My Litigation and Enforcement in Malaysia Overview 2020

Litigation and enforcement in Malaysia: overview, Practical Law Country Q&A w-026-8363
Litigation and enforcement in Malaysia: overview

by Daphne Koo, Rahmat Lim & Partners
Country Q&A | Law stated as at 01-Jun-2020 | Malaysia
A Q&A guide to dispute resolution law in Malaysia.
The country-specific Q&A gives a structured overview of the key practical issues concerning dispute resolution in
this jurisdiction, including court procedures; fees and funding; interim remedies (including attachment orders);
disclosure; expert evidence; appeals; class actions; enforcement; cross-border issues; the use of ADR; and any
reform proposals.
This Q&A is part of the global guide to dispute resolution.
Main dispute resolution methods

Court litigation
Limitation periods
Court structure
Rights of audience
Fees and funding

Court proceedings
Confidentiality
Pre-action conduct
Main stages
Interim remedies
Proprietary Injunction
Final remedies
Evidence
Document disclosure
Privileged documents
Examination of witnesses
Third party experts
Appeals
Class actions
Costs
Enforcement of a local judgment
© 2020 Thomson Reuters. All rights reserved. 2

Cross-border litigation
Enforcement of a foreign judgment
Alternative dispute resolution
Proposals for reform
Contributor profiles
Daphne Koo
Main dispute resolution methods
1. What are the main dispute resolution methods used in your jurisdiction to resolve large
commercial disputes?
Commercial disputes in Malaysia may be resolved by way of court proceedings, arbitration, or mediation. The most common
method for dispute resolution in Malaysia is court proceedings. Arbitration proceedings and mediation proceedings may be
initiated if all parties to the dispute agree to do so.
Large commercial disputes are usually initiated in the High Court of Malaya which has a monetary jurisdiction of MYR1
million and above for civil cases.
The Malaysian court system is broadly adversarial. The judge plays a limited role in legal proceedings and mainly act as a
referee between two opposing parties. However, since the enactment of the Rules of Court 2012 which confer the court a
variety of procedural powers, such as striking out cases or imposing penalty costs in situations of non-compliance with the
court’s directions, the courts are increasingly taking on the role of a case manager. However, a judge cannot compel parties to
pursue alternative dispute resolution, unless the parties agree or have agreed to the same.
The standard of proof for a claimant to successfully prove his case is on a balance of probabilities.
Online dispute resolution is generally not available in the court system.
Court litigation
Limitation periods
2. What limitation periods apply to bringing a claim and what triggers a limitation period?
The laws on limitation are generally treated as a procedural law issue. Limitation periods are governed by the Limitation Act
1953 (LA). The limitation period for actions founded in contract or tort is six years from the date of the contractual breach or
tortious act. Actions to recover land have a limitation period of 12 years from the date the right of action accrues, and the
limitation period to enforce judgment is 12 years from the date the right to enforce judgment accrues.
For actions in respect of fraud or fraudulent breach of trust, or actions to recover trust property or the proceeds thereof from
the trustee, there is no limitation period.
It should be noted that pursuant to the Limitation (Amendment) Act 2018, which came into force on 1 September 2019, the
limitation periods in two circumstances have been extended:
• An extension of three years from the date of knowledge of the person having the cause of action founded on negligence
not involving personal injury and if the damage was not discoverable prior to the expiry of the original statutory
limitation period of six years (that is, where the damage is latent).
• Instead of the ordinary statutory limitation period (for example, six years for a contractual breach), when a person has a
disability at the time the cause of action accrued, the limitation period will be three years from the date the person
ceased to have a disability or died but the action cannot be brought later than 15 years from the date the cause of action
accrued.
Court structure
3. In which court are large commercial disputes usually brought? Are certain types of disputes
allocated to particular divisions of this court?
The appropriate court for a claim depends mainly on the value of the claim in dispute and the subject matter of the claim.
Other factors are taken into account, such as the nature of dispute (for example, whether it is land related, a motor vehicle
accident claims or tenancy related).
Parties can pursue commercial disputes in the Magistrates Court, the Sessions Court, or the High Court:
• The Magistrates Court. This court hears claims with a value of up to MYR100,000. Other than that, it is subject to the
same limitations in jurisdiction on specific cases as the Sessions Court, as stated below.
• The Sessions Court. This court hears claims with a value of up to MYR1 million, except for motor vehicle accident
claims, landlord and tenant disputes and distress actions (unpaid rent), over which the court has unlimited monetary
jurisdiction. The Sessions Court cannot hear cases with certain subject matter, such as dispute over title of immovable
property, admiralty claims, bankruptcy claims and enforcement of trust claims.
• The High Court. This court has jurisdiction to hear civil cases with a claim value of MYR1 million and above,
regardless of the subject matter of the claim.
Generally, employment disputes are heard by the Labour Court or the Industrial Relations Court. IP, competition and
maritime claims are heard by the specialised courts for those areas of law which are heard by the relevant sub-division of the
High Court.
The answers to the following questions relate to procedures that apply in the Courts of Malaysia

