I have seen brilliant questions being turned away at the Federal Court. And some questionable ones being allowed.

Leave Applications rarely succeed – Is there a method to this madness?

Nothing terrifies a senior lawyer like an Application for Leave to Appeal to the Federal Court.

Of the 1000 Leave Applications filed before the FC, usually 100 survive. Nine hundred fail. The ratio is one to ten.

The applications are lost even before the hearing day.

I think this is because of bad technique.

Technique is as important – if not more important – than other skills.

Technique is a transferable skill.

That is the purpose of this article.

Basic Law

Take trouble to understand the basics. Under s.96(a) of the Courts of Judicature Act 1964, an appeal lies from the Court of Appeal to the Federal Court. It is not automatic. It can only be accessed ‘with the leave’ (‘permission’) of the Federal Court.

Satisfy the FC that your application falls within one of the two limbs:-

(1).      that it ‘involves’ a question of ‘general principle’ decided ‘for the first time’ – (the First Limb), and

(2).      that it is ‘a question of importance’ upon which ‘further argument’ and ‘decision of the Federal Court’ would be ‘to public advantage’ – (the Second Limb).

ARE THERE SPECIAL TECHNIQUES TO DRAFTING LEAVE QUESTIONS?

Yes.

Here are some essential pointers.

Tip-1 – Understand the nuances of two Federal Cases – inside out

There are two FC cases that are more important than you think they are. If you have read them once that is not good enough. Read them again.

The first is Terengganu Forest Products Sdn Bhd v COSCO Container Lines [1].  

The second is Datuk Syed Kechik Syed Mohamed & Anor v. The Board of Trustees of the Sabah Foundation & Ors [2].

Of the two, Syed Kechik is all poetry!

But Terengganu Forest Products is the latest. There the FC set out a series of principles. We’ll call them the Five Principles. Commit them to memory.

Tip-2 –Satisfy Basic Prerequisites

This First Principle concerns Basic Prerequisites of Leave Application. Ensure that:-

(a):   the case started in the High Court.

(b):   the application concerns a decision made by the Court of Appeal.

(c):   it arose from the High Court ‘in the exercise of its original jurisdiction’.

Tip-3 – Understand what is Fatal

That is The Second Principle. These are circumstances when the court will not grant Leave at all. No Leave will be granted:-

(a).   in interlocutory appeals.

In Terengganu Forest Products, the FC referred to O.14, O.18 r.19 and said, ‘… more than over 60 … interlocutory orders which are normally discretionary and should be left to the trial judge to decide … (They) are ‘not final’. Such cases should just go on for trial’.[3]

(b):   where the answer to the Question is abstract, academic or hypothetical (so don’t ask for academic or hypothetical questions);

(c):   where neither party is interested in the result of the appeal (this is what happened to the Bar Council case against the Chief Justice and the President of the Court of Appeal); and

d):   if, upon its first impression the appeal will ‘inevitably fail’.

So don’t bother with questions in these areas.

Tip-4 – The ‘if-then’ category won’t work

The Third Principle is the ‘If-then’ or ‘conditional’ category. That won’t work either.

This is an example of such a question:

Example-1:

‘Whether when in interpreting a general release and/or a clause in an agreement containing a general release, it is ever permissible in law to take a literal rather than contextual interpretation of the same by ignoring the surrounding circumstances or factual background known to the parties at or before the date of the release’. (54 words).

Do you understand the question in Example-1? It is a conditional question. It is fact based. It says so. It is also hypothetical; and vague. The applicant obtained Leave. At the Substantive Hearing the Federal Court declined to answer the question. This really happened.

Tip-5 – Leave will also not be granted for statutory interpretation if 2 conditions exist

Under the Fourth Principle Leave will be refused:

(a):   where, in interpreting a statute, the Court of Appeal is ‘so obviously right’ that the FC can only uphold the CA’s decision. So don’t ask the FC to deal with statutory words which are unambiguous. [4].

(b):   in ‘Particular-Fact situation’  cases:[5].  This is where the interpretation of a statutory provision is relevant only to the particular set of facts presented to the court.

If your case (i) is not likely to recur or (ii) does not affect the country or any particular state, don’t even go there.

Avoid drafting questions that fall into this category.

Tip-6 –  The ‘No Leave Unless …’ category for Statutory or Contractual Interpretation is well nigh impossible

The Fifth Principle is only marginally less fatal than the 2^nd Principle.

In Terengganu Forest Products the court said Leave will not be granted ‘unless’ it is of ‘public importance’.

