LEGAL DRAFTING

(GENERAL PRINCIPLES)

A. GENERAL

1. The structure of Courts in Malaysia is where the lowest court is the

Magistrates Court or the Sessions Court. Thereafter is the High Court who
has original jurisdiction (cases can be commenced at the High Court) as
well as the appellate jurisdiction (appeal from cases at the magistrates
court or sessions court).

2. Cases which are appealed to the High Court from the Magistrates Court and
the Sessions Court, an appeal to the Court of Appeal can only be filed with
the leave of the Court of Appeal. To obtain leave the party intending to
appeal has to show the Court that there is an error of law committed by the
Judge of the High Court or an important point of law in the case. In the
event leave is obtained than the party appealing can file an appeal to the
Court of Appeal. However if leave is not granted that is the end of the matter
as there is no further avenue for appeal.

3. Where cases have commenced at the High Court a party who is not satisfied
with the decision of the High Court, the party can appeal to the Court of
Appeal. However if the party is not satisfied with the decision of the Court
of Appeal, an appeal to the Federal Court can only be filed with leave of the
Federal Court. To grant leave a party has to show that there is a novel point
of law and that a point of law has never been decided by the Federal Court
before or it is a point in the interest of the public.
4. The above structure of Courts and the appeals that are possible is provided
under the Courts of Judicature Act 1964.

5. To initiate legal proceedings, the party intending to commence legal

proceedings will usually issue a letter of demand. In the event there is no
response the party will commence proceedings by filing a Writ and
Statement of Claim.

6. Documents involved in a suit are known as:-

a) Pleadings:
(i) writ with a statement of claim;
(ii) defence; and
(iii) reply to defence

7. Before the amendments, a suit that is commenced at the Magistrates Court

and the Sessions Court is commenced by filing of a Summons and
Statement of Claim and at the High Court by filing a Writ of Summons
and a Statement of Claim

8. However after August 2012 a common pleading is filed at the Magistrates

Court, Sessions Court and the High Court which is the Writ and the
Statement of Claim.

9. Previously the Magistrates and Sessions Courts are governed by the

Subordinate Court Act 1948 and the Subordinate Court Rules 1980.
10. The High Court (High Court of Malaya, High Court of Sabah & Sarawak,
Court of Appeal and Federal Court) are governed by the Courts of
Judicature Act 1964, the Rules of the High Court 1980 and the Rules of
the Court of Appeal 1994 and the Rules of the Federal Court 1995.

11. From August, 2012 proceedings at the Magistrates Court, Sessions Court
and the High Court are governed by common rules, known as Rules of
Court 2012.

12. Prior to the commencement of any proceedings it is important for the

counsel to consider the sum claimed also known as the quantum of the
monetary claim. This will determine the Court at which the proceedings are
to be filed. Therefore the monetary jurisdiction of the Court have to be
taken into consideration.

13. Pursuant to the earlier rules the monetary jurisdiction of the Court was as
follows:-

a) Magistrates Court may hear any action where the amount in dispute
or the value of the subject matter does not exceed RM25,000.00
(section 90 Subordinate Court Act 1948);

b) Sessions Court may hear any action where the amount in dispute or
value of the subject matter does not exceed RM250,000.00 (i.e. any
case where the value is RM25,000.00 to RM250,000.00) and has an
unlimited jurisdiction in respect of motor vehicle accidents, landlord
 and tenant matters and distress matters (section 65 Subordinate Court
Act 1948);

c) High Court may hear any action where the amount in dispute or value
of the subject matter exceeds RM250,000.00.

14. The monetary jurisdiction of the Courts have been amended in March, 2013
where the new monetary jurisdiction of the Courts is as follows:-

a) Magistrates Court may hear any action where the amount in dispute
or the value of the subject matter does not exceed RM100,000.00.

b) Sessions Court may hear any action where the amount in dispute or
value of the subject matter does not exceed RM1,000,000-00 (i.e. any
case where the value is RM100,000.00 to RM1,000,000.00) and has
an unlimited jurisdiction in respect of motor vehicle accidents,
landlord and tenant matters and distress matters.

c) High Court may hear any action where the amount in dispute or value
of the subject matter exceeds RM1,000,000-00.

15. Besides the monetary jurisdiction the Counsel has also to consider the
territorial jurisdiction. This means the place ay which the case is to be filed.
Whether in Kuala Lumpur, Shah Alam, Kuala Terengganu or Kota Bharu or
anywhere else.
16. This is provided in the Courts of Judicature Act 1964, where factors to take
into consideration are :-

(a) The place where the defendant is residing;

(b) The place where the cause of action occurred.

17. Prior to commence proceedings Counsel has also to take into consideration
that the claim is valid and not statute barred i.e the limitation period to
commence the proceedings has not expired. In the case of contractual claim
the limitation period is 6 years and in the case of tortuous claims the
limitation period is 6 years.