Rights of audience
4. Which types of lawyers have rights of audience to conduct cases in courts where large
commercial disputes are usually brought? What requirements must they meet? Can foreign
lawyers conduct cases in these courts?
Rights of audience/requirements
An Advocate and Solicitor of the High Court who is a qualified person under section 11 of the Legal Profession Act 1976
(LPA) and who holds a valid practicing certificate under section 29 of the LPA, has a right of audience to conduct cases in
Malaysian courts.
It is not mandatory for a private individual to engage a lawyer, as the individual may represent themselves in court
proceedings. Self-representation is not permitted, however, for companies as companies cannot ask their legal executives or
legal department personnel to represent them in court or in chambers. Companies must engage an advocate and solicitor of
the High Court to represent and act for them as per Order 5 rule 6 of the Rules of Court 2012 (ROC) and section 37(d) of the
LPA.
Foreign lawyers
It is difficult to obtain rights of audience for foreign lawyers due to the citizenship requirements in section 11, LPA which
provides that a qualified person may be admitted as an advocate and solicitor of if he or she is either a citizen or a permanent
resident of Malaysia. It is, however, possible for a foreign lawyer to obtain ad hoc admission as an advocate and solicitor of
the High Court for a particular case if both of the following conditions are satisfied:
• In the opinion of the court, the foreign lawyer has special qualifications or experience of a nature not available amongst
advocates and solicitors in Malaysia.
• The foreign lawyer has been instructed by an advocate or solicitor in Malaysia.
(Section 18, LPA.)
Fees and funding
5. What legal fee structures can be used? Are fees fixed by law?
For contentious matters, there are no fixed scales of fees in Malaysia, prescribed in law. Fees are generally charged on two
bases:

• An agreed hourly rate.
• A fixed fee per particular assignments within an overall case as may be agreed between an advocate and his or her
client(s).
The level of fees are guided by several factors, for example:
• The benefit of the service to the client.
• Novelty and difficulty of the question involved.
• Special position and seniority of lawyer involved.
(Rule 11 of the Legal Profession (Practice and Etiquette) Rules 1978).
Conditional and contingency fees are generally not permitted pursuant to section 112 of the LPA.
6. How is litigation usually funded? Can third parties fund it? Is insurance available for
litigation costs?
Funding
Clients are required to pay their own legal costs. Third party funding is not allowed in Malaysia on public policy grounds.
Insurance
Liability insurance offers an insured party coverage for claims brought against the, including legal costs of defending such
claims, subject to the terms of the insurance. Examples of liability insurance include:
• Public liability insurance.
• Product liability insurance.
• Professional indemnity insurance.
• Directors and officers liability insurance.
However, it is not common for insurance to be available solely for litigation costs.
Court proceedings
Confidentiality

