by Fahri Azzat
Published September 25, 2010
Article first published in Loyar Burok on 25.09.2010.
After my spectacular debut in the Court of Appeal in 2002, my boss Encik Izzat Othman thought it time for me to argue a contested hearing in the Court of Appeal. The appeal revolved around a simple issue of law of whether our client’s claim (the Respondent in the appeal) should be referred to arbitration pursuant to the arbitration clause that arose in a straightforward sale and purchase agreement of a few pieces of property.
Allow me to digress here to say a bit about this habit of inserting an arbitration clause in such an agreement. To do so is the height of corporate drafting silliness. I’ve also seen them in settlement agreements, and even scholarship/bond agreements. I cannot fathom their use in such straightforward and low value (it does not involve a huge sum of money) agreements. The cost of an arbitration would usually far exceed the value of the dispute.
What is more the presence of an arbitration clause tends to slow down the litigation process later if it occurs. Often at the start of the legal suit, the Defendant would file an application to refer the matter to arbitration pursuant to section 6 of the Arbitration Act 1952 (now section 10 of the Arbitration Act 2005) instead of having the dispute adjudicated in the courts at the start of the hearing. Valuable time, effort and expense is spent fighting off this distracting, delaying application.
A good corporate lawyer should be able to perceive and account this as much as possible in the agreement they prepare. They should draft a contract that would also reduce the cost of dispute resolution in the event of a dispute between the parties later, not increase it. The presence of an arbitration clause in such agreements also indicate a sloppiness on that corporate lawyer’s part because they failed to remove an irrelevant or unnecessary clause and failed to appreciate that it was inappropriate to the parties’ relationship with each other.
Returning to the appeal, since we were the Respondent in the appeal (and the Plaintiff’s in the High Court below), we were to argue that there was no dispute on the agreement or arising out of the agreement itself. The legal proceeding should not be stayed because it was a straightforward debt claim. The Appellant however would argue that there was an arbitration clause and seek to demonstrate that somehow our client’s debt claim fell into the terms of the arbitration clause. All in all a pretty straightforward one issue appeal to argue. Well that’s how it appears to me now seven years later.
I still remember back then how awesome, massive and dangerous the case appeared to me and induced a sense of panic. First, this was not merely a contested application. It was a whole appeal, hokay! Second, if it was contested, there was going to be arguments from both sides. I would have to address the three judges. How do I address them, collectively or singly? If they ask questions simultaneously, whose do I deal with first? What if I said something wrong and lost the entire appeal because of a reckless nod of the head? What if they asked something I hadn’t thought about? Third, it did not help that my boss told me that I had to have the entire record of appeal (about 200+ pages) at my fingertips and recommended I memorise it. I tried and failed because I’m crap at memorising. There seemed to be endless avenues of argument and technique to explore and hone before arguing such an appeal.
Thankfully my mental torture was only a mere two weeks but that’s simply because he gave me two weeks notice of it. It was sometime in early March 2003 that the appeal came up. My boss accompanied me that morning and was annoyingly calm and relaxed. He was full of smiles and enjoying a conversation with his many friends often punctuated with an outburst of laughter in the courtroom. I was rooted to my seat anxiously flipping through the appeal record and submissions endlessly, perhaps assuring myself that my sheer industry would ensure a win.
When the bell rang and the court commenced its session, my boss quickly whispered to me to be ready because the bench liked to call the cases with more junior counsels first. This sent me into a further panic. I was earnestly hoping to see at least one other lawyer crash and burn before I did for some semblance of comfort. I know, but hey, misery loves lot of company!
On the bench that morning was Dato’ Mokhtar Sidin chairing with Dato’ Abdul Kadir Sulaiman and Dato’ Abdul Aziz Mohamad on the wings. They dispensed with a few motions before calling up the appeals, and ours was the second or third that was called up. It’s a bit hazy now but I think my friend, Andrew Teh, had his case called up before mine and argued his case, I thought, very well despite the bench disagreeing with him. I resolved to observe and listen carefully to how he tackled the bench and found space to put his arguments to them.
Then our case was called up and after the introductions, the submissions commenced. This was one of those days when the bench was prepared. By that I mean that all the judges appeared to have read the records, were prepared for the hearing and took an interest by engaging counsel arguing the appeal. This can be contrasted with some days when you get the distinct feeling the bench were “winging” it because they would be ignorant about the facts, the thrust of the case or the issues involved and have a sense of the clueless about them. And so there is some semblance of balance, the same can be said of some counsels appearing too.
Anyway, the bench were alive to the issues that morning and made a beeline for the Appellant’s counsel and assailed her with questions. To be fair, the Appellant had an uphill case. After about fifteen minutes of battering, I grew more confident with each minute since the Appellant’s counsel had not made any persuasive submission throughout. As the hearing went on, I abandoned my prepared submissions and was furtively re-writing a new one that I hoped would eloquently finish off the appeal as quickly as possible.
When the bench finally ended their interrogation, I could not wait to launch into my freshly prepared and triumphant submission. I was ready to leap up upon being called upon. Call they did but not to me; Dato’ Mokhtar Sidin addressed my boss and told him that they were unanimous that the appeal was devoid of any merit whatsoever and that they would not call upon us to argue.
They thanked both sides, dismissed the appeal with costs and called up the next case.
And so concluded my first contested Court of Appeal hearing.