You are on page 1of 19

LEGAL DRAFTING

A.
1.

GENERAL
In the event that the parties to a particular matter are unable to come to an agreement as to the settlement of that matter, then the injured party may decide that the only way they can receive some remedy is to institute legal proceedings.

2.

To initiate legal proceedings, the injured partys lawyer would usually first issue a letter of demand and if there is no response to this demand, he will have to file documents into court in order to initiate the legal process. These documents take the following form: a) Pleadings: (i) (ii) (iii) b) writ or summons with a statement of claim; defence; and reply to defence

Cause papers would include all other documents such as notices of application, affidavits, summons in chambers etc which are filed during the course of the legal proceedings.

These documents are of utmost importance as they will set out the story of each party. As such, the contents of these documents must be precise and accurate. 3. The drafting of these documents is known as legal drafting. While one can be taught this skill, real proficiency can only acquired through practice. Further one must have knowledge of the drafting rules as different documents have different requirements. 4. Whether or not one files a writ with a statement of claim or a summons with a statement of claim is dependant on, inter alia, the type of claim (whether contract or accident or family etc) as well as the monetary limit of the claim. This is provided for under the different statutes which govern the various courts.

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

5.

The Magistrates and Sessions Courts are governed by the Subordinate Court Act 1948 and the Subordinate Court Rules 1980. The higher courts (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.

6.

If a claim is within the Magistrates Court or the Session Courts jurisdiction then it will have to be filed via a Summons and a Statement of Claim. If a claim is within the High Courts jurisdiction it will have to be filed via Writ and Statement of Claim. (Note that the High Court also has 2 other modes of originating process which are supported by an affidavit and not a statement of claim).

7.

The monetary limit of the courts are 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.

B.
1.

STATEMENT OF CLAIM

FORMAT

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) and Order 14 of the Subordinate Court Rules 1980. These rules provide for a standard format in relation to different statements of claim.

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

2.

The general format of a statement of claim is as follows:

IN THE .. AT.. IN THE STATE OF ., MALAYSIA No. BETWEEN ........................................... AND ... STATEMENT OF CLAIM DEFENDANT PLAINTIFF

[BODY OF THE STATEMENT OF CLAIM]

[PRAYERS] [DATE] [SIGNATURE OF THE PLAINTIFFS LAWYER] [ENDORSEMENT] 3. HEADINGS: 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.
Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

IN THE .. AT.. (1) IN THE STATE OF ., MALAYSIA (2) NoOF..(3) BETWEEN ...........................................(4) AND ...(5) STATEMENT OF CLAIM (6) 1. 2. 3.1 (1) This refers to the information of which court and where the claim is being filed: (i) (ii) (iii) the court is dependant the monetary limit of the claim; and the place is dependant on, amongst others, where the defendant resides, where the cause of action arose, where the facts which led to the cause of action occurred. as such a claim could be filed in the High Court of Malaya at Kuala Lumpur or in the Sessions or Magistrates Court in Kuala Lumpur. 3.2 (2) This refers to the state where the particular court is located. 3.3 (3) This refers to the summons or writ number as each case which is filed in court will be given a particular number for administrative purposes. E.g.: Summons No.: 52-281 OF 2008 Writ No. 22-456 OF 2008
Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

PLAINTIFF DEFENDANT

. (7) . (8)

3.4

(4) This refers to the full name of the plaintiff together with the plaintiffs identity card number. If the plaintiff is a company then the companys full name and company number have to be stated. E.g.: Simon Lee Weng Kwong (I/C. No.___________) Primax Sdn. Bhd. (Company No.:________________)

3.5

(5) This refers to the full name of the defendant together with the defendants identity card number. If the defendant is a company then the companys full name and company number have to be stated.

3.6

(6) This is the heading which identifies the type of pleading that is being filed.

