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A legal walkover
25/07/2006 The Star
ARTICLES OF LAW By BHAG SINGH
THE law creates rights which can be legally enforced if these are created
according to accepted principles. When these rights are breached, one can
take action to enforce them according to legal procedures.
However, these rights though capable of being enforced through the courts
or other tribunals can sometimes be lost if the correct procedure is not
adopted or the time limits are not observed due to ignorance or negligence.
A reader asks what these situations are and whether a person can lose his
rights because he had overlooked or breached these requirements even though
the loss that is wrongfully caused is so obvious to everyone.
If rights are so acquired or lost, would this not be on the basis of
procedure not been complied with rather than the fact that the successful
party is entitled to such a decision on the merits of the claim?
I can only answer by saying that a technical victory is a fact of life.
There are often occasions when a person or company can be the beneficiary of
a technical victory to the detriment of the opponent.
This happens because prescribed procedures are not complied with. In the
case of litigation in the courts, it could be that the time frame was not
complied with or the required format of certain documents was not complied
with, contrary to strict legal requirements which the court cannot overlook.
However, such a scenario is not necessarily confined to court proceedings
alone. It can happen in sports where the rival team/player may not turn up
on time or at all and a victory is declared by a no-show.
Though the victor won, it does not mean he was better than the rival.
Thus, in litigation which is a duel in a court of law between a plaintiff
and a defendant in a civil case or a prosecutor and an accused in a criminal
case, rights that otherwise exist can be lost because action was not taken
within the stipulated period.
This is more so in the case of civil cases where a private dispute between
parties is involved. Time lines play a more significant role compared to
criminal and statutory offences where courts are more liberal in giving
extension of time because the individual's liberty or life is at stake.
The law of limitations sets out the period within which an action must be
filed. Generally, in the case of most disputes the period is six years. In
specific areas, it may be shorter or longer. In Sabah and Sarawak, the
limitation period generally can be much shorter depending on the basis of
the claim.
Therefore, if a person owes another money but no action has been filed and
the limitation period has passed, the debtor could tell the creditor that
though he bought goods from him, he not going to pay because the law of
limitation has already set in and a claim against him cannot be sustained.
Time can also come into play when proceedings have been commenced and are
pending but in the course of the proceedings, various types of documents
have to be filed within the time limits stipulated by the Court.
In some cases where directions are not complied with, it can happen that the
entire claim or part of it may be struck out. This is up to the discretion
of the judge. The decision depends on the judge and the nature of the
directions or order made which was not complied with.
However, in the context of a civil action where there are time lines to file
documents, the approach is sometimes different in that if the parties agree
to allow each other more time, the courts will in most cases not interfere.
However, if the request by one party to have more time is not agreed to,
then an extension can still be obtained by an application to the court.
A technical victory can also come about where the defendant does not appear
in court though a summons was served. Such non-appearance may be through
physical absence or non-filing of relevant papers. In such an event, a
default judgement is obtained akin to a walkover. However, unlike a
walk-over in supporting events, the judgement obtained in default can be set
aside where there are merits or credible reasons in the defence.
In such cases, the prerogative is more in the hands of the court whether to
allow the extension of time or setting the application aside based on
established principles.
In this regard, the element of the disadvantage and prejudice to each party
involved will no doubt be taken into account as well as the conduct,
dilatoriness and bad faith on the part of the party applying.
Sometimes it is said that the substance should take precedent over technical
formalities for justice to be done. Whilst there is some wisdom in such a
statement, it can sometimes be difficult to draw the line. In this
connection, it is relevant to quote the words of Lord Parker of Waddington
in London Association For Protection of Trade vs Greenlands Limited:
In some cases, no doubt a waiver of technical points may be conducive to
substantial justice being done between the parties. In others, again, it may
be dangerous if only because the dividing line between technicality and
substance is not always clearly defined. A rule of practice, however
technical it may appear, is almost always based on legal principle, and its
neglect may easily lead to disregard of the principle involved.
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