Summary Note On Civil procedure : General Principle of Pleading

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Its been a long time x update my blog with some law notes...

Last time is when I'm having my 2nd year in UM, Law School...

So this time some notes on Employment Law.

(Hope this help u guys out! Do update the cases, current issues and law if there is any changes.)

....................................................So here it is ...............................................

PLEADING

1. GENERAL PRINCIPLES

è General Concept

§ Pleading = A formal doct which are exchanged between the parties in an action & it states the parties’ case vs each other.

§ Pleading covers both statement of claim by the pf & statement of defence by the df.

FUNCTION OF PLEADING

1) Pleadings define the issue between the parties and it prevents surprise at a trial. It explains the case for each party. When judge reads the case from the pleadings, the judge will know the issues arise.

2) Pleadings allow the df to know the exact nature of the pf’s claim & the relief which the plaintiff seek via the SOC. It also allows the df to know the exact nature of the pf’s defence.

3) Pleadings narrow down the issue between the parties and it will discard irrelevant issue. It creates a boundary & it will raise fact and issues disputed between the parties. A party must act within this boundary and he cannot plead issue he did not include.

4) Pleadings ensure the judge and court to know the exact nature of the dispute between the parties. It is the 1^st document the judge will read. It creates an impression to the judge.

5) Pleadings serve as a record of the issues between the parties. Related to Res Judicata. It is to ensure the court proceedings to be carried out fairly.

QS: CAN WE HAVE TRIAL WITHOUT PLEADING?

§ O18 R22: Yes, the court can dispense with the need of pleadings. It is only possible with an order from the court. Either the plaintiff or defendant may apply to the court for a trial without pleadings. If he thinks fit, he may allow a trial without pleadings.

§ The above position cannot be applied to the following case:

i) Libel & slander

ii) Malicious prosecution

iii) False imprisonment

iv) Seduction

v) Breach of promise to marry

vi) Where there is an allegation of fraud

SOC

§ SOC = It’s role is to inform the df about the exact nature of the pf’s claim & the reliefs that the pf seeks.

§ WHEN SOC IS TO BE SERVED?

i. SOC claim served together with a writ

· After serving such doct, df has 14 days or 20 days to enter into appearance.

· After the time limited for appearance has expired (14 days or 20 days have expired), the df now has to serve his defence.

· Df has 14 days to serve for his defence.

· If he fails to enter defence, the pf can apply for judgment in default of defence.

· The function of defence is to inform pf the nature of df’s defence.

· Defence can be either any types as prescribe in SOD.

· For a matter prescribed in the df’s claim for counter claim, df can claim anything vs the pf. It does not have to be in relation to the pf’s claim.

· O15 R5(2): Court may order the df to bring the counter claim in separate action if necessary.

ii. Where the writ is served alone

§ PERIOD TO FILE & SERVE SOC:

· Df has 14 days to enter appearance in Peninsular M’sia & 14 – 20 days in Sabah & S’wak.

· After the expiry date for the appearance has finish, the pf will has 14 days to serve the SOC.

· SOC then need to be filed & served vs the df.

· Once the SOC time has expired, df may applied for the pf’s action to be dismissed. Here, the clock will run again for 14 days, and the pf has to serve the SOC to df.

SOD

§ SOD = 2 types:

1) Defence Simpliciter – If a defence simpliciter is served, the next pleading may be replied, however it is necessary to be replied, it depends on the circumstances of the case.

2) Defence and Counter claim – Df defends & raise a counter claim vs the pf. If defence serve a defence and counter claim, the pf have to file a reply to counter claim (RCC). RCC is not necessary. However a defence to the counter claim (DCC) is a must. DCC is the defence to the df’s counter claim. If pf fail to serve the defence for the counter claim, df can plead for judgment in default.

§ WHEN SOD IS TO BE SERVED?

i. Depend: Is the SOC claim served together with the writ or the writ is served alone?

· If the SOC is serve together with the writ, df has 14 days or 20 days to enter into appearance & another 14 days to serve his defence (SOD).

· If the SOC is served separately, the expiry date for df to serve his SOD will be 14 days after the date of when the SOC is serve to df.