3.7

(7) The first paragraph of a statement of claim always gives the following details of the plaintiff:
(i) (ii)

whether or not the plaintiff is an individual or a company; details of the plaintiffs address (home or registered address or business address or last known address). if the plaintiff is a company then the general trade of the company should also be stated. note that throughout the statement of claim, the individual or the company who is the plaintiff should be referred to as the Plaintiff and NOT by name.

(iii)

(iv)

Eg:

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

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. 3.8 (8) The second paragraph of a statement of claim always gives the following details of the defendant:
(i) (ii)

whether or not the defendant is an individual or a company; details of the defendants address (home or registered address or business address or last known address). if the defendant is a company then the general trade of the company should also be stated. 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.

(iii)

(iv)

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. 4. BODY OF THE STATEMENT OF CLAIM The body of the statement of claim depends on the type of the claim being filed by the plaintiff and will set out the plaintiffs 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.

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

5.

PRAYER The Prayer refers to the part of the statement of wherein the plaintiff sets out the details of the plaintiffs 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).

6.

DATE & SIGNATURE OF PLAINTIFFS LAWYER Every statement of claim must be dated and signed by the plaintiffs solicitor in the name of the solicitors 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.

7.

ENDORSEMENT 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.

C.
1.1

CONTRACTUAL CLAIMS
Contractual claims are those which arise out of a breach of contract and would involve the plaintiff seeking damages or specific performance in relation to the said breach. As such, the following details of the contract should be stated: a) b) c) d) e) the date, parties to the contract and a summary of what the contract provides for; the relevant terms of the contract; what and when the breach occurred; the loss which the plaintiff had suffered; what the plaintiff claims now.

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

1.2

Eg.:

Jensen Sdn. Bhd. (hereinafter referred to as Jensen) was at the material times a company carrying on retail business and Sunshine Bhd. (hereinafter referred to as Sunshine) was a company in the agriculture business. In Kuala Lumpur, on 1.1.2006, Jensen and Sunshine entered into a written contract (hereinafter referred to as the said Contract) where Sunshine had agreed to supply Jensen with fresh vegetables in accordance to the terms of the said Contract for the sum of RM20,000.00 per month commencing from 1.2.2006. It was expressly provided in Clause 5 of the said Contract that the vegetables had to be provided by 5am each morning and had to be fresh and without any defects. Pursuant to this Clause, Sunshine began supplying Jensen with fresh vegetables on 1.2.2006. However, in June, July and August of 2006, Sunshine had failed to supply the vegetables to Jensen by 5am and had instead only supplied the vegetables at 8am. This had meant that the workers at Jensen had been unable to properly examine the vegetables and to packages the vegetables on time which in turn meant that the vegetables could not be displayed for sale until much later in the day. As a result of this breach, Jensen has terminated the said Contract. Due to Sunshines breach, Jensen suffered the following losses: Loss of profit from the sale of the vegetables for the months of June, July and August of RM75,000.00, loss of profits from vegetables that had been returned by purchasers in June, July and August of RM15,000.00, medical bills of customers who had claimed illness as a result of spoilt vegetables in June, July and August of RM10,000.00 and advertising costs to preserve goodwill of RM20,000.00. You are required to draft the Statement of Claim for Jensen in respect of its claims from Sunshine arising from the breach of contract. IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA (2) SUMMONS NoOF 2008

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

BETWEEN JENSEN SDN. BHD. AND SUNSHINE BHD. STATEMENT OF CLAIM 1. The Plaintiff is a company incorporated in Malaysia and carrying out a retail business at . 2. The Defendant is a company incorporated in Malaysia and carrying out an agriculture business at . 3. By a written contract dated 1.1.2006 entered into by the Plaintiff and the Defendant (hereinafter referred to as the said Contract), the Defendant had agreed to supply and the Plaintiff had agreed to receive the supply of fresh vegetables (hereinafter referred to as the said Goods) subject to the terms and conditions contained in the said Contract. 4. By the terms of the said Contract, the Plaintiff and the Defendant had agreed, inter alia, under Clause 5 of the said Contract that the said Goods were to be provided to the Plaintiff by 5am each morning and had to be fresh and without any defects. 5. Pursuant to the terms of the said Contract, the Defendant had begun supplying the Plaintiff with the said Goods on 1.2.2006. 6. However, in breach of the said Contract, in June, July and August of 2006, the Defendant had failed to supply the said Goods to the Plaintiff by 5am and had instead only supplied the said Goods at 8am (hereinafter referred to as the said Breach). 7. Consequently, the Plaintiffs workers were unable to properly examine the said Goods DEFENDANT PLAINTIFF

