(or ‘Advice to Juniors-Part 4’)

DRAFTING INTERLOCUTORY APPLICATIONS

[Tip-1]:  Get the Form of the Application right

The form of the application is incredibly important – do some research on it.

This is the procedural part.  It is easy.

Procedural points are scattered in the Rules of Court, or in the Forms at the rear.

If you cannot find them in the rules, you will discover them in Atkin’s Forms, or Halsbury’s Laws of England. 

Pleaders who fail here will stare at a preliminary objection when the matters comes up for hearing.  So get your procedure right.

[Tip-2]:  Get your ‘prayers’ right

This is not an invitation to beg for mercy at some place of worship.

‘Prayer’ means ‘relief’.  There are fixed ways of asking for a legal relief.  For that, again, you have to hit the books on procedure.

You might apply for an injunction: are the terms of your injunction sufficiently tight, narrow and aimed at the right people?

Courts do not like flabbily-worded injunctive relief.

Have you inserted at the foot of the draft order, a penal notice in the right words?

Get your procedure right.

[Tip-3]:  Do you have your Legal Elements right?

Check the law.

Examine what elements you need to plead – to get the relief you desire — or defeat an opponent who wants it.

If you are not sure about this, do not start drafting the affidavit.  Get it right.

Being familiar with the Legal Elements is like knowing your map before you commence your journey.

Are you headed in the right direction? Get that right.

DRAFTING AFFIDAVITS

[Tip-4]:  To draft affidavits in support, do some research first

Find out exactly what you need [evidence, facts, a hypothesis or a story]  to prove to the court, and what allegations you need to ‘traverse’ to get the relief your client wants.

Therefore, you need to write notes on what allegations you need to have in your affidavit, and which allegations that you need to deny (or ‘traverse’ as it is called).

[Tip-5]:  Understand the difference between an Attacking Affidavit & a Defensive one

An ‘Attacking Affidavit’ is one you have to oppose.  That is where the opposing client is making allegations.

The ‘Defending Affidavit’ is one where you destroy or parry the opposing client’s statements.

It does not matter whether you are the plaintiff’s or defendant’s counsel.

You will meet these affidavits all the time.

[Tip-6]:  Affidavits in opposition – make the ‘Opening General Traverse’

The most useful way of replying to an affidavit is to make a statement right at the beginning that you deny everything that has been stated in the affidavit you are applying to unless specifically admitted, “as if set forth one at a time and denied”.

[Tip-7]:  To challenge an Attacking Affidavit, identify its Lines of attack

Make a list of the primary allegations made by the other side.  Attack each of these headings.  Explain why they are wrong.

Use headers if you can.  It makes it easier for the judge to read your affidavit.

Do not just deny an allegation paragraph by paragraph.

That is boring.  The judge will be forced to examine both the Attacking Affidavit and your Defending Affidavit, where your client is challenging the allegations.  The judge does not have the time.

Do not say,

“The contents of paragraph 17 of Mr.Tan’s affidavit are denied, and he is put to strict proof thereof.  What in fact happened was, blah, blah, blah.”

Make the judge’s life easy.

Get to the point, and quickly.  Say,

“Mr, Tan makes five allegations in his affidavit dated 15.07.2017:

“(1).      That, allegedly, Mr. Lee lied in a letter dated 12.01.2014; ”

“(2).      That, allegedly, Mr. Tan was compelled to give up management control;” and

“(3).      That, allegedly, Mr. Tan did not steal the company’s assets.”

The word, ‘allegedly,’ red-flags the allegation.  It informs a casual reader that your opponent’s allegation may not be true.  It raises suspicions.

So summarise the Attacking Affidavit’s allegations in one line for every point.

[Tip-8]:  Then answer each Line of attack

Go forward and prove the reader right.

Label the point by bold letters, like this:

“Answer to Point-1: Mr.  Tan did not lie

[17].      In his letter dated 12.01.2014 Mr.  Lee did not lie.  In fact, in Mr.  Tan’s reply dated 15.02.2014, he agrees with what Mr.  Lee said and apologises.  That document is produced here and marked as ‘Exhibit L-2’.”

Compare that with your earlier reply.

Which sounds better, more lucid?

This approach will be particularly useful when you are drafting your submissions because you can see how your opponents have raised issues and how you had challenged them earlier.

[Tip-9]:  List the Attacking Affidavits Exhibits – then tear them to shreds

Make a second list of the exhibits that have been shown in the affidavit you are opposing.

Like we did at Tips 12 and 13.

Attack all the exhibits, one at a time.

Show your own exhibits.

Challenge them with your own documents — if you can, or explain why they are irrelevant.

[Tip-10]:   Do not use legal words, or high flown language

Do not use legal or high-flown phrases in the affidavit.

Use non-legal words.  And please use simple words.

Short sentences (less than 10 words) are best.

A reader will get through short sentences far quicker: (commas slow down reading?)

Deponents of affidavits are simpletons.

They use plain English (or Bahasa Malaysia).  They understand plain language.

So, use plain language.  Use your client’s very words. Why make  your life – and  that of the judge – difficult?

If your opponent cross-examines your client on his affidavit, counsel will look out for complex, or legal words.

When he asked about these, the witness – your client – will point a finger at you. He will admit that these words were not his, but it was all “done by my lawyers”.

Stick to the deponent’s words.

When the deponent’s own words are challenged, he will defend them vigorously.

Do not say,

“Mr.  Tan has misconceived the idea’. 

Say,

“Mr.  Tan is not right”. 

[Tip-11]:  Throw in a further ‘Closing General Traverse’ at the end

At the very end of the affidavit use these words:

“For the avoidance of doubt, unless otherwise specifically admitted, any allegations not addressed or answered in this affidavit are expressly denied”.

In this way, you will not be sunk by the rule in Ng Hee Thoong No.2¹Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 MLJ 28 – that if you do not reply to an allegation in an affidavit, you are deemed to have accepted the truth of it.

[The author expresses his gratitude to Ms KN Geetha, Mr. JP Kirat Singh, Mr. GS Saran, and Miss KP Kasturi]