The Malaysian Lawyer

Recently, a young lawyer asked me for advice on how to generally switch practice areas to move into litigation. From my brief advice, I thought it would be useful to set out and expand on my tips. I write this especially from the lens of a commercial litigator.

These tips are shaped by my personal experience. Please feel free to suggest more tips in the comments section and where we can learn from other lawyers’ experiences.

Before going into the tips, I answer the question below.

What is Commercial Litigation?

Commercial litigation centres on disputes between companies or businesses. You will be fighting business disputes. As there are so many different types of businesses, you will be immersed in the parties’ commercial dealings and their history. With the globalised nature of so many businesses, a lot of your disputes may also have a cross-border or some international element.

I set out the 10 tips to guide your path to being a good commercial litigator. This can also act as a rough checklist of the expected skills.

Tip #1: Master Civil Procedure

As a starting point, you must master civil procedure. So, you must be very comfortable with the range of common Rules of Court 2012 provisions. You cannot make procedural mistakes, miss mandated timelines, and be forced on the back foot to fight off preliminary or technical objections.

Common provisions that you should know:

• Commencement of Originating Process: Writ of Summons, Originating Summons or some other mode? Read Order 5, Order 6, Order 7 and sometimes, Order 88 for Companies Act matters.
• Timelines for the Writ of Summons process: From Appearance to the Close of Pleadings. Read Order 6, Order 12 and Order 13.
• Originating Summons Procedure: Read Order 7, Order 28 and also how they cross-refer back to the Writ of Summons provisions.
• Service Out of Jurisdiction: Whether applying or setting aside service out of jurisdiction. Read Order 11 and section 23 of the Courts of Judicature Act 1964.
• Familiarity with drawing up of Orders and the Allocatur for costs.
• Timelines for the exchange of pleadings and affidavits.
• Court Practice Directions. For example, know the timelines under the Practice Direction 1 of 2020 (link to Kwan Will Sen‘s post).

You will want to have the annotated publications on the Rules of Court 2012: the Malaysian ‘White Book‘, or the Malaysian Court Practice, or both!

Tip #2: Research and Know the Law

No matter how senior, you will never stop having to research and read up on the law.

Get your research methodology right. You will have to train your mind critically to question the case law or passage that you have found. Is that truly the ratio of the decision? Is there a way to distinguish this case? Has this case been followed in other cases?

Commercial litigation will stretch you into all different areas of the law. Your research methodology will need a combination of:

• Reading the leading practitioner textbooks on that area of the law.
• Reading the statutes and then looking up the annotated statutes.
• Searching through case law in Malaysia and other jurisdictions.
• Read other commentaries on the law.

By reading around the law, and understanding first principles, all of that knowledge will be a fixed deposit for the rest of your litigation career.

Tip #3: Draft Your Pleadings and Affidavits Well

Draft your pleadings well.

For pleadings, especially for a Statement of Claim, you will want to adopt this methodology:

• Reading through the Atkin’s Court Forms for the UK approach.
• Checking through Bullen & Leake & Jacob’s Precedents of Pleadings also for the UK approach.
• Atkin’s Court Forms in Malaysia. This publication is especially useful for applications filed under the Rules of Court 2012.
• Read through Bullen & Leake & Jacob’s Malaysian Precedents of Pleadings.

For difficult and non-run-of-the-mill actions, I carry out a court file search of recently reported cases. Where that case was successful, I will read through the court papers to get ideas on the pleadings.

A large part of your litigation drafting will also be Affidavits. You will then have to learn how to tell an effective story through the Affidavit. You will want to use section dividers and headers.

Tip #4: Know These Interlocutory Applications

Gain experience in these types of interlocutory applications.

Know the leading cases and the threshold to obtain or resist such applications.

• Summary judgment (read this funny account by Fahri Azzat on his blog, From the Bar Stool, on the dangers if an applicant is not aware of the legal requirements).
• Striking out.
• Amendment of pleadings, with or without leave.
• Discovery.
• Interlocutory injunctions and the tactical basis for ex parte injunctions, ad interim injunctions, inter partes injunctions, and Erinford injunctions.
• Mareva freezing injunctions.
• Section 44 of the Courts of Judicature Act 1964 allows for orders for interim protection.

Tip #5: Be Good at Evidence and Trial Procedure

Once you have moved beyond the pleadings and some of the interlocutory skirmishes, you will have the trial phase ahead of you.