7. Are court proceedings confidential or public? If public, are the proceedings or any
information kept confidential in certain circumstances?
Court proceedings are generally public and anyone can watch ongoing proceedings or access judgments on the court’s
official website. In respect of documents filed in the course of dispute however, non-parties will only be able to have access
through a court file search, which may only be conducted by a lawyer. A court file search can only be carried out if the
lawyer has the lawsuit number of the dispute. The courts can decide to hold proceedings in private, if they are satisfied that it
is expedient to do so in the interest of justice, public security or propriety.
Pre-action conduct
8. Does the court impose any rules on the parties in relation to pre-action conduct? If yes, are
there penalties for failing to comply?
The are no pre-action conduct rules in Malaysia.
Main stages
9. What are the main stages of typical court proceedings?
Starting proceedings
A claim is usually initiated by filing a writ of summons in court with either:
• A statement of claim; or
• A concise statement of the nature of the claim made, or the relief or remedy sought in the action.
The filing is usually done online and the writ is usually sealed by the court within one to two days.
Notice to the defendant and defence

Once the sealed writ is issued, the claimant must serve the writ of summons with the statement of claim. The claimant can
satisfy notice requirements by serving just the writ of summons endorsed with the concise statement of the cause of action
being relied upon and the reliefs that are being sought. This can be done through personal service or acknowledged receipt
(AR) from the registered postal addressed of defendant’s last known address (Order 10 Rule 1, Rules of Court (ROC)). The
first attempt at service must be within one month from the date of issue of the writ. There is no deadline within which service
on the defendant must be achieved.
Once the defendant receives the service of the writ, the defendant has 14 days to enter appearance in respect of a claim, by
filing a memorandum of appearance. If the defendant disputes the court’s jurisdiction to hear the claim (for example, by
claiming that Malaysia is not the proper forum for the dispute or that there were irregularities in the service of the writ), the
defendant must file a notice of application supported by an affidavit within the time limit for serving a defence. Failure to
enter appearance may result in a judgment in default of appearance being entered against the defendant.
After filing the memorandum of appearance, the defendant must serve it on the claimant within 14 days.
If the claimant has not filed a statement of claim at this point, they must do so within 14 days from the date the defendant
entered appearance.
If the defendant intends to defend the action, they must serve a defence on the claimant within 14 days from the deadline for
entering appearance or when the statement of claim is served on them, whichever is later. Again, failure to serve a defence
entitles the claimant file for a judgment in default of defence against the defendant.
Subsequent stages
The claimant may serve a reply to the defence if they intend to deny or respond to the allegations made in the defence.
Failure to specifically deny an allegation of fact will be deemed an admission (Order 18 rule 13(1), ROC). Pleadings are
deemed to be closed at the expiry of 14 days from the date of filing and service of the claimant’s reply.
Pre-trial case management will then begin and the court may issue directions and orders to secure the just, expeditious and
economical disposal of the action or proceeding and to forest a date for a trial (Order 34, ROC).
With the implementation of the e-Filing system from 1 March 2011, all filing of documents must be done via the electronic
filing system of the Malaysian courts for all court proceedings.
Interim remedies
10. What steps can a party take for a case to be dismissed before a full trial? On what grounds
can such applications be brought? What is the applicable procedure?
Summary judgment
A claimant can apply for a summary judgment if the matter is:
• Suitable for determination without full trial of the action. In this regard, the court will consider factors such as whether
there is no real prospect of success for bringing or defending the claim and whether there has been a clear admission by
the respondent to the claimant’s claim.
• Such determination will finally determine the entire cause or matter.

