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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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Main Author: Haniwarda Yaakob,
Format: Article
Language:English
Published: Penerbit Universiti Kebangsaan Malaysia 2020
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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spelling my-ukm.journal.161462021-02-11T00:31:15Z http://journalarticle.ukm.my/16146/ Judgements without trial in civil proceedings in Malaysia: a brief analysis on the burden of proof required Haniwarda Yaakob, 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. Penerbit Universiti Kebangsaan Malaysia 2020 Article PeerReviewed application/pdf en http://journalarticle.ukm.my/16146/1/37932-145241-1-PB.pdf Haniwarda Yaakob, (2020) Judgements without trial in civil proceedings in Malaysia: a brief analysis on the burden of proof required. Jurnal Undang-Undang dan Masyarakat, 27 . pp. 25-30. ISSN 1394-7729 https://ejournal.ukm.my/juum/issue/view/1365
institution Universiti Kebangsaan Malaysia
building Tun Sri Lanang Library
collection Institutional Repository
continent Asia
country Malaysia
content_provider Universiti Kebangsaan Malaysia
content_source UKM Journal Article Repository
url_provider http://journalarticle.ukm.my/
language English
description 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.
format Article
author Haniwarda Yaakob,
spellingShingle Haniwarda Yaakob,
Judgements without trial in civil proceedings in Malaysia: a brief analysis on the burden of proof required
author_facet Haniwarda Yaakob,
author_sort Haniwarda Yaakob,
title Judgements without trial in civil proceedings in Malaysia: a brief analysis on the burden of proof required
title_short Judgements without trial in civil proceedings in Malaysia: a brief analysis on the burden of proof required
title_full Judgements without trial in civil proceedings in Malaysia: a brief analysis on the burden of proof required
title_fullStr Judgements without trial in civil proceedings in Malaysia: a brief analysis on the burden of proof required
title_full_unstemmed Judgements without trial in civil proceedings in Malaysia: a brief analysis on the burden of proof required
title_sort judgements without trial in civil proceedings in malaysia: a brief analysis on the burden of proof required
publisher Penerbit Universiti Kebangsaan Malaysia
publishDate 2020
url http://journalarticle.ukm.my/16146/1/37932-145241-1-PB.pdf
http://journalarticle.ukm.my/16146/
https://ejournal.ukm.my/juum/issue/view/1365
_version_ 1691734021822742528
score 13.211869

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