by Choo Dee Wei
Published June 27, 2018
“I’ll sue you/him/her/it/them!”
This is something not uncommonly said, whether in jest or seriousness.
But what does “I’ll sue you” really mean?
It means that you are taking someone to court, or someone is taking you to court.
But how do you commence court proceedings? There are mainly two ways in Malaysia: first by ‘writ’, the second by ‘originating summons’. (There are other ways, but they will not be dealt with in this article.) In general:
Writs are taken out when the features of a case require that a trial be held. A trial means that the case is particularly contentious on the facts.
Unlike writs, proceedings by originating summons primarily proceed by affidavits. Some cases by this mode are contentious; many are not. And they lead to hearings, not to trials.
When people unfamiliar with court think of legal proceedings, they are usually thinking of proceedings commenced by writ. I will therefore deal with these first today.
Once a plaintiff has decided on the proper mode, he will then have to commence his suit. Note what happens, in the context of writ proceedings:
First, he will have to prepare his papers: principally, the ‘Writ of Summons’, and accompanying it, the ‘Statement of Claim’. The writ is the formal paper of summons, while the ‘Statement of Claim’ will contain the details and particulars of his case.
In both the Writ and Statement of Claim (and all ensuing papers), he will identify himself as the ‘Plaintiff’, the person or entity suing. The person or entity being sued is identified as the ‘Defendant’.
The plaintiff will then file his papers. When filed, the court registry will assign a unique case number to that writ, to identify his case indefinitely. With this, and the affixing of the seal of court, the suit is ‘born’, and becomes live.
The papers will not just be between the plaintiff and the court – they must be ‘served’ (given) to the defendant. As to why, consider this analogy: it is not enough that a fighter (plaintiff) enters the ring – he must also throw his challenge to a prospective fighter (defendant).
The prospective fighter may then choose to answer the challenge. If he so desires, and when he receives the papers, he must disclose his ‘presence’ and public willingness to defend against that claim by filing a document known as a ‘Memorandum of Appearance’.
Once the defendant does so, he may then file his defence. If the situation calls for it, he may even include a counterclaim against the plaintiff, who has just an equal right to defend against that counterclaim and to further reply to the earlier defence.
These documents, collectively, are termed ‘pleadings’. Pleadings are defined thoroughly in a set of laws known as ‘the Rules of Court 2012’, which lays down the rules of the ‘fight’ among parties.
Pleadings form the foundation of all registered cases. The court will not permit wanton deviation from them, and after a certain period they can no longer be amended without ‘leave’ (permission) of court.
You can sometimes hear people saying “I’ll sue you!” in jest. This usually ends in laughter.
But if ever that phrase were said in seriousness, and to you, get a lawyer as soon as possible. Court procedures are not the most obvious of things to the uninitiated, and threats to commence them should never inspire laughter.