How to Cite Case Laws in your Written Submissions – by a Federal Court Judge - Malaysia

With the immense traffic of cases that Courts deal with, plenty of cases, in particular interlocutory applications are disposed-off solely based on the written submissions of parties without any oral hearings.

A litigant cannot possibly emphasize any further on the importance of having a well-drafted and concise Written Submission.

Since the Malaysian Courts adopt the common law doctrine of stare decisis which obligates Courts to follow historical cases and precedence (especially from higher authorities) when making a ruling on a similar case, it is especially pertinent to ensure that case laws are cited in your written submissions.

Is there a guide on how case laws should be cited?

Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd [2020] 4 CLJ 301 (FC)

In her Ladyship’s judgment, Nallini Pathmanathan FCJ occasioned to remind the legal fraternity of the duties and responsibilities of advocates and solicitors to the Court.

“[54] These submissions by the contractor serve as an appropriate occasion for this court to reiterate the oft-ignored principle that advocates and solicitors are officers of the court. Their overriding duty is to the court, not their clients. As such, they are under a duty to provide honest and complete submissions. Integrity is of the utmost importance in advocacy, whether oral or written. [55] It follows sine qua non that suppression, or deliberately presenting a legal position that does not fully disclose the facts or the law, is a grave dereliction of the responsibilities of an advocate and solicitor. They are duty- bound not to suppress facts or law which are either against their client’s case, or does not support it, because of their overriding duty to the court, and ultimately the administration of justice as a whole. [56] On this issue, Raja Azlan Shah Ag LP (as His Royal Highness then was) approved of the following passage in Jaginder Singh & Ors v. The Attorney-General :[2] … The Court can dispense justice only if Counsel will not mislead, otherwise justice will suffer from the infirmity of the Court itself being devoid of justice. People seldom pause to ask sometimes what safety the ordinary individual has in the hands of the lawyers if the Court itself, in which he seeks redress, is no longer safe to be in the same hands.“

(See also the cases cited at paras. 8 – 9 of Lord Clarke of Stone-cum-Ebony’s speech to the Malaysian Judiciary on 14 September 2011 entitled “Ethics and Civil Procedure”, the English cases of Saif Ali v. Sydney Mitchell [1980] AC 198 and Arthur Hall v. Simons [2002] 1 AC 615 at pp. 686 and 692 (particularly the judgments of Lord Hoffman and Lord Hope in the latter case) as well as the Australian case of Giannarelli v. Wraith, Shulkes v. Wraith [1988] 81 ALR 417 at p. 421).

In Paragraph 67, her Ladyship went on further to state:

[67] Reverting to the issue of advocacy, written or oral, it bears reiterating that if a passage in a judgment is sought to be relied upon, it is incumbent upon counsel to set out and explain: (i) how the passage cited is applicable to the matter before the court; (ii) the nature of the case cited; (iii) the facts of the case, particularly whether and how such facts are relevant, similar or distinguishable from the matter before the court; (iv) the context in which the statement relied upon was made; (v) whether the statement amounts to the ratio or is obiter; or (vi) whether the case is being cited for a principle of general application; and (vii) whether the statement comprises an expansion of an existing principle.