(Order 14A, ROC).
An application for summary judgment is made by filing a Notice of Application, supported by an affidavit signed by the
claimant, to which the relevant documentary evidence is to be annexed as exhibits. The respondent will be entitled to file
their own affidavit in response to the application. The application will then be set for hearing and a decision will then be
made by the court, after hearing legal submissions from the parties.
Strike-out
An applicant can apply to strike out the whole or part of the claimant’s writ or statement of claim if the claim or the
defendant’s defence if it:
• Does not establish a reasonable cause of action.
• Is scandalous, frivolous or vexatious.
• May prejudice or delay the fair trial of the action.
• Is an abuse of the court’s process.
(Order 18 rule 19, ROC).
An application for strike-out is commenced by filing a notice of application supported by an affidavit. The respondent will
then be entitled to file an affidavit in response to the application. The application is then heard before a judge in chambers.
Default judgment
If a defendant has not responded to the claim made against them within the specified time limit, an application may be made
to the court to enter a default judgment against the defendant. The procedure for doing so depends on whether the claim is for
a liquidated demand, unliquidated damages, a claim in detinue, a claim for possession of immoveable property or a mixture
of such claims.
(Order 13, ROC).
11. Can a defendant apply for an order for the claimant to provide security for its costs? If yes,
on what grounds?
A defendant may apply for security of costs on the following grounds:
• The claimant is ordinarily a resident out of the jurisdiction.
• The claimant is a nominal claimant suing for the benefit of another person and there is reason to believe that that person
will be unable to pay the defendant’s legal costs if ordered to do so.
• The claimant’s address is not stated in the writ or is incorrectly stated.
• The claimant changed their address during the proceedings with a view to evading the consequences of proceedings.

(Order 23 rule 1, ROC 2012).
On receipt of an application for security for costs, the judge will consider the following factors in deciding whether to grant
an order for security of costs:
• Whether the claimant stands a reasonable chance of success.
• Whether the defendant’s application is oppressive towards the claimant.
• Any loss of funds of the claimant due to the defendant’s conduct.
• Whether it is a bona fide application by the defendant.
(Sir Lindsay Parkinson & Co v Triplan Ltd [1973] 2 All ER 273).
12. What are the rules concerning interim injunctions granted before a full trial?
Availability and grounds

There are two main types of interim injunctions which can be granted by the courts, namely, prohibitory injunctions and
mandatory injunctions.
In determining whether to grant an interim injunction, the court will consider the following criteria:
• Whether there is a serious question to be tried.
• Whether damages are an adequate remedy.
• The balance of convenience and whether it weighs in favour of the applicant.
The applicable standard of proof for the injunction to be granted is on a balance of probabilities.
In most cases, the applicant is required to provide an undertaking as to damages, that is, that the applicant will pay damages,
as may be decided by the courts to be payable in the event the courts subsequently find that the injunction ought not to have
been granted in the first place. However, the enforcement of the undertaking is at the discretion of the courts. In deciding
whether to enforce the undertaking, the courts may consider factors such as the respondent’s non-compliance with earlier
orders and whether the application for the injunction was motivated by deceitful and malicious intent (GS Gill Sdn. Bhd v
Descente Ltd [2010] 4 MLJ 609).
Prior notice/same-day
In urgent cases (such as where there is an impending deadline), an injunction can be obtained ex parte, that is without prior
notice to the defendant (Order 29, ROC).
Mandatory injunctions
Mandatory injunctions are used to compel a party to perform a certain act. However, the courts do not grant it as readily as

prohibitory injunctions. The applicant must establish all of the following:
• If the injunction is not obtained, damages would be insufficient to remedy the damage caused.
• The balance of hardship lies with the applicant.
• There will be grave damage to the applicant if the injunction is not granted.
(Gibb v Malaysia Building Society [1982] 1 MLJ 271).
Right to vary or discharge order and appeals

A respondent can apply to set aside an injunction order within 21 days after the ex parte injunction is granted (Order 29,
ROC). Although an ex parte injunction order will automatically lapse within 21 days, an application to set aside the
injunction will be required and relevant in terms of determining the costs and damages incurred as a result of the ex parte
injunction order.
A respondent may also apply to vary or appeal an injunction order. The application to vary may be made throughout the
duration of the injunction order and the application to appeal against an injunction order must be made within one month
from the date the injunction order is granted.
13. What are the rules relating to interim attachment orders to preserve assets pending
judgment or a final order (or equivalent)?
Availability and grounds

