October 2024
By Jessie Yin
A. Introduction
In legal practice, drafting clear, concise and well-reasoned written submissions is crucial for advocates to persuasively present their case and facilitate the court’s decision-making process. The High Court case of Davanam Constructions Sdn Bhd v THP Enstek Development Sdn Bhd [2024] CLJU 1204 (“Davanam Constructions”) highlights the importance of this skill. Justice Datuk Azimah binti Omar, now a Judge of the Court of Appeal, remarked on several pitfalls that advocates should avoid to ensure their written submissions are both impactful and helpful to the court.
B. Case Overview
In Davanam Constructions, the plaintiff sought declaratory relief to declare that the defendant had unlawfully terminated a Joint Venture Development Agreement and pursued specific performance of the agreement. The defendant, in turn, counterclaimed for damages, alleging that the plaintiff breached several agreements, including the Joint Venture Development Agreement, by failing to deliver ultra-low-density luxury Villas / Homesteads and Club House development.
C. The Importance of Clarity
In this instance, despite the plaintiff’s written submissions spanning over 700 pages, the central issue of the alleged breach, namely the plaintiff’s failure to deliver a promised development which led to the defendant terminating the agreement with the plaintiff, was buried under a mountain of extraneous detail. The judge was compelled to wade through the dense submissions to identify and uncover the true issues behind the agreement’s termination, resulting in wasted time and placing an undue burden on the court.
Justice Datuk Azimah remarked that the case was simple yet the plaintiff’s narrative was meandering and convoluted, the submissions were drafted in a haphazard manner which culminated in a spliced-up collage of submissions, excerpts of documents, and notes of evidence which were undiscernible from one another. It made for difficult reading and there was no index or summary to guide the court to appreciate the contents and contentions of the submission. The judge further noted that the manner in which the plaintiff’s submission was drafted did little to clarify the plaintiff’s case.
D. Structured Presentation Matters
A well-structured written submission enables the judge to navigate and comprehend the document with ease. To facilitate this, it is important that written submissions include clear headings, subheadings, an index and a summary of the topics covered and the arguments presented. While these components may seem minor, they are essential for guiding the judge’s understanding of the content. By organising and presenting arguments in a coherent manner, these components help ensure that the judge can swiftly grasp the main issues and avoid overlooking critical details.
Structure helps the court understand submissions easily, and is particularly important in cases where the complexity of the case requires an in-depth examination of the evidence and the law resulting in what may appear at first glance an overly lengthy submission but where the content is crucial to the proper determination of the issues.
E. Avoid Inserting Distractions
The key takeaway here is – more information does not necessarily improve written submissions. Overloading written submissions with excessive or extraneous information can be counterproductive, create confusion, and make it harder for the judge to discern the main points or arguments amidst the overwhelming detail. Depending on the case, it is often more effective to include only relevant and pertinent information necessary to present your arguments clearly and effectively. By focusing on clarity and brevity, you ensure that your key points stand out and are easily comprehensible.
F. Conclusion
Written submissions are fundamentally an exercise in persuasion, not a tool to obscure the weaknesses of a case or mislead the court. They must be meticulously crafted to assist the court in resolving matters with maximum efficiency and effectiveness. Achieving this requires a commitment to presenting arguments succinctly and logically, ensuring clarity without unnecessary verbosity that could dilute the impact of the written submissions. The primary objective is to convey your arguments effectively and straightforwardly, guiding the judge toward a fair and informed decision. Clear and concise written submissions are also vital in bolstering an advocate’s credibility in the eyes of the judge, reinforcing their integrity and professionalism.
This material is for general information only and is not intended to provide legal advice. If you have any queries regarding the above, please feel free to contact us at insights@chooi.com.my.