(a).  Leave will not be granted on questions that ask to interpret statutes – unless it is shown that such an interpretation is of ‘public importance’. So the local authority questions in Examples 5 and 10 demonstrate this.

(b).  Leave will not be granted on questions that ask for construction of contracts – unless it  benefits a trade or industry. The Fire Insurance question in Example-8 is of this type.

So avoid that trap.

Tip-7 – The Second Limb is easier to succeed than the First

Choose the Second limb any day.

The First Limb is far more difficult to overcome, because you have the onerous burden to prove that your question —

(a).   turns on matters decided at the Court of Appeal,

(b).   has never been decided by the FC ever,

(c).   is one which is ‘to be decided for the first time by the FC’.

All your opponent has to do is to show a case that bears some resemblance to your question, and you are out.

In an impossible climb, the Second Limb is easier to navigate.

Tip-8 – Overcome the Second Limb’s single hurdle

The second limb does not have the strict limitations of the First.

Yet you have to cross this hurdle: you have to show that the question is to ‘the public advantage’.

Tip-9 – If a First Limb Question is foisted on you – then explain ‘general principle’ carefully

If you have no choice but to meet a First-Limb question, spend substantial time in your application – not in your written submission – explaining carefully why it is a matter of ‘general principle’ and in the ‘public interest’.

Merely parroting in the affidavit that your question ‘is general’, and that it ‘is important to the public’ won’t cut it.

Go further.

Show yours is a one-in-a-thousand case.

That the FC decision will impact the general law in a major way.

Do some background research. Show demonstrable facts and figures.

If your case concerns – say – a fire insurance claim, then say, (e.g.):

That of the RM2.0 billion lost to fire every year, claims in the value of about RM1.5 billion are never indemnified because of the confusion this area of law poses (these are fictitious figures for the sake of example).

Show (don’t just say) that the question has a major impact on the insurance industry. Show how other jurisdictions have dealt with the problem – and why it is to public advantage.

Show why your question matters.

Ask the FC to intervene and dispel this mist of uncertainty — for the benefit of everyone.

Tip-10 – Locate the pivotal CA passage or show it’s omission has triggered s.96(a)

Take particular care over the 3-pronged, strict requirements of the First Limb.

Show where the Court of Appeal has referred, in its Grounds of Judgement, to that question – or the law surrounding that question.

If you can’t find that Pivotal Passage in the CA Grounds, you’ll fail.

If the CA has completely omitted that passage – and thereby made the error – then show how that omission was the source of an error central to the Leave Application.

An omission point is as important as a ‘manifest error’ point.

Then show that the Question Posed is coming up ‘for the first time’ before the FC; that no FC has ever dealt with it before.

And finally, show why it is of ‘general importance’.

About 75% of applicants fail at this point.

Tip-11 – Don’t argue that the Answer to the Question will solve parties’ problem

The question should suggest that there is a crucial point of law that requires ‘further argument’.

That the answer is important to do justice to the parties to the suit is completely irrelevant.

‘Blood and gore’ arguments won’t pass muster.

So do not speak of one party’s hardship.

Or how he or she has come to grief because of the ‘double-barrelled’ mistakes of the High Court and the CA.

That is an accepted risk of litigation.

So say the courts in the UK, Australia, New Zealand, and India.

We just copied their position.

The Court is looking for a ‘national interest’ point.

Show that the FC’s answer to your question will be to public advantage.

Tip-12 – Deep Research

Before planning your questions, read as widely as you can on the law surrounding the question.

Start with the latest textbook on the subject.

Then go to the All-England Annual Reports. The Quarterly Law Review is no pushover either. To this I would add two sources: internet articles, and the Indian Supreme Court reports. Those guys have rehearsed more law, more times, than any of us.

And for goodness’ sake pay a small sum of money to the University of Malaya Library and become a member: so you have access to a wide range of scholarly articles.

Tip-13 – Don’t continue the folly of the ‘whether …’ question

One problem we have in the Commonwealth is that we are all taught to frame any question of law with the word ‘Whether…’.

It is a widely followed, outdated – and useless – convention. The quicker you avoid it, the better it is. Not all questions of law fit into this formula.

The Americans abhor this.

Bryan A. Garner, the author of the runaway success ‘The Winning Brief’  says, ‘Don’t start with ‘whether’ or any other interrogative word’… because ‘It is ghastly in its usual form.’[6]

Tip-14 – Clarity

Vague questions fail.