18. In commencing proceedings one has to consider 3 factors namely:-

(a) Format of the Pleadings.

(b) Material Facts are pleaded in the Statement of Claim.
(c) Legal And Proper Language.

B. STATEMENT OF CLAIM - FORMAT

19. The requirements of a Statement of Claim are governed by Order 18 of the

Rules of the High Court 1980 (if filed at the High Court, previously) and
Order 14 of the Subordinate Court Rules 1980 ( if suit is filed at the
Magistrates and Sessions Court previously) .
20. Under the Rules of Court 2012, Order 18 of the said Rules provide that all
material facts must be pleaded in a Statement of Claim.

21. These rules provide for a standard format in relation to different statements
of claim.
.
22. The general format of a statement of claim is as follows:-

IN THE SESSIONS COUR AT KUALA LUMPUR

IN WILAYAH PERSEKUTUAN, MALAYSIA
CIVIL SUIT NO. ………………….

BETWEEN
.......................................... PLAINTIFF
AND
…………………………... DEFENDANT

STATEMENT OF CLAIM

[BODY OF THE STATEMENT OF CLAIM]

[PRAYERS]
 [DATE]

[SIGNATURE OF THE PLAINTIFF’S LAWYER]

[ENDORSEMENT]

C. HEADINGS OF STATEMENT OF CLAIM

23. Generally, statements of claim can be divided into those which are filed in
relation to contractual matters and those which are filed in relation to
tortious matters. The headings and the first 2 paragraphs of both are the
same.

IN THE …………………….. AT…………………..

IN THE STATE OF …………………., MALAYSIA
………… No…………OF…..

BETWEEN
........................................... PLAINTIFF
AND
…………………………... DEFENDANT

STATEMENT OF CLAIM

1. ……………………….

2. ……………………….
25. Under the new rules, Rules of Court 2012 the suit is filed as Civil Suit No.
22-234-2013 or as NCC (commercial) and NCVC (civil).

27. This refers to the full name of the plaintiff together with the plaintiff’s
identity card number. If the plaintiff is a company then the company’s full
name and company number have to be stated.
E.g.: Simon Lee Weng Kwong
(NRIC No.___________)
Primax Sdn. Bhd.
(Company No.:________________)

28. If the party is a sole proprietor the suit is to be filed in the name of the
person and not the business as the business is not a legal entity.

E.g. Simon Lee Weng Kwong

(NRIC No. )
(trading under the name and style of “Lee Enterprise”).

29. After the names are stated in the heading of the Statement of Claim, note
that throughout the statement of claim, the individual or company who is the
plaintiff is to be referred as the “Plaintiff” and not by name.

Eg:

“The Plaintiff is an individual with his/her address at

……………………………… and/or last known address at ……………..”
 “The Plaintiff is a company incorporated in Malaysia with its registered
address at …………. and carrying on business at…………. “

30. The second paragraph of a statement of claim always gives the following
details of the defendant:-

(i) whether or not the defendant is an individual or a company;

(ii) details of the defendant’s address (home or registered address or
business address or last known address).
(iii) if the defendant is a company then the general trade of the company
should also be stated.
(iv) Note that throughout the statement of claim, the individual or the
company who is the defendant should be referred to as “the
Defendant” and NOT by name.

Eg:

“The Defendant is an individual with his/her address at

……………………………… and/or last known address at ……………..”

“The Defendant is a company incorporated in Malaysia with its registered

address at …………. and carrying on business at………….”

D. BODY OF THE STATEMENT OF CLAIM

31. The body of the statement of claim depends on the type of the claim being
filed by the plaintiff and will set out the plaintiff’s version of the
 circumstances which led to the claim. These facts must be set out concisely,
precisely and as accurately as possible as the general rule is that parties are
bound by their pleadings.

E. PRAYER

32. The Prayer refers to the part of the statement of wherein the plaintiff sets out
the details of the plaintiff’s claim against the defendant and is called the
prayer as the plaintiff is ‘praying’ for the court to grant its claim. This would
be dependant on whether the plaintiff is claiming damages and/specific
performance and would also include a prayer for interest (both interest
which is claimed under the contract and/or judgment interest which is
permissible in law).

F. DATE & SIGNATURE OF PLAINTIFF’S LAWYER

33. Every statement of claim must be dated and signed by the plaintiff’s solicitor
in the name of the solicitor’s law firm as it shows who has prepared the same
on behalf of the plaintiff. The statement of claim should bear the same date
as the date that it is filed into court.

G. ENDORSEMENT

34. Every statement of claim must carry an endorsement which will give the
details of the name and address of the law firm which is filing the same on
behalf of the plaintiff for the purposes of service of other documents.