Drafting of Court Applications

The drafting of court applications is an essential skill of all litigation lawyers. Whether it is the drafting of an originating process like a Writ of Summons or Originating Summons, or an interlocutory application via a Summons in Chambers, you will be eventually asking for the Orders you have crafted out in your court papers. So you need to be sure that the Orders have a sound basis in law and you need to protect your application from any sort of procedural objections.

A suggested workflow for such drafting can be along the lines of the following steps:

1.A possible starting point is to check with a colleague to get a sample precedent. This is often useful but it is merely the first step.

2.The more definitive source would be to look at the English Atkin’s Court Forms for the specific type of application you are drafting. The English civil procedure rules changed significantly post-1999 so if the application is very much based on civil procedure rules rather than a specific area of the law, it is best to have an older version of Atkin’s at hand.

3.The Malaysian Court Forms is the local version of Atkin’s and though not as extensive, it is also useful to compare with this guide.

4.Where the application is based on a specific statute, it is good to also check the annotated statutes to have a read of the description of that area of the law and the cases that have been decided under that section. CLJ Law provides a useful Noter Up function when you click on specific provisions of any Act.

5.Where your application is grounded on a specific provision of the Rules of the High Court 1980, then you need to have a read of the Malaysian High Court Practice book (dubbed the ‘Red Book’) which sets out a full description of the law under the various provisions. If you want to be thorough, then have a read of the English Supreme Court Rules (the old ‘White Book’) just to have a feel of what the old English authorities have to say, although these cases will not be directly binding.

6.Have a quick read of some recent appellate or High Court authorities on the specific provision, and in particular, to see what sort of objections may have been raised before. These cases also help to sometimes set out the Orders being prayed for and you can check the wording of your application with what was decided in that case and what was argued in that case.

For example, where you are drafting for various Orders allowing a director to inspect the records of a company under section 167 of the Companies Act 1965. A check through the case law will reveal that there is the decision of Paul Nicholson lwn Faber Medi-Serve Sdn Bhd & Satu Lagi [2002] 5 CLJ 383 which allowed certain Orders for not only the director to carry out an inspection of records, but also for the director to bring on to the company premises 2 photocopying machines to make copies and for 3 staff to operate the machines. So if you wanted such a wide Order, you would mirror the language of the Orders in the Paul Nicholson case and you would be able to rely on that authority at the hearing before the Court.

7.Armed with the above precedents and with the cases in mind, then you can craft your application or affidavit in support.

8.After drafting, take a step back and think of the Order that you are seeking and whether it will be easy to enforce, or whether procedural objections could be taken by the other side. More so, if you are applying for Orders ex parte (e.g. leave to enter Judgment in Default, or registration of a foreign judgment, or garnishee proceedings) and where you first serve the Order and a defendant has a right to set aside the Order. That is where the avalanche of procedural objections may be raised.

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