Have you ever experienced someone infringing upon your property or breaching an agreement you both made? If they still refuse to cooperate after your persistent demands, you can take civil action against them. This is known as civil litigation.
Civil litigation is one of the primary methods for resolving disputes. You need to bring your civil dispute to a court to determine legal issues, establish liability, or obtain relief. Civil disputes refer to conflicts arising from private relationships or interpersonal interactions, such as business or marital relationships. These disputes can also arise from transactions, such as breaches of contract and agreements.
The procedure by which courts hear these cases is called civil procedure. The laws applicable to this procedure depend on the jurisdiction and the prevailing legal system.
Due to Malaysia's colonial history with the United Kingdom, the Malaysian legal system is heavily influenced by prevailing English laws. However, Malaysia has also enacted local laws and rules to regulate civil procedure within the country. These include:
The Federal Constitution of Malaysia
The Subordinate Courts Act
The Civil Law Act 1956: This act provides that Malaysian courts may apply English Common Law and Rules of Equity.
These laws apply throughout the Federation of Malaysia. In addition to these, there are applicable state laws and a body of Islamic (Syariah) law. However, Islamic law is largely administered by individual states. In Malaysia, the area of civil law that falls under Islamic jurisdiction is personal law. This includes matters related to marriage (also known as matrimonial proceedings), heirs, and property inheritance, but only for those who choose to be, or are inherently, governed by this law.
Courts are the arbiters of justice; your rights, obligations, and liabilities are determined by one or more judges. We can broadly divide Malaysian courts into civil courts and criminal courts. The nature of the court depends on the types of cases it can hear. A frequently used buzzword when discussing courts is "jurisdiction," which refers to a court's power to hear and decide upon legal issues brought before it.
The courts operate within a hierarchy, ranked in ascending order of authority as follows:
Subordinate Courts: These include the Magistrates' Court and the Sessions Court. Their jurisdiction over civil disputes is limited by the monetary amount involved. The monetary limit for the Magistrates' Court is RM100,000, while the limit for the Sessions Court is RM1,000,000.
High Court: Malaysia has two High Courts—the High Court in Malaya and the High Court in Sabah and Sarawak, which have jurisdiction over Peninsular Malaysia and East Malaysia, respectively. Unlike the Subordinate Courts, the High Court's jurisdiction has no monetary limit.
Court of Appeal: If you are dissatisfied with a judgment from the High Court, you can appeal to the Court of Appeal. As the name suggests, the Court of Appeal only hears appellate cases and does not handle first-instance trials.
Federal Court of Malaysia: This is the highest court in Malaysia. It has the authority to decide whether to hear civil appeals following an application for leave (permission) to appeal.
In addition to these listed courts, depending on the state and the subject matter, the Syariah Courts also have jurisdiction over certain civil affairs. As previously mentioned, their jurisdiction concerns Islamic personal law. Therefore, while a Syariah Court can hear cases related to heirs, property inheritance, and marriage, it cannot hear commercial disputes.
The civil litigation process involves the following steps:
Consulting a Lawyer: Do you need to make a civil claim against someone? Consulting a lawyer is your first step toward obtaining a fair ruling or exercising your rights. This isn't to say you cannot represent yourself, but the advice and representation of a civil litigation lawyer will yield much better results.
Drafting and Serving a Letter of Demand: A Letter of Demand is a formal request, typically issued by a lawyer to the recipient as required by the case. This is often the final opportunity for pre-trial negotiations and private dispute resolution.
Filing a Civil Suit and Discovery: The civil litigation process officially begins when your lawyer files the court documents. "Discovery" refers to the stage where your lawyer and the opposing party's lawyer exchange necessary documents.
Trial and Submitting Motions: This is the stage where the judge hears the case, summons and cross-examines witnesses, evidence is presented, and the court delivers its judgment. During the trial, motions can be filed requesting the court to issue specific orders. The judgment marks the conclusion of this process.
Appeal: If you are unsuccessful at trial, or if there are other grounds to challenge the judgment, your lawyer can assist you in filing an appeal.
Common civil suits in Malaysia include:
Breach of Contract: A contract is a legally enforceable agreement made between parties. Sometimes, parties to the agreement may fail to fulfill their obligations under it. When this happens, we can file a civil suit for breach of contract on your behalf to enforce the agreement. Sometimes, you may dispute the existence or validity of a contract. In such cases, you can contact a contract lawyer in Malaysia for advice and an explanation of your available options.
Tenancy Disputes: As a landlord or tenant, you possess certain rights and obligations that can be enforced through litigation. As a landlord, you can sue a tenant for unpaid rent; as a tenant, you can sue your landlord for trespass. The most common tenancy issues include unlawful eviction, recovery of rent arrears, determining the terms of a tenancy agreement, or either party breaching their obligations. These fall under civil litigation, and a tenancy lawyer can file a suit on your behalf. These cases are usually brought to the Sessions Court.
Tort: A tort can be simply defined as a civil wrong. The scope of torts is broad and includes negligence, defamation, trespass, passing off, and nervous shock. Personal injury lawyers in Malaysia assist those who have been injured due to the wrongful acts of others.
Negligence: Negligence is a tort arising from a breach of the duty of care. While it falls under tort law, it encompasses a wide range of wrongful acts. To prove negligence in court, you must demonstrate that the defendant owed you a duty of care, breached that duty, and that this breach caused you injury or damage. The burden of proof lies with the person claiming the negligence occurred. The scope of actionable negligence is vast, and you can potentially claim millions in compensation if successfully proven.
Property Disputes: Property transactions are incredibly diverse, ranging from mortgages to leases. With these transactions comes the potential for disputes regarding their existence or execution. The parties involved also have corresponding rights and obligations. If you feel your rights in a transaction have been violated, you can apply to the court to claim compensation through your Malaysian real estate lawyer.
Matrimonial Disputes: Matrimonial disputes involving divorce, conjugal rights, division of marital assets, child custody, etc., are civil matters that can be resolved through civil litigation.
Arbitration-Related Claims: Arbitration is an alternative dispute resolution mechanism where parties resolve their disputes through an arbitrator. This mechanism is rapidly gaining popularity in Malaysia. Generally, arbitration operates differently from court proceedings. However, civil claims can sometimes arise concerning the validity of an arbitration agreement or the arbitration process itself. This is a civil issue resolvable through litigation.
Remedies in Corporate Law: In practice, companies may need to sue or file petitions in court. This might be to seek remedies such as a derivative action by shareholders, injunctions, and so forth. These are all civil matters addressable through civil litigation.
If you are seeking relief or looking to enforce your rights through civil litigation, it is highly recommended to engage a competent lawyer. This is because a lawyer can advise you on the strengths and weaknesses of your case. Sometimes, going to court may not be the most appropriate option for you, as it is both time-consuming and expensive.
The civil litigation lawyers at Alan Kang & Co can provide you with the best and most cost-effective strategies for pursuing your claim. If you require assistance, please call us to arrange a consultation to discuss the specifics of your case.
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