Judgements without trial in civil proceedings in Malaysia: a brief analysis on the burden of proof required
Civil proceedings involve a complex procedure with various interlocutory applications before the matter is set for trial. Some of the interlocutory applications, namely applications to enter judgment in default, to strike out pleading and for summary judgment, may result in the plaintiff obtaining...
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| Format: | Article |
| Language: | English |
| Published: |
Penerbit Universiti Kebangsaan Malaysia
2020
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| Online Access: | http://journalarticle.ukm.my/16146/1/37932-145241-1-PB.pdf http://journalarticle.ukm.my/16146/ https://ejournal.ukm.my/juum/issue/view/1365 |
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| Summary: | Civil proceedings involve a complex procedure with various interlocutory applications before the matter is set for
trial. Some of the interlocutory applications, namely applications to enter judgment in default, to strike out pleading
and for summary judgment, may result in the plaintiff obtaining early judgment or disposal of the case without a
full trial. Interestingly, these applications require a different burden of proof for the plaintiff to satisfy. This article
seeks to explore the burden of proof necessitated in those applications in order to evaluate the likelihood of the
plaintiff obtaining judgment without trial. In achieving this objective, the process of civil proceedings in Malaysia
is briefly explained. This is followed by an analysis on the burden of proof required in the said applications. It is
observed that although judgment in defaults or summary judgment may be entered against the defendant upon
the plaintiff’s satisfaction of mere procedural requirements, it is equally ‘easy’ for the defendant to set aside or
oppose such judgment or application. A conclusion can be derived that civil procedure in Malaysia allows the
defendant a sufficient right or opportunity to have ‘his day in court’ by placing a low threshold for him set aside
judgment in default or oppose summary judgment application. Further, it is also observed that a stringent burden
of proof is needed for the plaintiff to be able to strike out the defendant’s defence and enter judgment on his
behalf. This is, arguably crucial so as to cloth the defendant with the right to a fair trial which includes the right
to be heard and present their cases sufficiently. |
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