Be familiar with the pre-trial directions that are normally given. Prepare:

1. Agreed facts and agreed issues to be tried. This involves you carefully analysing the pleadings and it is helpful to come up with a pleadings analysis table.
2. Reviewing the other side’s bundle of documents and getting yours ready. To be familiar with Malaysia’s Part A, Part B and Part C form of classification of documents (read the recent Court of Appeal decision in Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1 at [152] and [153] – grounds of judgment).
3. Working with your witnesses in the drafting of their Witness Statements in the question and answer format.

Be aware of the evidence law issues as you prepare for trial and while in the midst of trial.

For instance, you or your opponent may have smoking-gun documents. But those documents may be useless if they do not formally comply with the strict requirements of evidence. The Court will have to disregard them.

Be familiar with frequently-used sections of the Evidence Act 1950 and with your authorities ready:

• Hearsay and exceptions to hearsay: what steps do you need to do to bring yourself within the hearsay exceptions in sections 32 and 73A of the Evidence Act 1950.
• Notice to Produce under section 66 of the Evidence Act 1950.
• Computer-generated documents under section 90A of the Evidence Act 1950.
• ID documents: How to deal with ‘ID’ documents and the slight wiggle room that you still have.
• Adverse inference: Invoking or resisting adverse inference under section 114(g) of the Evidence Act 1950.

Recommended reading to get you trial-ready:

• Trial Lawyer’s Companion by Nahendran Navaratnam (very useful, especially for the starting litigator).
• Modern Advocacy – Perspectives from Singapore (an older book and from a Singapore perspective. This is an excellent text and with each chapter of the litigation process written by a Senior Counsel).
• Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law (with so much electronic-based evidence, this textbook by Foong Cheng Leong is particularly helpful).

Tip #6: Get Advocacy Experience Whenever You Can

Advocacy is the lifeblood of any litigator. In current times, I would go so far as dividing up advocacy into written advocacy and traditional oral advocacy.

In the end, advocacy is about the art of persuasion and making it simple for the decision-maker to rule in your favour.

Written Advocacy

Starts with the drafting of your court papers and culminating in your written submissions. The ability to break down a complex set of facts or difficult legal principles into something easy to understand. Making use of flowcharts, pictures and extracts from documents.

In the age of Zoom hearings, I increasingly use PowerPoint presentations as a condensed form of an Executive Summary. I will add animations and allow key points to appear and fade out.

Oral Advocacy

When I was a young lawyer, it was invaluable to cut my teeth in advocacy through physical case management sessions before the Registrars or the Judges.

Many interlocutory applications were also first heard before the Registrars. I argued many applications for summary judgment and striking out before the Registrars.

Many of that opportunities are now lost. We have moved to e-review and email case management sessions. So, grab any oral advocacy opportunities. Ask the partner or the senior advocacy at the hearing whether you could at least argue on costs. Or to be able to argue one of the points.

I regularly share the advocacy load with my teammates.

Recommended reading and things for you to do:

• The Malaysian Guide to Advocacy by Fahri Azzat.
• Attend the Malaysian Bar Advocacy Training Course. Tremendously useful and with the sessions conducted in the courtrooms themselves (during the pre-Covid times).
• The Malaysian Bar also organises Written Advocacy courses (see this circular for a course held in April 2021) from time to time.
• The Winning Brief by Bryan Garner (an American style of drafting written submissions. But some incredibly useful tips in here and for you to adapt as necessary for the Malaysian context).

Tip #7: Be Familiar with Arbitration Law and Adjudication

Your practice may start out largely centred on court litigation. But to be a well-rounded commercial litigator, you must also be familiar with both arbitration and adjudication law and procedure.

In contracts, it is common to have an arbitration clause or a multi-tiered dispute resolution clause. Whether the dispute is to move to court litigation or to arbitration, you must be certain which is the correct battlefield.

Be familiar with arbitration law – read up on the Arbitration Act 2005 (AA 2005) and dive deep into the UNCITRAL Model Law on International Commercial Arbitration.

