6 Tips to Trial Procedures in Malaysian Courts

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Introduction

1     It is crucial for a party, namely the Plaintiff to have a cause of action before he commences an action against the Defendant. A cause of action exists if there is a Plaintiff who can sue, a Defendant who can be sued and there are material facts which entitles the Plaintiff to succeed.

      1.1   However, one must take note of the fact that a claim can possibly be dismissed before the case is set for trial, particularly on the preliminary issues. For examples, the limitation period, locus standi, wrong mode of commencing an action, absence of parties and non-compliance of procedural rules.

Commencement of action and Pleadings (in brief)

2     Endorsement of writ of summon-O6 r 2

      2.1   Before a writ is issued, it shall be endorsed with a statement of claim, which shall comply with the requirements of pleadings under Order 18 of Rules of Court 2012 (ROC). The Plaintiff shall serve a statement of claim on the defendant before the expiration of fourteen days after the Defendant enters an appearance.

3     Appearance

      3.1   A defendant who wishes to defend himself must enter a memorandum of appearance (O12 r 12) to prevent the judgment in default of appearance to be made against him under O13.

4     Summary Judgment

      4.1   Summary judgment is available to the Plaintiff if the Defendant has no  defense or no other reason for there  to be a trial. However, the Defendant may apply to dismiss Plaintiff’s action if there is no statement of claim served on him or the Defendant has not entered appearance.

5     Close of pleadings

      5.1   Pleadings are deemed to be closed 14 days after service of the Reply or, if there is no Reply but only a Defense to Counterclaim, after service of the Defense to Counterclaim. If neither Reply nor a Defense to Counterclaim is served, pleadings are deemed to be closed 14 days after the Defense is served.

Pre-Trial Case Management

6     Upon the close of pleadings, the Court will call the parties up for a pre-trial case management which all parties shall compile all their documents and identify the witnesses. The Court will then give direction as to what documents are needed to be filed in court together with the timelines for all fillings. The timeline shall be complied according to a strict timeline unless an extension of time is allowed by court, otherwise it will result in a dismissal of claim.

7     O34 Rules of Court 2012 (ROC)

      7.1   Court’s orders and directions for just, expeditious and economical disposal of proceedings

      7.2   The court may direct the parties to attend a pre-trial case management hearing relating to matters such as settlement, mediation, preparation of bundle of documents, witnesses, mode of giving evidence-in-chief and length and date of trial, at any time before action is tried. The court may also dismiss the action, strike out the defense or counterclaim, or enter judgment, or make such other order as it thinks fit.

Matters in pre-trial case management:

Classification of documents:

8     A list of documents that may be used at trial shall be delivered by both Plaintiff and Defendant and exchange between parties on their bundles of documents which the agreed and non-agreed bundles of documents should also be prepared.

 9    Discovery-O24

       9.1 Generally, a party can obtain disclosure of relevant information and documents that are or have been in possession, custody or power of the other party. However, it is subject to the law on privilege. The rationale of discovery is because in civil procedure the parties do not take each other by surprise.

10    Interrogatories-O26

       10.1       The objective of interrogatories is to allow a party to disclose facts on oath from his opponent which this makes the burden of proof easier. The application for leave of court to serve interrogatories is normally make before the close of pleadings and after discovery. The court has discretion to consider the issue of relevancy and necessity.

11    Bundle of pleadings

      11.1 Writ

      11.2 Statement of Claim

      11.3 Defence

      11.4 Replies

      11.5 Affidavit (if any)

      11.6 Relevant notice or order which the parties may relied or had been disposed

12    Bundle of documents                           

      12.1 Exhibits are in the form of bundles which separated into 3 parts (A,B,C), it is part of the affidavit which annexed to the pleadings

13    Part A [O. 34, r2 (2) (c) and (d)]:

      13.1 Documents that the parties agreed on the content and nothing is being disputed.

      13.2 Plaintiff’s solicitor prepares the Common Agreed Bundle of Documents.

14    Part B [O. 34, r2(2)(e)(i)]:

      14.1 Documents that the parties are disputing the content instead of the authenticity

15    Part C [O. 34, r2(2)(e)(ii)]

      15.1 Documents that the parties are disputing both the authenticity and contents

      15.2 Documents that placed in Part C is inadmissible as evidence

      15.3 Any document in the bundle of document that is being disputed will be marked as ‘ID’, which means parties who wish to adduce it as evidence must call the maker of the document as witness to tender the document in the court, otherwise it must be satisfied that the evidence falls outside the scope of hearsay to prove its admissibility.

