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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The Implied Undertaking Rule

An interesting read, Allens Arthur Robinson’s update on the implied undertaking rule which was affirmed by the recent Australian High Court decision of Hearne v Street[2008] HCA 36.The implied undertaking rule is that a party receiving documents in litigation holds them subject to an implied undertaking to use them only in the proceedings in which they were produced. The reasoning behind such a rule was explained by Denning in Riddick v Thames Board Mills Ltd [1977] QB 881:

“A party who seeks discovery of documents gets it on condition that he will make use of them only for the purpose of that action, and no other purpose.

Compulsion [to disclose on discovery] is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party – or anyone else – to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.”

Hearne v Street summarised that the implied undertaking rule applied to all documents and information that one party to litigation is compelled, whether by reason of a rule of court, a specific order of the court or otherwise, to disclose, including:

(i) documents inspected after discovery;
(ii) answers to interrogatories;
(iii) documents produced on subpoena;
(iv) documents produced for the purposes of taxation of costs;
(v) documents produced under a direction from an arbitrator;
(vi) documents seized under an Anton Pillar order;
(vii) witness statements served under a judicial direction;
(viii) affidavits; and
(ix) expert reports.

The implied undertaking is usually released once the relevant material is tendered or read in open court. A breach of this implied undertaking (which is given to the Court) would mean that a party is in contempt of Court.

Application of Implied Undertaking Rule

Let me just highlight some issues and the application of this rule in the context of a shareholder dispute.

A shareholder who is not a director, or a director-shareholder who has been denied access to company documents, will not have access to crucial documents to help evidence any of his complaints. A shareholder may wish to bring an oppression petition under section 181 of the Companies Act 1965 to seek for a share buy-out or other reliefs. One of the drawbacks of a petition is that there is no automatic right to discovery. In fact, in See Hua Realty Bhd v See Hua News Holding Sdn Bhd [2007] 7 CLJ 152, discovery of documents in the oppression petition was disallowed.

Would the new statutory derivative action provisions assist such a shareholder? The new provisions allow for wide ranging powers for inspection and to effectively order discovery of documents at the leave stage. At a talk I attended, it was suggested by a senior corporate litigator, that he did not see the inconsistency in bringing a section 181A statutory derivative action for the specific purpose of discovery, and to have an oppression petition run in parallel. This was to get over the hurdle and difficulty of obtaining discovery in the oppression petition.

However, I would think the implied undertaking rule should strictly apply in preventing the use of any documents obtained under the section 181A proceedings for use in the oppression petition proceedings.

Similarly, if the shareholder agreement contains an arbitration clause, any order for discovery by the arbitrator (or even interim order for discovery to be granted by the Courts under section 11 of the Arbitration Act 2005) should mean that the documents or evidence can only be used within the arbitration proceedings and not be used for other litigation proceedings.

That means a shareholder may have to continue to grope in the dark and not be able to have access to documents to evidence at least some of the complaints the shareholder may have.

The National Language in the Courts

A very common question asked by friends who aren’t in the legal profession, or friends outside of Malaysia, is whether the Malay language has to be used in court. For the purposes of this blog entry, allow me to side-step the debate surrounding the correct usage of the term Bahasa Malaysia or Bahasa Melayu, and just refer to all generically as the Malay language.The short answer to the posed question is that strictly under the law, all proceedings and court papers have to be in the national language i.e. the Malay language.

This is covered specifically under statute as well as the rules governing court procedure. But it was not always the case where it was compulsory to use Malay in the court.

In Malaysia pre-independence, the English language was used in all the courts. Even when the National Language Act was introduced in 1963 making the Malay language the official language of Malaysia, the courts were exempted from making the transition from English to Malay.

However, on 30 March 1990, the National Language (Amendment) Act 1990 came into force which removed the exemption enjoyed by the courts. The new section 8 now reads:

All proceedings (other than the giving of evidence by a witness) in the Federal Court, the Court of Appeal, the High Court or any Subordinate Court shall be in the national language

Provided that the Court may either of its own motion or on the application of any party to any proceedings and after considering the interests of justice in those proceedings, order that the proceedings (other than the giving of evidence by a witness) shall be partly in the national language and partly in the English language.

Subsequently, the Rules of the High Court 1980 which govern the manner in which court proceedings are carried out was also amended to mandate the use of the national language. However, this restriction only applies to court proceedings within West Malaysia. Sabah and Sarawak still continue to be allowed to use the English language. In fact, the Rules of the High Court 1980 directs that for Sabah and Sarawak, any document to be used in court shall be in the English language and may be accompanied by a translation in the Malay language.

“Order 92 Rule 1 of the Rules of the High Court

(1) Subject to subrule 2, any document required for use in pursuance of these rules shall be in the national language and may be accompanied by a translation thereof in the English language…

(2) For Sabah and Sarawak, any document required for use in pursuance of these rules shall be in the English language and may be accompanied by a translation thereof in the national language …”

If you speak to some senior lawyers who moved out of litigation, the compulsory switch from the English language to the Malay language more or less cemented their decision to leave litigation for good. This also signalled the start of the ‘mandatory’ component of every pupillage, translation!

All court documents now need to be translated into the Malay language, and I am sure every single pupil would have done their significant share of helping lawyers to translate affidavits or other cause papers into Malay. Some of the larger law firms can afford to employ dedicated translators to help with some of the translation. But ultimately, there is still no escaping from doing your own translation work. Having worked hours and hours crafting an affidavit, you then spend as many hours leafing through English-to-Malay dictionaries to translate your work. I always find it ironical that the English portions are marked ‘Terjemahan’ (‘translation’ in Malay) when in actual fact, the English portions are drafted first and then translated into Malay.

This compulsory use of the Malay language is relaxed somewhat at the High Court when lawyers are making submissions. Generally, the Registrars and the Judges allow you to file in your skeletal written submissions in English, as well as to orally submit in English. At the subordinate courts, the use of Malay is still more or less compulsory. This means written and oral submissions all have to be in Malay. With my atrocious command of Malay, no surprise then that I do not look forward to my matters at the subordinate courts.

At the appellate courts, being the Court of Appeal and the Federal Court, English is almost exclusively used. I know of certain appellate judges who will tick off Counsel for failing to file in the English translation of the court papers at the High Court level, when these documents are referred to at the appellate stage.

English is also widely-used in the written judgments of the Courts. I would estimate at least 90% of the reported judgments are in the English language.

It is a pity that the court system had to adopt the usage of the Malay language, and could not enjoy the previous exemption. From a commercial point of view, nearly all contracts are drafted in English and it would make sense for litigation arising from these contracts to continue in English. The language used in international commerce is largely English, so again, if parties negotiate for Malaysian courts to adjudicate on a dispute, it would be a plus for the Court language to be in English.

But the use of the Malay language in the Court is necessary as this is a common language understood by all Malaysians. In a criminal court for instance, if charges are being read out to an accused who is unrepresented, the Malay language would largely be understood by all.