A mareva injunction (also known as a freezing order) is a court order preventing a defendant from dealing with, moving or
disposing of their assets. Essentially, it means that the defendant’s assets are “frozen” such that any attempt to transfer or to
move their assets would constitute a breach of the court’s order and a contempt of court. A freezing order is binding on third
parties if they are served with the order.
A freezing order obliges the defendant to make disclosure of all their assets, whether within or outside of Malaysia. It may
also, in certain circumstances, oblige third parties to disclose information relating to the defendant’s assets that are held by
them.
Because of the far-reaching consequences of a freezing injunction, the claimant must satisfy the following requirements
before the court would grant such order:
• The claimant must have an arguable case.
• The defendant must have assets within the jurisdiction.
• There is evidence of a real risk of dissipation or removal of the defendant’s assets prior to issue of a judgment in the
substantive proceedings.
• The balance of convenience lies in favour of the claimant and the granting of a freezing injunction.
It is to be noted that the Malaysian courts have accepted that the risk of dissipation of assets always exists if it can be shown
that the defendant either acted without good faith, maintains foreign accounts or there has been evidence of movement of
funds into foreign accounts.
Prior notice/same-day
An application for a freezing injunction may be made ex parte. However, it will only be valid for 21 days from the date the
order was granted and a hearing of the application must be scheduled within 14 days from the granting of the ex parte order.
Where the application is made ex parte, the claimant is obliged to make full and frank disclosure of all relevant material facts,
including those that are not in the claimant’s favour. A failure to do so may result in the order being set aside.
Main proceedings
Malaysian courts can grant freezing injunctions in respect of substantive proceedings taking place in another jurisdiction.
Preferential right or lien

An attachment does not create any preferential right or lien in favour of the claimant over the seized assets.
Damages as a result
A plaintiff seeking a freezing injunction must also give an undertaking to compensate the defendant for any damages that
they may suffer as a result of the order, if it later transpires that the order ought not to have been granted.
Security
Generally, no further security is required to be given save for the undertaking for damages by the applicant. However, the
defendant can apply for security in addition to the undertaking granted.
14. Are any other interim remedies commonly available and obtained?
Proprietary Injunction
A claimant may also seek to preserve a specific asset of the defendant’s over which the claimant is claiming a proprietary
interest (Steven Gee, ‘Commercial Injunctions’ (6th edition, Sweet & Maxwell) at 7-012). To apply for and obtain a
proprietary injunction, a claimant will have to establish all of the following:
• There is a bona fide serious issue to be tried.
• The balance of convenience lies in favour of granting the injunction.
• That damages would not be an adequate remedy.
(American Cynamid v Ethicon Limited [1975] AC 396 as adopted by the Malaysian courts in the case of Keet Gerald Francis
Noel John v Mohd Noor bin Abdullah [1995] 1 MLJ 195 at pp.206-207).
It is not uncommon for a proprietary injunction to be granted to preserve the assets of a victim of a fraudulent scam which
has fallen into the hands of a third party and such injunction would be granted even though the assets sought to be preserved

are monetary in nature.
Anton Piller Order

Where a claimant is concerned that a defendant may hide or destroy evidence that is relevant to the claimant’s claim, the
claimant may seek an injunction requiring the defendant to permit the claimant to enter into the defendant’s premises to
enable an inspection, seizure and removal of documents relating to the claimant’s claim. This type of injunction is more
commonly known as an “Anton Piller” order.
In order to obtain an Anton Piller order, the claimant must establish all of the following:
• There is an extremely strong prima facie case.
• The damage, potential or actual, must be very serious for the claimant.
• There must be clear evidence that the defendant has in its possession incriminating documents and that there is a real
possibility that the defendant may destroy such material before any inter partes applications can be made.
As with a freezing injunction, the application must be accompanied by a full and frank disclosure and an undertaking as to
damages is to be given. A defendant may make an application for an ex parte Anton Piller order to be set aside and may also
make a claim for any damages arising from the order.
Bankers Trust Order

