So you may be in a bit of trouble at the moment. Perhaps someone breached their contract with you. Or refused to pay up some money that is due to you. Right now, you want to enforce your rights, but you are unsure of your next move. Let us walk you through the following considerations before you decide to sue.
1. Step One: Calculate how much is owed to you.
Whether its loan money owed, fees for services rendered, or payment for goods delivered, your dispute must have a price tag on it. The amount you seek to claim may sometimes be a little less straightforward (i.e. the value of some land, or the breach of a commercial agreement, or the loss of future earnings), so perhaps it is best to consult a lawyer if you are unsure.
The amount you are claiming will determine which court your matter will go to, and consequently, how much your legal fees may cost.
A. If your claim involves an amount not more than RM5,000.00, you can file your matter at the Small Claims Court yourself, without the need to hire a lawyer;
B. If your claim is not more than RM100,000.00, the Magistrates’ Court will hear your case;
C. If your claim is between RM100,001.00 to RM1,000,000.00, it will be a matter for the Sessions Court;
D. If your claim exceeds RM 1 million, it should go to the High Court.
2. Step Two: Time
Consider how long ago did the cause of action arose. This is the actual action of your opponent that led to the dispute (i.e. an action or inaction that breaches a contract, for example), and cannot occur more than 6 years before the filing of your lawsuit, as provided under Section 6(1)(a) of the Limitation Act 1953. In tort claims (where you demand restitution for a wrongful act), the 6 year limit is calculated from when you begin suffering damages (i.e. losses). There are other limitations too, depending on the type of dispute, such as unfair dismissal complaints to the Director General for Industrial Relations must be within 60 days from the date of dismissal. But in the majority of cases, the 6 year rule applies.
However, if it has indeed exceeded 6 years, there might still be hope. Exceptions are made for cases that involve fraud, concealment, or mistake.
3. Step Three: Understand the Nature of your Claim
Consider the facts of your case, and the nature of your claim: will going to court be detrimental to you? Remember that when a dispute goes before a judge, all must be laid bare. If there are any elements to case that may land you in trouble, you may want to reconsider suing.
Many aggrieved people do not realize that their dispute is a criminal matter. Cases such as theft and violent assault should be reported to the police instead. Scams and fraud fall under both civil and criminal matters, but it is best to lodge a police report first, as it will come in handy in strengthening your civil lawsuit later on.
In criminal matters, you need not hire a lawyer, as the police and the Attorney General’s Chambers will decide if the person you complained about should be brought to court to face justice. In any case, the only major role lawyers can play in a criminal proceeding is to be your Defense.
Also, if your claim is contractual, check your contract for arbitration clauses, or clauses where parties agree to resolve any dispute via Alternative Dispute Resolution (ADR). These are alternative methods of resolving disputes, such as negotiation, court-guided mediation, or arbitration before an arbitrator. The process may be faster and cost-effective.
4. Step Four: Know your Opponent
Find out who is your opponent. Is it an individual or a corporation? Your dispute may have begun with a person, but if the contractual relationship is with his company, the correct party to sue would be the company.
Do you know your opponent’s address? This is important because to begin the litigation process, the writ (what we usually call “surat saman”) has to be served directly to your opponent, otherwise extra costs may be incurred.
Is your opponent bankrupt? Is he even capable of paying you in the event that you win your case? Remember, a victory in court may sometimes result in paper judgments. Ensure that your opponent is able to pay you off, or at least own enough assets that can be liquidated in order to pay you what you are awarded by the courts.
5. Step Five: Evidence.
Gather and organize any relevant evidence that may support your claim. This may include documents, photographs, emails, or WhatsApp conversations. Identify possible witnesses and make sure that they are willing to testify in support of you (should you need them to).
If you suspect that some important evidence is being held back by your opponent or a third party, you must make note of this and inform your lawyers, so that they can determine whether whether to apply for an injunction to prevent the destruction or concealment of such evidence.
Good evidence can significantly strengthen your case. A strong case with a high chance of winning would greatly reduce the risk of pointless litigation that will only result in high legal fees and no remedy to your dispute.
6. Step Six: Talk To Us
It is not enough to just file a suit. Before doing so you must consider the consequences. Would you still need to send a Letter of Demand, or can you file a suit immediately? Do you need to quantify all your losses? All this depends on the facts of your dispute, and what is the exact result you wish to achieve. Get in touch with us and we will analyze your case to determine the most prudent move.
This article was written by Caleb Goh from Marcus Tan & Co’s Litigation Department