Under the guidance and mentorship of our Consultant, Shahul Hameed Amirudin, our Litigation Partners, Idza Hajar Ahmad Idzam and Lee Sheen Yee, together with Legal Associates, Chee Wei Lum and Nur Dalili Fahimah Nuradli Ridzwan Shah from our Litigation Practice Group, successfully obtained a unanimous decision from the Federal Court allowing the Appellants’ appeal against the interlocutory decision of the Court of Appeal.
The Federal Court’s decision provides clarity and insight into the extent to which litigants in person, particularly those who possess legal qualifications and practical legal experience, may be accorded indulgence, granted leniency or even afforded a certain degree of exemption by the Courts in respect of procedural non-compliance.
The appeal arose from a proceeding commenced by the former employers (“Appellants”) against a former employee (“Respondent”) in the High Court seeking for, amongst others, a declaration that the Respondent be declared as a vexatious litigant due to her history of instituting multiple proceedings against the Appellants and her incessant conduct demonstrated throughout those proceedings.
On 21.05.2024, the High Court allowed the Appellants’ application and declared the Respondent to be a vexatious litigant (“Vexatious Litigant Order”). The High Court Vexatious Litigant Order, amongst others, restrained the Respondent from commencing further proceedings against the Appellants relating to the matters previously litigated without first obtaining leave of the High Court.
Dissatisfied with the High Court’s decision, the Respondent, acting in person, filed an appeal to the Court of Appeal and subsequently applied for a stay of execution of the Vexatious Litigant Order pending disposal of the appeal.
Despite various alleged procedural non-compliances by the Respondent, including issues relating to the filing of a defective affidavit, exhibits, written submissions and authorities, the Court of Appeal granted the Respondent’s application for a stay of execution on 04.07.2024 pending disposal of the appeal.
The Appellants subsequently obtained leave from the Federal Court to appeal against the interlocutory decision of the Court of Appeal. The appeal raised, amongst others, important questions concerning the treatment of litigants in person who possess legal qualifications and whether such litigants should be held to the same procedural standards as represented litigants.
Upon hearing the submissions of the Appellants, the Federal Court unanimously allowed the appeal with costs. The Federal Court held, amongst others, as follows:-
1. The same standard of procedural compliance applies to both represented and unrepresented litigants. However, where an unrepresented litigant possesses legal qualifications and practical experience in the practice of law, such circumstances ought to be taken into consideration by the Court when assessing any alleged non-compliance with the Rules of Court; and
2. A legally qualified litigant in person cannot rely solely on his or her status as an unrepresented party to seek greater indulgence or exemption from compliance with procedural requirements. Such a litigant is expected to possess sufficient knowledge and understanding of the manner in which litigation is conducted and the procedural obligations imposed under the applicable rules.
Accordingly, the Federal Court answered the Leave Questions raised in the appeal as follows:-
Leave Question 1 – Affirmative
Whether in granting the liberty and/or permission to a person in any court proceeding, the fact that the litigant is legally qualified ought to be considered. If so, to what extent should a litigant in person who possesses legal qualifications ought to be aware of the mode and manner in which a litigation is conducted?
Leave Question 2 – Affirmative
If the answer to Question No. 1 is in the affirmative, whether the Rules of Court 2012 and the Rules of the COA 1994 ought to be complied with by a litigant in person possessing legal qualifications but is unrepresented by solicitors to a similar degree as a litigant who is represented by solicitors?
Leave Question 3 – Negative
If the answer to Question No. 2 is in the affirmative, should the deciding Coram in exercising their discretion consider one or more or all of the following:-
i. a defective affidavit (where the national language version of the affidavit which was not properly sworn and affirmed in accordance to Order 41 rule 1 of the ROC 2012 and Order 92 rule 1(1) of the ROC 2012);
ii. a defective affidavit where the exhibits were not properly identified by a certificate of the person before whom the affidavit is sworn in accordance to Order 41 rule 11 of the ROC 2012; and
iii. a written submission and bundle of authorities which were not duly filed into Court and was only served on the Appellants on the day of the hearing.
In allowing the appeal, the Federal Court further set aside the Order of the Court of Appeal granting the stay of execution and maintain the Vexatious Litigant Order of the High Court.
This decision represents an important clarification by the Federal Court on the legal principles governing the treatment of litigants in person, particularly those who possess legal qualifications and experience. The Court affirmed that the mere fact of being unrepresented whether by circumstance or by deliberate choice, does not constitute a “ticket” to escape compliance with the applicable rules of procedure or to avoid being bound by them.
The decision reinforces that while Courts may adopt a practical and fair approach towards unrepresented litigants, such considerations do not extend to granting a blanket exemption from compliance with procedural rules, especially where the litigant possesses the requisite legal knowledge and experience.
Please email your details to look@zulrafique.com.my if you would like to subscribe to our Knowledge Centre.
