documents.
6. Trial stage
The trial is the central stage of litigation where parties present their cases through oral and documentary evidence. The trial of a writ will involve the oral evidence of witnesses. Parties may call factual witnesses and technical experts to support their cases. The evidence of the plaintiff’s witnesses are presented first by way of prepared witness statements. The witness is then tested and challenged in cross-examination by the defendant’s counsel. The plaintiff’s counsel will then have the opportunity to clarify the witness’ evidence in re-examination.The process is repeated for each of the plaintiff’s witnesses as well as the defendant’s witnesses.
7. Written submissions after trial and judgment after trial
After the conclusion of the trial, the court will hear arguments by the parties’ counselbefore proceeding to make its decision. These usually involve the filling of written submissions after trial, after which the court will fix a date for parties to present their submissions orally. However, in subordinate courts, oral submissions are usually dispensed with and the court will make its decision based on the written submissions filed by the parties.
The importance of the written and oral submissions cannot be understated. They serve to assist the court in arriving at the correct decision by highlighting the relevant and material evidence, as well as the correct law to be applied in the case.
Conclusion
The litigation process in Malaysia is a structured and comprehensive system designed to uphold the principles of justice, fairness, and due process. While it may be complex, the process aims to provide an effective means for parties to resolve their disputes and obtain a just and equitable outcome through the intervention of the judiciary. As Malaysia continues to evolve, so too does its litigation process, adapting to meet the changing needs of a dynamic legal landscape.
This article is written by RajaNadhil Aqran (Partner) and only contains general information. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such.
For further information, kindly contact info@aqranvijandran.com.
[1] O.5 r. 2 of the Rules of Court 2012.
[2] O.5 r. 3 of the Rules of Court 2012.
[3] O. 18 r. 1 of the Rules of Court 2012.
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