Spot these common arbitration-related issues when you read through a contract:

• Arbitration vs Court Jurisdiction: Arbitration clause vs an exclusive jurisdiction of court clause. Which one to prevail?
• Pathological Clause: Is this a pathological or, in other words, an ambiguous arbitration clause?
• Multi-Tier: Is there some form of multi-tiered process to escalate the dispute through negotiations, mediation and then arbitration? Is that multi-tiered process enforceable?
• Section 10 of the AA 2005: If there is an arbitration clause, and yet one party has filed for court action, can section 10 of the AA 2005 apply? To obtain a Court Order to stay the court action pending arbitration.
• Section 11 of the AA 2005: If there is an arbitration clause, and your client needs urgent interlocutory relief, then whether we can seek relief under section 11 of the AA 2005 for interim measures from the Court.

The above issues and questions have an impact on how you will run any Court action or dispute resolution process.

Further, with the wide reach of the construction industry, you may run into issues arising from the Construction Industry Payment and Adjudication Act 2012 (CIPAA).

The CIPAA process is ultimately an expedited dispute resolution process, with very strict timelines, allowing for an unpaid party to seek payment. As commercial litigators, we must still be alert to the general CIPAA issues.

Recommended readings:

• Arbitration in Malaysia by Thayananthan Baskaran.
• Construction Adjudication in Malaysia by Ivan Loo and Lam Wai Loon.

Tip #8: Read Up on Company Law

You will be resolving a lot of disputes between companies. Hence, you must be familiar with company law. You do not necessarily need to be a specialist in company law disputes and shareholders’ disputes. But be comfortable with how the different corporate organs operate, the Board of Directors’ powers, and the shareholders.

You should understand these general company law concepts:

• Separate legal personality between the company and its owners/shareholders.
• The distinct roles played by the directors and the shareholders.
• Board of directors’ powers and obtaining directors’ resolutions.
• The proper plaintiff rule – where it is often the company itself that is aggrieved and has to bring an action.
• The indoor management rule – an external party is not expected to be alert to or to question the internal approval process of the counterparty. But there are exceptions.

• Companies Act 2016: The New Dynamics of Company Law in Malaysia.
• How to Slay a Dragon – Shareholder Remedies in Malaysia.

Tip #9: Enforcing and Resisting – Garnishee, Committal, Winding Up, Bankruptcy and Reciprocal Enforcement

The litigation process will lead to some form of final Order or Judgment. Be familiar with these modes of enforcing or resisting the Order/Judgment:

• Garnishee proceedings – often used to garnish money in bank accounts. But could also be used to garnish receivables from other parties.
• Committal – if there has been a breach of a prohibitory or mandatory order. To know the procedure of ensuring the Order has a penal indorsement and is properly served. Then the strict procedure for applying for leave for committal and then committal.
• Winding up – against a company: from the issuance of the statutory demand, filing the winding up Petition and all the associated procedural requirements.
• Bankruptcy – against an individual: from the issuance of the bankruptcy notice and then the creditor’s petition to the bankruptcy order.
• Reciprocal Enforcement of Judgments Act 1958 (REJA) – the reciprocal countries under REJA such that foreign judgments can be registered and enforced and vice versa. The procedure to do so. If it is not a reciprocal country, to be familiar with the common law right to enforce a foreign judgment.
• Stay of Execution and Stay of Proceedings: Depending on the circumstances, they may mean the same thing. Whether you need to show special circumstances or not.

Tip #10: Read Widely

You will have to read widely.

Read widely and frequently on legal developments in Malaysia and in other jurisdictions.

Read widely on all business and commercial developments.

My go-to list of reading and staying up to date:

• Ejudgment on the Kehakiman website (for the latest unreported Malaysian decisions).
• CLJ Bulletin (free weekly bulletin every Friday on CLJ’s latest Malaysian reported decisions).
• Singapore Law Watch (for the latest Singapore law news, and Singapore decisions and commentaries).
• The UK Supreme Court (for the UK apex court decisions and videos of the proceedings).
• The Edge Malaysia (Malaysia’s best business newspaper and you can subscribe for the free The Edge CEO Morning Brief).
• The Financial Times.
• Tips on reading Bursa Malaysia announcements.
• Advocates The Podcast (to listen to interviews on the leading advocates from around the world)
• Coffee and a Case Note (an Australian lawyer, James d’Apice, drinks some coffee and updates you on the latest Australian commercial disputes decisions).
• Malaysian law blogs (The Malaysian Lawyer’s list of law blogs to follow in 2021).

Hope that you have found this guide useful. Drop me a line in the comments section if you have any other tips or suggestions. I hope to update this guide from time to time.