16    Statement of Agreed facts – O. 34 r2(2)(j)

      16.1 Statement of agreed facts refer to facts which are not disputed by all parties and can be found from the statement of claim and defence. The statement is to be filled in court after the parties have exchanged the drafts between them to be perused, corrected and ultimately finalized. Once admitted, then it is not necessary for the parties to call witnesses to prove the facts stated in the statement of agreed facts

17    Statement of Issues to be Tried – O34 r 2(2)(k)

      17.1 Statement of Issues to be tried contains the main legal issues in dispute between parties. It helps the court by leading the trial proceeding to the right direction. The court may finalizes these issues between the parties and fix for them the date upon which the document is to be filed.

18    Statement of Witnesses – O. 34 r2(2)(l)-(s)

      18.1 The court may utilize the case management session to finalize the list of witnesses between the parties. The court in doing so will evaluate the relevancy of each and every witness that parties intend to call and supervise them in relation to whether the witness should be called.

      18.2 The period within which the parties have to exchange and file their list of witnesses, as well as the statement of witnesses who may give evidence at trial. The court may also determine whether an order should be made limiting the number of expert witnesses.

19    Mediation – O34 r 2(a)

      19.1 In a High Court matter, when both parties agree to go for mediation, the judge will appoint a session court judge to act as a mediator. The mediator will fix appointments for solicitors and if both parties fail to reach a settlement then the case will be referred to the judge.

      19.2 The parties, counsel and mediator will attend to the mediation. Both parties will propose anything relevant, but they are not bound by rules; they will refer to related documents but not the pleadings. Besides, it is possible that D may propose any order.

Course of Trial

20    After the case management has ended, if the dispute is not resolved out of court, the civil lawsuit will move to trial.

21    Right to begin [O34 r 4]:

      21.1 The court has discretion to direct which party to begin. Normally it will be the Plaintiff who shall begin by opening his case. However, if the burden of proof is on the Defendant then the D is entitled to begin.

22    Procedure at trial:

      22.1 The Plaintiff may start first which the witness can be called, or the Plaintiff may testify himself. Documents must be produced for both Plaintiff and his witness to identify. As the Affidavits of Evidence-in-chief for all witnesses would generally have been exchanged before the trial, examination-in-chief is usually a very short process. This is followed by the Defendant’s cross-examination (CE)of the plaintiff’s witnesses. If the plaintiff’s witnesses are cross-examined by the defendant, the plaintiff is entitled to re-examine his witnesses. Additional issues that were not raised during CE cannot be brought up.

      22.2 It should be noted that traditionally the witness will give an oral statement, now it is replaced by a written statement, herein refer to the witness statement (as mentioned above) and the other party reserves the right to ask the Examination-in-chief’s (EIC) counsel. The reason behind this is to save the time of the court. During the EIC, the questions to be asked are only limited to those that the document needs to be marked.

      22.3 After Plaintiff has called all the witnesses and his case is closed. The Defendant will thereafter start his case by repeating the same process.

      22.4 The Plaintiff will make a speech in reply.  After all the witnesses have given their evidence, the Court may hear oral closing submissions or seek written closing submissions, followed by the decision of the judge at the conclusion of trial which the judge may either allow or dismiss the Plaintiff’s claim. The losing party will have to pay the cost of the successful party.

Order of speeches – O35 r 4

23    Plaintiff begins- O35 r 4(2)

24    Plaintiff shall begin by opening his case. If the Defendant elects not to adduce evidence, then the Defendant will make the last speech. The Plaintiff has the right to reply only on the fresh point of law raised by the Defendant, if there is any.

25    If the Defendant elects to adduce evidence, the Plaintiff will be the party who makes the last speech. The Defendant then has the right to reply only on the fresh point of law raised by the Plaintiff, if there is any.

