This post is taken from and expanded from a note I circulated to my team. This is a 12-step checklist I impose on my lawyers whenever they draft their court papers.
#1. Sample Precedent from the Firm / Colleagues
As a starting point, we may ask for a sample precedent from colleagues. That’s fine as an initial step but we must adopt all the other following steps.
#2. Read Atkin’s Forms and Bullen & Leake
Compare with the English Atkin’s Forms. The English civil procedure rules changed significantly post 1999 so if the application is based on civil procedure rules rather than a specific area of the law, go and look back at the older version of Atkin’s. Also read the English Bullen & Leake & Jacob’s Precedent of Pleadings. Both Atkin’s and Bullen will have useful comments and notes, and references to cases.
#3. Read Malaysia Atkin’s Forms and Bullen & Leake Malaysia
Then read the Atkin’s Court Forms Malaysia and Bullen & Leake & Jacob’s Malaysian Precedents of Pleadings.
#4. Read Annotated Statutes and Leading Textbooks
Where your application is based on a specific section of a statute, check the annotated Malaysian statutes to have a read of the description and the cases on that section. CLJ Law provides a useful Noter Up function when you click on specific provisions of any Act. Read any of the leading textbooks (both under English law and Malaysian law) on that area of the law to get a feel of the commentary and recent cases.
#5. Read Annotations to Rules of Court 2012
Where your application is grounded on a specific provision of the Rules of Court 2012, have a read of the LexisNexis Annotation of the Rules of Court 2012 and the Malaysian Whitebook on Civil Procedure. If you want to be thorough, have a read of the old English Rules of the Supreme Court to have a feel of what the old English authorities have to say. Our Rules of Court 2012 (and the older Rules of the High Court 1980) were based on the Rules of the Supreme Court. The newer English Civil Procedure Rules (CPR) are no longer that applicable.
#6. Look for Recent Cases
Have a quick read of some recent appellate authorities on the specific statutory section / Rules of Court 2012 provision. In particular, see what sort of objections may have been raised before. These cases also help to sometimes set out the wording of the Orders being sought for. You can check the wording of your application with what was decided in that case and what was argued in that case. I often do this. So if there is a challenge on the wording of your Order, you already have a case on hand to show that the Court has allowed a similar Order before.
#7. Be Careful of Intitulement and State Reliance on Particular Provision
Be careful of what you set out in the intitulement and what specific provision your application is relying upon. Often, you want to insert a catch-all reliance on the ‘inherent jurisdiction of the Court’. So for example, in your Notice of Application for security for costs, “ … the Plaintiff prays for an Order under Order 23 of the Rules of Court 2012 and/or the inherent jurisdiction of the Court for security for costs …..” The failure to set out the intitulement clearly or the specific provision can sometimes be fatal to your application. Or at the very least, you do not want to attract preliminary objections.
#8. Armed with All of the Above, Start Drafting
Only with the above precedents, having read the textbooks and having checked the cases, should you then draft the originating court process, court application, or the affidavit in support.
#9. Post-Drafting, How Does the Actual Order Read?
After drafting, take a step back and think of the Order(s) that you are seeking. It is useful to already have the draft Order in hand and read through that draft Order. Double check whether it will be easy to enforce, or whether procedural objections could be taken. More so, if you are applying for Orders ex parte (e.g. leave to enter JID, registration of foreign judgment, or garnishee proceedings). When you serve such an the Order, the Defendant has a right to set aside the Order. That is where procedural objections may be raised.
#10. Think of Actual Enforcement of the Order
If you are asking for Orders to compel a party to take certain steps, a question to ask is whether it will be appropriate to set a time frame to carry out such steps. A set time limit for a party to do something will give you the benefit of a penal indorsem*nt on the Order (as provided for under the Rules of Court 2012). If there is a breach of this time limit, committal proceedings can be taken. When setting out time frame, you must also think about whether you want time to run from the date of the Order (and so the sealed Order must be served personally before the expiry of the time frame in order for committal to bite). Alternatively, it may be better safer to have time run after the service of the Order.
#11. Think of Need for Possible Committal
If you are eventually going to plan for the possibility of committal or at least the threat of using committal against the other party in breach, you must be technically very sound in the procedure, personal service requirement, making sure the Order and the penal indorsem*nt are sealed.
#12. Read all Relevant Practice Directions
Finally, before filing a particular originating process, double check all the Practice Directions on the proper Court division to file in. Do not blindly follow past precedents or past practices. In the KL High Court, there are three divisions: Commercial, Civil, and the Appellate & Special Powers Division. In addition, also address your mind whether it is appropriate to file your matter in which State Court (e.g. filing in Kuala Lumpur or in Selangor). Anticipate whether there can be objections and already have the cases on hand on this issue.
- For a related post, also inspired from tips I gave to my team, you can read 10 Tips for More Effective Written Submissions.