Make the question as clear as possible.  ‘The best argument on a question of law is to state the question clearly.’ [7]

‘In law the right answer usually depends on putting the right question.’ [8]

Tip-15 – Set the stage for the question – then pop the question

Garner suggests the ‘Payne approach’:

‘A very useful device for stating a two-way question (i.e., Yes – or – No) on a complicated issue is to make an introductory statement (that) sets the stage for the question itself.’[9]

He illustrates this by framing a complicated question on income tax law: –

Example-2:

‘Whether the owner of coupon bonds should include in his gross income, the amount of coupons which he detached and gave to his son several months before maturity.’ (Boring, and confusing).

Example–3:

The taxpayer owned coupon bonds. Several months before their maturity, he detached them, and gave them to his son. He retained the bonds themselves. Is he relieved of income tax on these interest coupons?’

Of the two, Example-3 is clear.

So ask questions like that.

Set the stage.

Then pop the question.

The judges will get it.

Tip-16 – Use as few words as possible

Limit the questions to less than 75 words. If you can do it in 30 words, that’s brilliant. But don’t confuse simplicity for lucidity.

‘The court has not lived with your case for several years; you have a great deal to convey in a very limited space. It is critical that you formulate and reformulate the question presented until you have provided a favourable, accurate, and succinct characterisation of the issues involved in your case.’[10].

The take away here is ‘formulate and re-formulate’. Keep paring the question to the bone.  Do it again and again, until it becomes clear.

See Example-4:

‘Where a civil court has acquitted litigant of fraud, can the Court of Appeal reverse the finding – and to make a positive finding of fraud against him, having regard to the rules laid in Aerial v. De Mare[11]? (40 words).

Tip-17 – The simplest words are the best

Keep everything simple.

Another version of the question (in a later) Example-8 can be seen in Example-6:

‘Can aggravated and exemplary damages be awarded simultaneously?’

See e.g. 8:-

‘Can an insured under a fire policy (do something), having regard to the decision of the House of Lords in (case A) and the latest decision in the UK Supreme Court in (Case B).’

The words ‘at the same time’ instead of ‘simultaneously’ could have been used.

But that requires three extra words. ‘Simultaneously’ cuts down four words into one.

It is an easier read.

It deepens understanding.

It is less tiresome on the appellate eye.

Less is more.

Tip-18 – Pepper the question with lynchpin cases

A question without caselaw or a relevant statutory provision is uninteresting. It is liable to be ignored.

Therefore embellish the question with cases. Not any case. It must be one that must have changed the flow of the law. Choose questions with the following components: –

See these examples:-

Example-6: –

‘In view of (case A), is the proposition (set out your proposition) any longer good law?’

Example-7:-

‘Has the wide test in (case A) to the effect that (now set out your proposition) been now narrowed by (Case B)?’

Example-8:-

‘Can an insured under a fire policy (do something), having regard to the decision of the House of Lords in (case A) and the latest decision in the UK Supreme Court in (Case B).’ (This happened last week!)

So now apply the formula. This is what you get:-

Example-9:-

‘In view of the House of Lords decision in Rookes v Barnard[12], Cassel v. Broome [13], and the Federal Court decision in Bank Bumiputera Malaysia Bhd v. Mae Perkayuan Sdn Bhd [14]– as a matter of general principle – may aggravated damages be awarded for breach of contract?’ (57 words).

The question will immediately intrigue the court.

The judges will realise that what is being asked is a pure question of law.

No findings of facts are being challenged.

There is no contest over any evidence in any of these questions.

One judge called it, ‘the Killer Question’.

I call it ‘the Shining Question’.

It is all the same.

It must only be a Pure Question of Law. Nothing else.

Tip-19 – Use statutory authority to demonstrate there is an uncertainty

See Example-5:

‘Does s.95 of the Street, Drainage and Building Act 1974 render every local authority immune from any suit for breach of contract, or for negligence?’ (26 words).

Now contrast that with Example-1:

A local authority enters into a contract requiring it to perform certain duties in the Street, Drainage and Building Act 1974. The local authority breaches those obligations – or is guilty of negligence. Would s.95 of the Act make it immune from any suit?

Which is better?

The question has all the elements.

The statutory provision.

The drama.

The suspense.

How it now helps a local government escape liability.

So a general principle is lurking about. And the answer to it seems to benefit the public.

Tip-20 – Keep your submissions to 5 pages – max

(Hint: Go read this book: ‘The Brutal Simplicity of Thought: How It Changed the World,’  by M & C Saatchi).