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

and to package the said Goods on time which in turn meant that the said Goods could not be displayed for sale until much later in the day. 8. As a result of the said Breach, the Plaintiff has suffered the following losses: a) b) c) d) Loss of profit from the sale of the vegetables for the months of June, July and August of RM75,000.00; Loss of profits from vegetables that had been returned by purchasers in June, July and August of RM15,000.00; Medical bills of customers who had claimed illness as a result of spoilt vegetables in June, July and August of RM10,000.00; and Advertising costs to preserve goodwill of RM20,000.00. The losses amount to RM120,000.00 (hereinafter referred to as the said Losses). 9. The Plaintiff has since terminated the said Contract and has issued a letter of demand dated ________ to the Defendant demanding that the Defendant make payment of the said Losses to the Plaintiff but the Defendant has failed, neglected and/or refused to make payment of the said Losses or any part of the said Losses to the Plaintiff. Wherefore the Plaintiff claims: a) b) c) d) the amount of RM120,000.00; interest at the rate of 8% per annum on RM120,000.00 from the date of judgment to the date of full payment; costs; and such further and other relief as this Honourable Court deems fit. Dated this day of 2008. Solicitors for the Plaintiff
Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

This Statement of Claim is filed for and on behalf of the Plaintiff by Messrs. ___________, solicitors for the Plaintiff whose address for service is at ____________________. Note that the details in italics are of utmost importance. 2. Paragraph 3 a) b) c) d) e) 3. This paragraph provides the details of the contract. One needs to specify whether or not it is a written contract. The date of the contract is to be written in numerals. Using the words hereinafter referred to as . allows to refer to an item/event in short. The basic gist of the contract is to be stated in this paragraph.

Paragraph 4 a) b) This is the paragraph to state the salient terms of the contract and it is important to identify the particular clause in the contract which provides for these terms. One will also need to state the gist of what the particular term provides for. In the event that there are numerous terms then the same can be stated as: a). b)

4.

Paragraph 5 This paragraph provides details of when the parties had begun to fulfill their duties under the terms of the contract. It is important as it shows that the contract had been effective at a particular time.

5.

Paragraph 6 This paragraph gives details of when the breach occurred, the circumstances of the breach and importantly that it was the defendant who had breached the contract. This is

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

important as it is from this information that the plaintiff can trace their claim against the defendant. 6. Paragraph 7 This paragraph sets out details of the result of the defendants breach and how it had affected the plaintiff and is important because it is linked to the plaintiffs losses and claims for those losses. 7. Paragraph 8 This paragraphs sets out the details and amount of losses which the plaintiff has suffered. 8. Paragraph 9 a) This will give details of whether or not the plaintiff has terminated the contract as well as details of the letter of demand which the plaintiffs lawyer has issued to the defendant. Although there may be nothing in the contract which requires the issuance of a letter of demand, it is usually good practice to issue one as the failure to fulfill the terms of the letter of demand could mark the date the breach of contract occurred. b) The final statement in this paragraph is important as it shows that the defendant had failed to make payment and/or reparation to the plaintiff of the amounts owed.

9.

The prayer
a) The prayer is a statement of the plaintiffs claim and is connoted by the words Wherefore the Plaintiff claims. Everything which the plaintiff seeks from the court must be stated in the prayer as shown above. b) Prayer (b) contains details of what is known as judgment interest which is interest on the amount due which can be claimed by the plaintiff in accordance with the law and it is currently at the rate of 8% per annum from the date that judgment is obtained by the plaintiff against the defendant to the date that the defendant makes full payment of the amount due together with interest thereon.

