A Klang Valley Lawyer Outside the Klang Valley
I was a member of the Kuala Lumpur Bar from 1999 until 2008 when my father decided to move the firm from Bukit Damansara to Mutiara Damansara. Since mid-2008 I have been a member of the Selangor Bar. Regardless where my office was or is located, my practice has primarily been based out of the Kuala Lumpur, Selangor (even then mostly Shah Alam and previously Ampang) and Putrajaya courts. I think of these areas collectively as the ‘Klang Valley’ (the KayVee) and so naturally, I think of myself as a KayVee Lawyer instead of a Kuala Lumpur or Selangor one. Of course, I conducted cases in other states. As a litigator, that is unavoidable. To date, I have conducted cases in all the Malayan Peninsular states except Terengganu. Why not? I just never had to sue or defend anybody there. Much of my travelling was during the first half of my practice. I travel much less these last few years because most of our cases and work are KayVee-valley-centric. In my experience, there is a general difference between a KayVee lawyer and a non-Kayvee lawyer, and that same difference applies to KayVee courts and non-KayVee courts. That difference lies in their strictness of approach to compliance with the procedural rules (previously contained in the Rules of High Court 1980 and the Subordinate Court Rules 1980 which were then replaced with the Rules of Court 2012). There are generally two positions with regard to compliance with the Rules: there is the mindless approach and there is the mindful approach. Those that adopt a mindless approach often rely on the following Malaysian classic case and dicta in respect of non-compliance with the Rules. The Rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation. Privy Council decision of Ratnam v Cumarasamy & Anor [1964] All ER 935 The courts that adopt the pedantic approach often rely on that starting phase in the passage to justify their decision to strike out something (an affidavit, an application, an appeal, etc.) for breaching the Rules even though the other litigant(s) suffered no prejudice as a result of that breach, and that breach has nothing to do with the merits of the case. It is non-compliance with the Rules that harms or prejudices no one. And yet, the court that takes this approach often takes a wildly disproportionate response to the breach by rejecting it instead of having the offender pay cost and move on from the infringement so the matter can be heard on its merits. Some call this the ‘strict approach’, I call this the mindless approach because no thought is given to the justice of the case or the justice between the parties. The mindful approach is typified by Order 1A of the Rules of Court 2012. In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. Order 1A of the Rules of Court 2012. An articulation of what that means was described by Gopal Sri Ram JCA: Lastly, there is the question of the modern approach to the breach of procedural provisions by a litigant. It is to be emphasised that the courts are concerned with the dispensation of both procedural and substantive justice according to the merits of a given case. So, when a party to litigation complains of breach of a procedural provision by his opponent, the primary question is not whether the particular provision is to be regarded as mandatory or directory according to the terms of the language in which it is couched. The correct question that the judicial arbiter should ask himself is this: What injustice has the party complaining suffered by reason of the procedural breach? It is the answer to this Question that will ultimately determine whether the court should uphold or reject a procedural complaint. Chong Keat Realty Sdn Bhd v Ban Hin Lee Bank Bhd [2003] 3 CLJ 532 So unless the non-infringing party can demonstrate how he or his case was prejudiced by the infringement, the court should not entertain the objection or dismiss it. Or punish the infringing party with costs. Some call this the ‘lenient’ approach. I call it the mindful approach because the court must be mindful of the justice of the case and whether actual (and not imagined) prejudice has occurred before deciding the objection. Those from the KayVee are likelier to be of the mindless variety. A Kayvee lawyer often would make a big deal about procedural non-compliances where no one suffered prejudice and demand the infringing party be punished with something struck out or the infringing party barred from doing something. A Kayvee court is likelier to strike something out for non-compliance with the Rules. Those outside the Kayvee however are likelier to be of the mindful variety. They are less likely to demand something be struck out for mere non-compliance with the Rules. A non-Kayvee lawyer is likelier not to raise silly technical objections in a legal proceeding. A non-Kayvee court is likelier to give the breaching party further opportunity to comply with the Rules. That is one general distinction I discern between Kayvee and non-Kayvee lawyers and courts. That was brought home to me when I acted for a Defendant in a matter in the Ipoh High Court early in my practice. My client was sued for a breach of contract there because both it and the Plaintiff were based in Perak. The Plaintiff’s lawyer, an Ipoh-based one-man firm, was lackadaisical about preparing the case for