A claimant may apply for a disclosure order against a third party bank for information pertaining to a defendant’s bank
account known as a “Bankers Trust” order (named after the English case that established the jurisdiction and power of a court
to make such a disclosure order (Bankers Trust Co v Shapira and Others [1980] 1 WLR 1274 at p. 1275)). Such a disclosure
may also be applied for pursuant to sections 134 and Schedule 11 of the Financial Services Act 2013 and section 7 of the
Bankers’ Book (Evidence) Act 1949. A Bankers Trust order is most commonly used in order to assist the claimant in tracing
the whereabouts of monies claimed against the defendant.
Norwich Pharmacal Order

Prior to commencing proceedings, a claimant may apply for a “Norwich Pharmacal” order to obtain documents from a third
party with the aim of identifying the wrongdoer. This is usually done in circumstances where the claimant is uncertain of the
parties that may be involved in the wrongdoing committed against them.
Strict conditions must be satisfied to ensure that such disclosure application is not made as a “fishing expedition”. The Court
of Appeal elaborated on this issues, stating that: ”[T]he respondent must show that the discovery is necessarily required even
before an action is initiated as it is precisely to enable the respondent to decide whether he can even commence action
against the appellant in particular, to start with. And if the information revealed from that discovery can determine or assist
in reaching an answer to that predicament, then the order ought to be made.” (Infoline Sdn Bhd v Benjamin Lim Kheng Hoe
[2017] 6 MLJ 363, CA).
To obtain a Norwich Pharmacal order, the claimant must provide an affidavit containing the following information:
• The documents sought for disclosure.
• Sufficient and material facts to show that the defendant is in possession, power and/or custody of the documents
concerned or is likely to have the documents.
• Sufficient facts to show the likelihood of the defendant being a party named in the subsequent legal action.
• The relevancy of the documents sought for disclosure.

(Order 24, rule 7A (3), Rules of Court 2012).
Where such order is made by the court, the person against whom the order was made will be entitled to his costs of the
application and of complying with any order made on an indemnity basis unless the court orders otherwise (order 24 rule 7A
(9), Rules of Court 2012).
Final remedies
15. What remedies are available at the full trial stage? Are damages only compensatory or can
they also be punitive?
There are various remedies that are available at the full trial stage and these include monetary damages, declarations, specific
performance and injunctions. For civil cases, the losses must be proven on a balance of probabilities.
Evidence
Document disclosure
16. What documents must the parties disclose to the other parties and/or the court? Are there
any detailed rules governing this procedure?
All documents which are relevant to the case and which are intended to be used during the proceedings must be disclosed
during the pre-trial case management stage. to the court may order the production of the following documents pursuant to a
disclosure application:
• Documents on which the party relies or will rely.
• Documents which could adversely affect or support either party’s case.
(Order 24, ROC).
If such order is made, the party required to make disclosure is under a duty to continue to make disclosure of such documents
until the trial has concluded. The extent of the parties’ obligation to preserve documents once litigation is in contemplation or
in progress depends on the relevancy of the documents. If such documents are reasonably expected to be relevant and
required for trial purposes, then a party must preserve the same. Parties are expected to make a reasonable search for
documents which are or have been within their control.
The ordinary time limit for disclosure depends on the pre-trial case management directions given by the court.