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

c)

It is also good practice to add as a final prayer such further and other relief as this Honourable Court deems fit as this would allow the court to grant any order which the court feels is necessary even if it has not been specifically prayed for by the plaintiff i.e. it is a catch-all prayer.

D.
1.1

TORTIOUS CLAIMS
Tortious claims are usually those which arise as a result of a civil wrong and can cover, inter alia, defamation, negligence, nuisance and trespass to person. However, the most common form of a tortious claim is for damages which arise as a result of an accident and the contents of the statement of claim to be filed would depend on whether the accident was fatal or whether the plaintiff has merely suffered injury. We shall be focusing on non-fatal accidents.

1.2

The following details would have to be included in the statement of claim: a) b) c) d) the parties; the date, time, place and circumstances in which the accident occurred; the injuries which were sustained by the plaintiff; what the plaintiff claims now.

1.3

E.g. On February 10, 2007, at about 10pm, Albert Lam was riding his motorcycle registration no: KAD 579, along Jalan Tun Perak, Kuala Lumpur heading towards Menara Maybank. At this moment, a van registration no. BJD 246 being driven by Tony Janz pulled out Jalan Raja Chulan and collided with Albert Lams motorcycle. Tony Janz was under the influence of alcohol at the time of the accident. As a result of the accident, Albert Lam suffered injuries to his head, eye, neck and was in a state of shock. The head injuries had resulted in him losing concentration and the ability to work normal hours. He also sustained lacerations to the face and left hand and fractured the right tibia and fibula.

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

Albert Lam was working as a life guard at a private club and has now lost his job. Albert Lam is at a disadvantage on the labour market. You are required to draft the Statement of Claim for Albert Lam in respect of his claims from Tony Janz. IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA SUMMONS NoOF2008 BETWEEN ALBERT LAM (I.C. No.:..) AND TONY JANZ (I.C.No.:..) STATEMENT OF CLAIM 1. The Plaintiff is an individual residing at ... and at the material time was the owner of a motorcycle registration no: KAD 579 (hereinafter referred to as the said Motorcycle) and was the rider of the said Motorcycle. 2. The Defendant is an individual residing at and at the material time was the owner of a van registration no. BJD 246 (hereinafter referred to as the said Van) and was the driver of the said Van. 3. On 10.2.2007, at about 10pm, the Plaintiff was riding the said Motorcycle along Jalan Tun Perak, Kuala Lumpur heading towards Menara Maybank. At this moment, the said Van being driven by the Defendant pulled out Jalan Raja Chulan and collided with the Plaintiff and the said Motorcycle (hereinafter referred to as the said Accident). At the material time, the Defendant was under the influence of alcohol.
Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

PLAINTIFF

DEFENDANT

4.

As a result of the said Accident, the Plaintiff has suffered severe injury which caused loss and damages.

5.

The said Accident was caused fully or substantially by the Defendants negligence while driving the said Van. Details of the Defendants negligence are as follows:

DETAILS OF THE DEFENDANTS NEGLIGENCE WHILE DRIVING THE SAID VAN (a) (b) (c) (d) (e) Failing to take care and observe the other road users; Failing to take due care when coming out from a corner; Driving under the influence of alcohol; Creating a dangerous situation for the Plaintiff; Failing to follow the road traffic rules.

The Plaintiff will rely on the maxim of MAXIM RES IPSA LOQUITUR where applicable. 6. As a result of the said Accident, the Plaintiff has sustained injury and loss and has incurred costs from the above stated events: DETAILS OF THE PLAINTIFFS INJURIES (a) (b) (c) (d) (e) injuries to the Plaintiffs head, eye and neck; shock; lost of concentration and the ability to work normal hours; lacerations to the face and left hand; fractured the right tibia and fibula.