§ PF’S RESPONDS UPON THE SOD:

· After SOD has been served vs pf, Pf has two options.

· 1^st - TO NOT REPLY AT ALL: O18 R14

Here, the if the pf does not agree at all with any defence raise up by the df, pf is in the position of not being necessary to put any reply vs the df. This situation is called as ‘pf is a joinder of issue’ with the df. In another words, it mean that the pf is denying everything stated in the SOD. Pf is a joinder.

· 2^nd - PF HAVE TO REPLY FOR CERTAIN SITUATIONS INVOLVING:

Here, pf need to plead specifically for any matter prescribed under O18 R8. This is referring to the matters prescribed under O18 R16 where the case is involving the pleading on:

i. Limitation

ii. Performance

iii. Release

iv. Fraud

v. Illegality

vi. Any matter which will take the other part by surprise.

Eg: Pf has to plead for fraud. If the df has enter for defence & counter claim, pf MUST serve a defence vs such counter claim. If pf fails to do so, df may enter for judgment of default.

§ IS THE PRINCIPLE IN O18 R14 APPLIES TO SOC:

· No, if the df does not serve any defence vs the SOC served upon him, the pf may enter a judgment in default.

FURTHER PLEADINGS:

· Any pleadings after the reply or defence to counter claim, it comes under further pleadings.

· It cannot be served or filed without a leave of court.

CLOSE OF PLEADINGS:

· O18 R 20: Pleadings is deemed to be closed

14 days after the filling of the reply. If there is no reply, pleadings will close 14 days after the defence to the counter claim. Or if there is no reply and there is no defence to the counter claim, pleadings will close 14 days after the filling of the defence.

GENERAL RULES OF PLEADING

1) Party must plead fact not law

§ Rationale:

· Under the rules of pleading, there is supposed to be a pleading of fact. Pleading present their fact of the case.

· Pleading supposed to be a s/m of fact as the facts that is vital, Facts will determined the law to be applied.

· The law is not for the party to decide. The law is for the court to decide based on the fact presented by the parties.

· If parties are allowed to plead law, they may cloud the issue by concentrating on the law and not emphasizing on the fact. (This give less priority of the fact).

· If parties are allowed to plead law, they may be tempted to conceal and omit fact to make sure their case is tailored towards the law. SOC is a presentation of the facts of the case.

§ Party cannot plead law but he can raise a point of law.

· Raising a point of law is raising an isolated issue pertaining to the law.

· Eg: Pf claim is barred by limitation under the limitation act 1953. The df will argue that the alleged contract is void for illegality. What is the point of law raised – the contract is illegal. Df will contend pf COA is incomplete. It raises an isolated issue of law. Under O18 R8, limitation must be pleaded. (Refer discussion before this).

· Raising a point of law also assist the court so that the court knows he need to identify the issue.

2) Party must plead fact not evidence

§ Eg: Df drove fast, the pf does not need to give evidence to show how df drove fast. Evidence is to be adduced at trial.

§ To plead evidence instead of facts, it will be become very long and very detail. A pleading is supposed to be a brief and concise statement of fact.

§ There is a fine distinction between fact and evidence. Golden rule is when you are in doubt, just plead it. It is safer to have it pleaded than to not have it pleaded. You won’t suffer any consequences if your pleading contains evidence.

3) Party must plead fact and material fact only

§ Do not plead fact which is not material.

§ Plead facts which are material to establish a cause of action or to establish a defence.

§ Eg: For any case, you must plead fact that there is duty of care, there a breach of duty, fact related to the loss cause of the damage. Material fact which established the COA.

§ Eg: Contract – fact on how contract comes about, the term, the breach of those terms, the loss caused by the breach. These are the material fact to be pleaded.

Held: The statement of claim must plead the necessary facts for the purpose of formulating a complete cause of action. The particulars of claim inform the opposing party of the case it has to meet so that it may prepare for trial and avoid the expense in preparing a case that may never be put.