If you exceed 5 pages, you will fail.

Use font size 14, and the sans serif fonts Arial, or Helvetica.

Winston Churchill, a master of the English language, once said in a letter to a dear friend:-

‘I did not have the time to write you a short letter. So I wrote a long one instead’.

Brevity takes effort.

Clarity takes hours of thinking, writing, and editing.

Lord Denning famously said,

‘I am not a good writer. I am a good re-writer.’

It is said that he sometimes edited his judgements as many as 40 times!

The moment they set eyes on it, the FC judges must say:

‘There is something here that troubles us. Let us hear what this counsel has to say.’

Tip-21 – Convince the Judges before they come up to the Bench

You’ve got to get the judges on your side before they ascend the bench. Your questions have to strike them as unusual while they rush through your written arguments in their chambers.  It’s got to intrigue them as they file into court. They must get it. Quickly.

‘The question should be stated so simply, and so clearly, that the judges will grasp it at once.’[15]

Tip-22 – Long submissions don’t work

Easy understanding does.  ‘Efficiency does not mean the paper with the shortest length; rather, (it means) the paper that takes readers the shortest time to understand.’ [16]

So,

‘… start in the very first sentence with the problem in this case.

Put it right up front.

Start early.

Don’t bury it under a lot of verbiage and preliminaries.’ [17]

So go straight to your questions and say:-

‘The Applicant seeks Leave on the following Questions…’.

Tip-23 – What not to do during arguments

Don’t bother with evidential points or findings of fact – whether in the affidavit, or the application. Avoid it like a plague.

During oral submissions don’t go on and on about a factual or evidential dispute. That is suicidal. You’ll walk into a trap. The judges will pounce. They’d say:

‘That’s a question of fact. We dismiss your application’.

Tip-24 – How to argue

Intrigue the judges with the question. Piqué their curiosity. Provoke their interest.

They will probe your understanding.

They will push.

They will prod.

Don’t panic! This is a good thing.

The more curious they are, the more questions you’ll get.

It will become a conversation.

Encourage it.

Don’t wilt under all that pressure.

They are just shaking the tree to see if anything falls.  They want to know if the Question is of national importance.

See Example-10:

A local authority enters into a contract requiring it to perform certain duties in the Street, Drainage and Building Act 1974. The local authority breaches those obligations – or is guilty of negligence. Would s.95 of the Act make it immune from any suit?

Tip-25 – During arguments, comply with the ‘90-second’ test

Don’t waste time at the Federal Court.

Say what you need to in 90 seconds.

It is like the scene in the whale hunting movie ‘In The heart of the Sea’.

If you can’t get the court’s attention at the first throw of the harpoon, you’d rarely get a second chance.

And the whale will sink your ship!

‘Unfortunately, the judge does not possess the luxury of time for leisurely, detached meditation.

You’d better sell the sizzle as soon as possible.’ [18]

There are other techniques

This is not the only successful method.

There may be other methods.

These techniques have worked for me.

I hope they do for you too.

Good hunting!

End Notes:

1. [2011] 1 CLJ 51.
2. [1999] 1 CLJ 325
3. 82 para [44]
4. Terengganu Forest Products p.75 para [29].
5. Syed Kechik.
6. ‘The Winning Brief: 100 Tips For Persuasive Briefing on Trial and Appellate Courts’, 3^rd Ed – which incidentally is the most brilliant book written by a lawyer of mercurial ability.
7. Rufus Choate (1799-1859), cited Crosby, ‘Mistakes Commonly made in Presentation of Appeals’, Schweitzer, ‘Trail Guide 1543, 1546 (1948).
8. Estate of Rogers v. Commissioner, 320 US 410, 413 (1943)
9. Stanley L. Payne, in ‘The Art of Asking Questions (1951)
10. Edward R Leahy, ‘The 10 Commandments Of Certiorari.’
11. [1959’s] AC 789
12. [1964] AC 1129
13. [1972] 1 All ER 801
14. [1993] 2 MLJ 76
15. Girvan Peck Tucson, (Writing Persuasive Briefs’ (1984).
16. Michael Alley, ‘The Craft of Scientific Writing,’ (1987)]
17. Judge Nathan L Hecht, ‘Judges on Effective Writing: The Importance of Plain Language (1994).
18. Judge Ruggero J. Aldisert, ‘Winning an Appeal Better Briefs and Oral Argument; (1992) Briefs and Oral Argument, 142 [1992]