See You In Court! Or… Will I? - Nadzarin Kuok Puthucheary & Tan ("NKPT")

Afiq Iskandar Aziz

Legal Associate
Kuala Lumpur

“I’ll see you in Court!”

Sounds dramatic indeed. But taking someone to court is not as simple as ABC. Not all disputes can be litigated or are worth litigating over. This is why engaging an honest and competent lawyer for sound advice is paramount.

Generally speaking, there are several preliminary matters you ought to consider before filing civil action in court.

First, you will need to determine who can be made PARTIES to the civil action i.e. who can sue (plaintiff) and who can be sued (defendant). The plaintiff is a person/ legal entity who has suffered some loss/ damage/ injury and wishes to make a claim against the defendant, who is a person/ legal entity responsible for the plaintiff’s loss/ damage/ injury.

Second, there must be a CAUSE OF ACTION i.e. a set of facts recognized in law as giving rise to an enforceable claim. Ask yourself – what are the facts and reasons for which you intend to sue? Then ask your lawyer if those facts and reasons are sufficient to sustain an enforceable claim against the defendant.

Third, you will need to have LOCUS STANDI – a Latin phrase which means “a place to stand”. In the case of Atip bin Ali v Josephine Doris Nunis & Anor [1987] 1 MLJ 82, the plaintiff sought to sue the defendant for allegedly defaming all male members of the UMNO (Alai branch) political party that the plaintiff was a member of. The Court held that the plaintiff had no locus standi to bring a defamation action on behalf of the political party.

Fourth, you must file your civil action within a specific timeframe, also known as the LIMITATION PERIOD. This is to avoid parties from sleeping on their rights. As a general rule, section 6(1) of the Limitation Act 1953 provides that an action for a breach of contract or negligence must be filed within 6 years from when the breach/ negligence occurred.

Finally, consider the REMEDIES you want. These are compensations awarded by the court for the losses/ damage/ injury suffered by you. Apart from monetary compensations, there are other remedies such as declarations and injunctions. Talk to your lawyer so that the most suitable remedies are sought for in your civil action.

So, next time you feel the urge to declare your intention to sue someone, take a step back, consider all of the above, and then decide if you still want to slug it out in court. This is not about Suits, this is about what suits you best.

About the Author

Afiq Iskandar is a Legal Associate of the firm. He graduated from MARA University of Technology, Malaysia. Afiq has multiple interests in life beyond reading law viz. sports, film, music and poetry. He believes that art, in whatever form they may be, is a necessity of life.