A copy of the Medical Report and the Expert Medical Report will be issued to the Defendant in due course and will be adduced at trial.
Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

DETAILS OF SPECIAL DAMAGES (a) (b) damage to the Plaintiffs clothes and personal effects: medical costs at ___________ RM.. RM (to be assessed at trial) (c) (d) (e) costs for medical report at ______________ costs of expert medical report costs of medication from pharmacy from the date of the said Accident to the date of trial RM (to be assessed at trial) (f) costs of medication from pharmacy from the date of the trial onwards RM (to be assessed at trial) (g) (h)
(i)

RM RM

costs of JPJ report costs of police report costs of repair of the said Motorcycle loss of earnings of RM________ per month from the date of the said Accident to _____

RM 20.00 RM 10.00 RM RM (to be assessed at trial)

(j)

(k)

other expenses

RM

Wherefore the Plaintiff claims: (a) (b) (c) General damages; Interest on the General Damages at the rate of 8% per annum from the date of the service of the summons to the date of judgment; Special damages;

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

(d) (e) (f)

Interest on the Special Damages at the rate of 4% per annum from the date of the said Accident to the date of judgment; costs; and such further and other relief as this Honourable Court deems fit. Dated this day of 2008.

Solicitors for the Plaintiff

This Statement of Claim is filed for and on behalf of the Plaintiff by Messrs. ___________, solicitors for the Plaintiff whose address for service is at ____________________. Note that the details in italics are of utmost importance. 2. Paragraphs 1 & 2 The same principles in relation to the details of the plaintiff and the defendant as with contractual claims are applicable here. The only difference is that it must be clearly stated that the vehicle involved in the accident belong to the individual parties and that they were under the being driven and/or ridden by the plaintiff and/or the defendant. 3. Paragraph 3 This paragraph sets out the details of the accident and must include the following: a)
b)

the date, time and place where the accident occurred; how the accident occurred i.e. where the vehicles were coming from, whether there were traffic lights, whether there was a corner or a blindspot, etc; if the plaintiff was a pedestrian then this must be mentioned as well as whether the plaintiff was by the side of the road or crossing the road.

c)

4.

Paragraph 4

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

This paragraph is important and should be drafted exactly as stated above as it shows that whatever loss and damage incurred by the plaintiff was a result of the accident and not by the plaintiffs own actions. 5. Paragraph 5 a) This paragraph is of utmost importance and should be drafted exactly as stated above. The details of the defendants negligence could include the following: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) b) failing to stop at traffic lights; failure of following the speed limit; failing to keep a or any proper lookout; driving above the speed limit; driving under the influence of alcohol; failing to indicate when turning a corner; failing to keep a proper lookout when turning at a junction; driving in a reckless and/or negligent manner; failing to concentrate on the road; using ones handphone while driving.

The maxim of res ipsa loquitor can be relied on by the plaintiff as it essentially means that the thing speaks for itself in that the details of the negligence clearly show that the defendants negligence had caused the accident.

6.

Paragraph 6 a) This paragraph is of utmost importance as it sets out the injuries and losses sustained by the plaintiff and the first sentence and the headings should be drafted exactly as stated above. b) For the plaintiffs injuries, this refers to bodily injury suffered by the plaintiff: (i) (ii) the same should be listed in accordance with the different parts of the body i.e. head injuries, injuries to the limbs, injuries to the torso etc; the statement that the medical report will be produced at trial is also important as this will form the evidence of the plaintiffs injuries which would have healed by the time the trial proceeds.

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008

c)

For the plaintiffs losses, this refers to monetary loss suffered by the plaintiff and can be divided into general damages and special damages: (i) general damages would cover any damage or loss suffered which cannot be quantified and will normally be assessed by the court. As such, a statement of the same does not need to made. (ii) special damages are damages which can be quantified and this needs to be listed out. (the question will normally give details of the same).

7.

Prayer As with the prayer for contractual claims, this will set out the plaintiffs claim inclusive of interest. Note that interest on general and special damages differ.

Copyright of KATHLEEN MARIE NUNIS on behalf of HELP University College Version June 2008