26    Defendant begins- O35 r 4(6)

      26.1 If Plaintiff who is in defence does not adduce evidence, then the Plaintiff may make the last speech. The Defendant then has the right to reply only on the fresh point of law raised by the Plaintiff, if there is any.

      26.2 If the Plaintiff elects to adduce evidence, then the Defendant will make the last speech. The Plaintiff then has the right to reply only on the fresh point of law raised by the Defendant, if there is any.

Evidence – O38

27    The general rule is that a witness to be examined orally.

      27.1 Evidence by statement of witness– O38 r 2

      27.2 In writ action, witness shall give evidence-in-chief  which a witness can only give evidence of facts within his own knowledge and recollection, unless the court otherwise order or the parties agree and is subject to CE, and in default of attendance, his statement is inadmissible without the leave of court.

      27.3 The Court may order any witness to give evidence instead of the statement of the witness at the trial.

28    Evidence of particular facts – O38 r 3

      28.1 The court may order that evidence of particular fact shall be given at trial, such as by statement on oath of information of belief; by the production of documents or entries in books; by copies of documents; by the specific newspaper which contains statement of the fact in which there is common knowledge.

29    Subpoena of witness – O38 r 14-22

      29.1 Subpoenas are documents issued to ensure the attendance of witnesses at trial, failing which, the affidavits they have submitted as their evidence-in-chief will be rejected by the Court. Three types of subpoenas may be issued: 1) requires the witness to attend Court to give oral evidence; 2) requires the person named to produce documents without the obligation to attend Court personally; 3) requires the witness to both give evidence in Court and produce documents. Witness, if bound to attend will be given a reasonable sum of expenses.

30    Evidence by deposition – O39

      30.1 The court may act under the interest of justice, make order in Form 69 for the examination on oath before judge at any place of a person which the evidence may be used at the trial.

31    Examination of a person who is out of jurisdiction – O39 r2

      31.1 If a person is out of jurisdiction then an application may be made for order to issue a letter of request to the judicial authorities of the country which the person is to take evidence; and if the government of that country allows him in that country to be examined before a person appointed by the court for an order appointing a special examiner to take the evidence of the witness in that country.

      31.2 An application can also be made for the appointment as special consul in that country in which the evidence is to be taken or his deputy, if there subsists with that country a Civil Procedure Convention providing for the taking of the evidence of any person in that country for the assistance of proceedings in the High Court; or with consent of the Minister.

32    Expert Witness – O40A

      32.1 It is the duty of an expert to assist the Court on the matters within his expertise. This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

      32.2 The court may also limit the number of expert witnesses who may be called at the trial to such numbers as it may specify.

      32.3 An expert report shall give details of the expert’s qualification, to list out the issues which has been asked, the basis of the reasoning given in making the report, a summary of his opinion, a conclusion, a statement of understanding of the expert witness in giving the said report.

      32.4 The court may also direct a discussion between the expert that aimed to show the issues on which they agree or disagree, further provide the reasoning.

33    Documentary Evidence (see the bundle of documents as mentioned above)

      33.1 Agreed bundle: It is admissible, but the truth may be challenged

      33.2 Non-agreed bundle: The admissibility and contents may be challenged.

34    Submission of no case to answer

      34.1 It is a principle of law that the Defendant may submit a no case to answer at the end of the Plaintiff’s case if the Defendant is of the view that:

      34.2 The Plaintiff had failed to establish a case in law; or

      34.3 The evidence that was led by the Plaintiff is so unsatisfactory or unreliable.

      34.4 Once a defendant in civil proceedings makes a submission of no case to answer and elects not to call evidence, then all the evidence led by the plaintiff must be assumed to be correct.

      34.5 In a decided case of Govindasamy s/o Muthulingam v Ooi Kee Chye [2012], Chew Soo Hoo JC held that if the Plaintiff fails to prove his case then there is no need for the Defendant to rebut and thereafter can make a submission of no case to answer.

35    Storey v Storey [1961], p68:

      35.1 “There are, however, two sets of circumstances under which a Defendant may submit that he has no case to answer. In the one case, there may be submission that, accepting the Plaintiff’s evidence at its face value, no case has been established in law, and in the other that the evidence led for the Plaintiff is so unsatisfactory and unreliable that the court should find that the burden of proof has not been discharged.”

