Being sued as an individual can be quite stressful. Many lose sleep over it and feel helpless most of the time. A lot of it is due to the fear of the unknown. Save for an out-of-court settlement, there is no means of avoiding being sued. In the face of a legal dispute, rather than avoiding the inevitable, it is more practical to learn a few important things about the process of a legal dispute to ensure that there you would be best able to deal with it.
As the saying goes, expect the unexpected. Here are a couple of pointers for the basic understanding of a legal dispute in court:
Service of legal papers
- 1) What legal papers?
The first step of suing a person involves the service of legal papers onto that person. The legal papers can generally either be a “writ of summons” supported by a “statement of claim” or an “originating summons” supported by an “affidavit”.
- 2) How should they be served?
The service has to be done personally or via A.R. registered post. However, in the event either method of service cannot be performed, the legal papers may be deemed to have been served on a person being sued via substituted service i.e., a process which involves the advertising of the legal suit in newspapers.
- 3) Beware of scams!
Unfortunately, the sanctity of the legal profession has been tainted by scammers who prey on people by tricking them into believing they are being sued with falsified legal papers. These scammers usually tell victims that they can ‘help’ to settle the legal suit if they pay a certain amount of money. Until and after the deed is done, many belatedly realize that there is in fact no legal suit against them, and that they have been scammed.
To circumvent such abuse, our courts assign a serial number for each legal document filed into the courts’ online system. The serial number is found at every bottom page of the legal document which can be used to verify the originality of the document via our courts’ online portal. As such, every person served with a legal document should:
- i) Identify the serial number (now also comes with a QR code) found at every bottom page of the document; and
- ii) Visit the courts’ online portal at https://ecourtservices.kehakiman.gov.my/Document/Verifier/?cultureCode=ms#Verify and key in the serial number to verify the document.
If a document appears on the screen, compare the legal document served with the document on screen to make sure the contents are not tampered with. If there are discrepancies, do consider it as a red flag that a scam might be in the making.
- 1) Why is a lawyer needed?
Those who are served with legal papers are encouraged to promptly seek legal advice. Although it is not mandatory for a person to be legally represented in a legal suit, a person who chooses to defend without legal representation may be overwhelmed by many legal concepts and procedures which may be incomprehensible to a layperson. .
If a lawyer is appointed, the lawyer will act for the client for the entire process of the legal suit unless otherwise discharged of such duties. The lawyer is duty bound to perform in the client’s best interest without regard to personal gain or benefit.
Appearance in court
- 1) Defendant to record appearance
If a person is served with a “writ of summons”, his or her name will appear on the document as a defendant. The document will notify the defendant to enter appearance typically within 14 days after service of the document. In actuality, the court does not require a physical appearance. What is instead needed is a Memorandum of Appearance to be filed to the court pursuant to the Rules of Court 2012.
- 2) Judgment in default of appearance
If no appearance is made within the stipulated time, the party who sues, also known as the plaintiff, may enter a judgment in default of appearance against the defendant provided that the service of legal papers are in order. In other words, a plaintiff may obtain judgment against the defendant in his or her absence after proving to the court that the legal papers have been served and the defendant has failed to enter an appearance.
Defence against claim
- 1) Put up a defence (and counterclaim, if any)
After entering appearance in court, a defendant is required to enter defence as a reply to the statement of claim prepared by the plaintiff. A defence is a statement detailing the defendant’s version of events to refute the plaintiff’s claim. Additionally, the defendant may also prepare a counterclaim against the plaintiff in the same legal suit.
- 2) Gather facts and evidence
At this stage, understanding of facts and portrayal of the defence are crucial. A chronology of events supported by evidence often helps to put everything into perspective and clear off any unnecessary facts for the preparation of a solid defence. As it is detrimental to give inconsistent statements or introduce new facts at a later stage, it is important to set the record straight and clear from the outset through the defence.
- 1) Possible pre-trial actions
There are various kinds of applications that a party to a legal suit can make to the court before trial. Parties most often opt to apply for the summary disposal of the legal suit. For instance, a plaintiff may apply for a summary judgment (i.e., an application to obtain a quick judgment without going to trial) or a defendant may apply to strike out the plaintiff’s claim. The Rules of Court 2012 provide for each of these avenues.
- 2) Can the legal suit end without going to trial?
A defendant may successfully strike out the plaintiff’s claim if he or she can establish any of the following grounds:
- (i) The plaintiff’s claim discloses no reasonable cause of action;
- (ii) The plaintiff’s claim is scandalous, frivolous or vexatious;
- (iii) The plaintiff’s claim may prejudice, embarrass or delay fair trial; or
- (iv) The plaintiff’s claim is an abuse of process of the court.
Notably, the court must be satisfied that the plaintiff’s claim involves a plain case which is obviously unsustainable before allowing the claim to be struck out.
- 1) The climax of THE legal dispute
Perhaps it’s best to describe trial as the court scenes that we usually see in TV shows. The scene will usually portray a judge sitting on the bench from above overlooking the proceedings, lawyers arguing from their respective sides of the courtroom and witnesses testifying on the witness stand.
Preparation for trial is a tedious affair. If a legal dispute is to proceed to trial, the courts will require parties to come up with common agreed facts, common issues to be tried, common bundle of documents and their respective witness statements.
- 2) Securing Witnesses
The trial process focuses on the examination of witnesses i.e., lawyers will take turns to question all witnesses. As witnesses play an important role in the trial, they need to be identified, interviewed and secured beforehand to give oral evidence in court. An individual defendant will most likely be his or her own witness.
- 3) Post-trial written submissions
Once the trial is complete, the court will direct parties to prepare written submissions to present the relevant facts and applicable laws involved in the dispute before making any decision.
- 1) Order or judgment
The delivery of every court’s decision will be reflected into an “order” or “judgment” that will be signed off by a court authorized officer. The same document can be enforced by the winning party should the losing party fail to comply with the court’s decision.
- 2) Appeal
If the losing party is dissatisfied with the court’s decision, he or she may decide to appeal against that decision to a higher court subject to existing laws.
This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.
About the Author
Alycia Chuah Yuin Ting
Halim Hong & Quek