RULES AT TRIAL FOR PLEADING

1) Party cannot raise a point which is not pleaded

2) Party cannot give evidence during trial on a point that is not pleaded

§ Rationale:

· For point 1) & 2) parties are bound by their pleading as to prevent surprise & to ensure fairness.

3) Judge cannot decide on a point which is not pleaded

§ Rationale:

· Despite the facts that the judge see something relevant within the trial, and such point is not pleaded by any party, he still cannot decides on such point.

FOC: The case is about a negligent act of the df. Df in his pleading does not raise any point relating to the contributory negligent. During trial, while pf was giving out their evidence, it became obvious that pf was at fault for contributory negligent.

Held: Trial judge has decided that even though contributory negligent is not pleaded, it comes from pf’s own evidence, so it can be raise by the df. Pf appealed. Appellate Ct reversed the decision on this point as it is said that the trial judge should not decide on contributory negligent, a point which is not pleaded by any party to the case.

§ EXCEPTION TO RULE 3: ‘Judge still can decide on point which is not pleaded by the party’:

Held: Court can take into account the ‘exfacie illegality’ even though it is not pleaded by the parties. ‘Exfacie illegality’ is illegality that is so clear & apparent. Eg: Enter into a contract to gamble.

FOC: The pf raise the issue of acknowledgement as per S26 of the Limitation Act. This point of acknowledgement is however not pleaded by the party. Df should have raised an objection when pf raised this point up during the trial, but he did not. The point goes on & argues by both of parties & later judge decided on it. On appeal, df then objected to this point on the gorund that it is not pleaded by the pf at the 1^st place.

Held: Privy Council dismissed the appeal as df, in his opportunity to object but did not do so, has actually waived his right to object for such point. If a point is not pleaded but it is raise without any objection of the opponent party, & the point goes on to be fully developed during the trial, then judge can decide on it & opponent cannot later objected such point.

GENERAL MATTERS FOR PLEADING

1) When you plead the pleading, you cannot plead your case without anticipating in advance what the opponent is going to say. In another word, you just focus on your pleading (story version, not the opponent’s).

2) DOCT & CONVERSATION:

§ In pleading the doct, the party only allowed to plead the relevant part of the doct, not the entire part of it,

§ In pleading the conversation, only plead the relevant part of the conversation, not the whole part of the conversation.

SPECIFIC MATTERS FOR PLEADING

1) O18 R8: There are certain matters to be pleaded specifically & it have to be pleaded if the party want to rely on it.

§ Matters: Performance, release, limitation, illegality, fraud & any matter that would take the opponent by surprise.

FURTHER & BETTER PARTICULARS (FBP)

1) 1 party may seek for FBP for pleading from the other party.

2) The situation here is that for eg, SOC is served to the df but very vague (less material details) = less particulars.

3) Here, if the pleading is lack of particulars, the df can apply for FBP for such SOC.

4) FUNCTION OF FBP:

§ To allow the parties to obtain more facts / info to either pursue his claim / defence his claim.

§ To allow a party to ‘tie down his opponent’.

· This is in other words to make sure the opponent party to stick to what he pleads.

· If the pleading is very vague, the opponent can raise anything under the sky.

· FBP will restrict the opponent to be within the points stated in the FBP.

§ To narrow down the issue to be tried.

· This will save time & cost of both of the parties.

PROCEDURE OF FBP

1) The party apply for FBP is not to apply to the court yet. The party seek for FBP is supposed to write to the opponent & enclosed a formal request of FBP in the form of pleading.

FBP:

1. In paragraph 2.3 of the SOC, it is alleged that pf & df has entered into the agreement dated on 2^nd of March 2010.

STATE:

Whether the alleged agreement was done in oral or writing?

3) If the opponent did not answer / give sufficient answer, then the party inquiring the FBP may apply to the court to compel the opponent to give the relevant particulars.

4) The grounds for the party to oppose such application of FBP at court:

i. The facts relating to the evidence / law.

ii. The facts requested are irrelevant / immaterial.

iii. The facts requested are already known to the part who is asking.

iv. The facts requested for are protected by privileged.

5) Here, court will decide whether FBP should be supplied or not.

Ok guys! Next one will be on #howtostrikeoutpleading