36    Tan Kim Khuan v Tan Kee Kiat (M) Sdn Bhd [1998] 1 CLJ SUPP 147, p706:

      36.1 “If the party on whom the burden lies fails to discharge it, the other party need not call any evidence. In that event, it will not avail him to turn round and say that the respondent has not established his.”

37    It is observed in the case of Raja Chandranath Roy v Ramjai Mazumdar 6 BLR 303 as which the respondent can say: “It is wholly immaterial whether I prove my case or no. You have not proved yours”

38    Ng Ben Thong & Ors v. Krishnan A/L Arumugam [1997] 1 LNS 85; [1998] 5 MLJ 579

      38.1 “The parties cannot depend on their pleadings; they must prove the facts in their pleadings with evidence. Thus, pleadings and evidence go hand in hand. If the Plaintiff cannot prove his case, then the Defendant may make a submission of no case to answer. However, if Plaintiff has established his case, the Defendant cannot just make a submission of no case to answer and rely on his allegations in his statement of defence without adducing any evidence.”

            38.1.1      How Practical is the “submission of no case to answer” by the Defendant?

      38.2 Where the Defendant would have cross-examined the witnesses of the Plaintiff. The question will then be whether the Plaintiff has established a prima facie case at this point. At this juncture, the Plaintiff would have brought in all the evidence required to prove its pleaded case. The Plaintiff would then close its case.

      38.3 Prima Facie case: A case in which the evidence produced is sufficient to enable a decision or verdict to be made unless the evidence is rebutted.

      38.4 However, the Defendant would not be aware of whether there is in fact a prima facie case established by the Plaintiff after the close of Plaintiff’s case following such cross-examination by the defence counsel. The judge will not let it be known  to the parties as to whether there is or not a case to answer. The counsel for Defendant would have to access the evidence adduced by the Plaintiff and the strength of his cross-examination and documentary evidence and determine whether the judge would make a finding that the Plaintiff has not established a prima facie case.

      38.5 Therefore, counsel for the Defendant would have to make a serious decision at this point. If he is confident that the Plaintiff has not established a prima facie case, then he would end the proceedings without further adducing evidence. He would state to the judge that there is no case to answer. Once he has made such an election, it is irrevocable.

39    If  Defendant elects not to adduce evidence

      39.1 If the court is of the view that the Plaintiff had proven its case, the Defendant is not allowed to adduce any evidence. So, the Defendant who intends to make submission of no case to answer must be prepared to stand by that submission and not call any defence witness to defend against the Plaintiff’s claim.

40    Application to re-open case

      40.1 The court has discretion to re-open the case to recall a witness or to admit fresh evidence but it should be used sparingly.

Judgment and orders – O42

41    A judgment is a decision to an action which is final; an order is a decision which is interlocutory in nature. Judgment or order of the court will take effect from the date of its pronouncement unless the court otherwise directs, and the taking effect on another date should only be exercised on good grounds by the court. (O42 r 7).

42    If the judgment or order has not yet been perfected then the court has absolute jurisdiction to alter, vary, modify or set aside its own judgment or order and it is to be made judiciously. The general rule is that the court could not alter, vary or set aside a perfected judgment or order due to reason of functus officio unless it comes under slip rule (O20).

43    However, inherent power under O92 r 4 allows a perfected order to be set aside if it is made illegally; where the court lacks jurisdiction; and in the interest of justice where there is a serious defect.

Conclusion

44    Any party may appeal against the decision of the court and may also apply for a stay of execution of judgment pending appeal in order to prevent a miscarriage of justice. Not every lawsuit ever goes through the full range of procedures and all the way to trial, some civil cases can be settled out-of-court or by mutual agreement between the parties.

45    The purpose of a trial is to resolve legal disputes that parties could not settle by themselves or through a less formal method. It is also no doubt a way to secure fair and impartial administration of justice between the parties to the action as all the evidence will be examined in trial and parties will be given a chance to be heard.

Jaryn Lam Hui Jun

December 2020

Jaryne Lam Hui Jun

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