Introduction
This 5-part series seeks to give an overview and outline of the civil litigation process in the courts of Malaysia. In this article, we will be focussing on the commencement and initial stages of civil litigation and the rules of pleadings.
Initiating a Claim
The litigation process is governed by a set of rules collectively known as the Rules of Court 2012 (“the ROC 2012”).
A civil claim against a party can be commenced either by a Writ of Summons (“Writ”) (in Form 2 of the ROC 2012) or Originating Summons (“OS”) (Form 5 or 6 of the ROC 2012), both of which will remain valid for a period of 6 months from the date of its issue. The rules concerning an OS will be discussed in a separate article.
Pertaining to an action commenced by Writ, under Order 18 rule 1 of the ROC 2012, the Plaintiff shall then issue and serve the Writ and Statement of Claim on the Defendant. A Statement of Claim shall state specifically the surrounding facts and the relief or remedy which the Plaintiff is claiming from the Defendant.
Entry of Appearance and Defence
An entry of appearance is a formal submission in response to the summons, to the Court informing them that the party being sued is represented by a solicitor and/or is going to defend him/herself.
The Defendant shall enter appearance by properly completing a memorandum of appearance (in Form 11 of the ROC 2012), within fourteen (14) days from the date of service, failing which a Judgement in Default of Appearance may be entered into against him/her. The issue of a Judgement in Default of Appearance will also be discussed in a separate article.
Subsequently, Order 18 rule 2 of the ROC 2012 provides that a Defendant who enters appearance shall then serve a defence on the Plaintiff within fourteen (14) days after the time limited for appearing or after the Statement of Claim is served on him/her, whichever is the later.
The Plaintiff then has a right to file a reply to the Defendant’s defence and/or counterclaim within fourteen (14) days from the date of service of the defence and/or counterclaim.
What are Pleadings?
To put it simply, pleadings are the foundation on which a claim is based on. These documents submitted to the Court are written statements of facts that sets the narrative of a litigant’s case. As mentioned in the foregoing paragraphs, a Statement of Claim, Statement of Defence and Reply to Defence are all pleadings.
In the case where the Defendant has a counterclaim, the pleading ought to be the Statement of Defence and Counterclaim and the subsequent reply by the Plaintiff ought to be the Reply to Defence and Defence to Counterclaim.
Close of Pleadings
Once all these documents have been issued, filed and served, pleadings are deemed to be closed. The narrative of a litigant’s case is then taken note of by the Court and thereafter, the Court will pronounce a closing of pleadings.
Under Order 18 rule 20 of the ROC 2012, the close of pleadings is at the expiration of fourteen (14) days after the service of the Reply to Defence and/or Counterclaim or if there is no reply, at the expiration of fourteen (14) days after the service of the defence.
Summary
Generally, once pleadings are closed, parties are then bound by their pleadings and are not allowed to adduce further facts which they have not previously pleaded. This is to ensure that there is no element of surprise in a civil litigation proceeding.
As such, pleadings play an important role in setting the foundation to which a litigant’s case will be based on. Evidence that may be presented at the later stage of the proceedings ought to also be bound by the case pleaded in the respective pleadings.
Accordingly, the facts laid down in the pleadings ought to be precise, accurate and as much as possible, be substantiated by evidence.
For further information, please contact:
Darren Lai, Partner, Richard Wee
dl@richardweechambers.com