All disclosures must be provided in physical hard copy unless otherwise directed by the court.
In the event of non-compliance, the judge is entitled to take any action they consider just, which includes dismissing the
action or striking out the defence.
17. Are any documents privileged? If privilege is not recognised, are there any other rules
allowing a party not to disclose a document?
Privilege applies to communication between a solicitor and the client for the purposes of:
• Seeking legal advice (this is known as “legal advice privilege”).
• Existing or contemplated litigation (this is known as “litigation privilege”).
Legal advice privilege does not extend to communications between a party to litigation and their in-house counsel.
Legal advice privilege is not absolute. There are exceptions to the rule including, among other things:
• Any communication made between a client and their lawyer in furtherance of any illegal purpose.
• Any fact observed by a lawyer in the course of his engagement by a client indicating that a crime or fraud has been
commenced since the commencement of their engagement by the client.
Without prejudice communications are considered privileged (section 23, Evidence Act 1950). Any admissions made in such
communications are inadmissible in legal proceedings, if they are made under an express condition that such admissions are
made without prejudice to court proceedings. This includes communications made in a genuine attempt to settle the dispute.
Other non-disclosure situations

Other documents that cannot be made subject to disclosure include those covered by public policy privilege and affairs of
state privilege. Public policy privilege applies to documents which if disclosed would be injurious to public interest (order
24, ROC). Affairs of state privilege applies to documents such as military secrets, international affairs and departmental
policy documents.
Confidential or commercially sensitive documents may be protected from disclosure by an application to the court by a party.
The court, after reviewing such application, may make orders such as for the redaction of the confidential or commercially
sensitive portions of the documents or direct for such documents to be available only for the court’s review and to be sealed
thereafter.
Examination of witnesses

18. Do witnesses of fact give oral evidence or do they only submit written evidence? Is there a
right to cross-examine witnesses of fact?
Oral evidence
The weight that is attached to oral evidence will depend on an assessment of the witness’ honesty and truthfulness by the
court. It may be considered to be of less value than documentary evidence, especially if the oral evidence contradicts the
available documentary evidence. Depending on the nature of proceedings, witnesses of fact will usually provide written
evidence in the form of affidavits or oral evidence during trial.
Witness statements are usually filed at court to facilitate a smoother and faster witness examination process. Generally,
witness statements must be filed seven days before the first day of trial. Witnesses will also be required to appear in court to
confirm their witness statements and must be available for cross-examination and re-examination by the parties. The oral
testimony of witnesses for their examination in chief need not necessarily be limited to what was set out in their witness
statements. However, leave of the court will be required for any additional facts that a witness may include during their
examination in chief.
Right to cross-examine
During trial, witnesses are subject to cross-examination by the opposing party. The judge is entitled to ask questions to obtain
proper proof or relevant facts. (Section 165, EA).
Third party experts
19. What are the rules in relation to third-party experts?
Appointment procedure
There is no obligation to disclose a draft expert report.
Generally, it is the parties who are responsible for appointing experts to provide expert evidence and give testimony at trial.
The court may however, limit the number of experts summoned. (Order 40A, rule 1, ROC).
Role of experts
There is an overriding duty imposed on the expert to assist the court on matters within his expertise. The expert’s duty to the
court overrides any obligation to the party who has instructed them or is paying them.
Right of reply
Order 40A of the ROC sets out the requirements for expert evidence. Expert evidence must be given in the form of a written
report signed by the expert and exhibited in an affidavit sworn to or affirmed by the expert testifying that the report exhibited
is theirs and that they accept full responsibility for the contents of the report. An expert report must include details of the
expert’s qualifications, any literature or other material which the expert has relied on in making the report, a statement setting
out the issues which he has been asked to consider and the basis upon which the evidence was given.
The court may direct a discussion between experts for the purpose of requiring them to identify the issues in the proceedings
and where possible, to reach an agreement on the issues. The court may also specify the issues which the experts must
discuss.
Within 14 days of the disclosure of the expert’s reports, parties may submit written questions to the experts about their
reports, with the permission of the court.
During the trial, experts may be cross-examined about their reports and opinions.
Fees
The party who appoints the expert will bear the expert’s fees. The fees, however, may be passed on to the losing party at the
conclusion of the trial by asking the judge for the costs to be borne by the losing party.
Appeals
20. What are the rules concerning appeals of first instance judgments in large commercial
disputes?
Which courts
An appeal against decisions of the High Court can be made to the Court of Appeal (section 67(1), Courts of Judicature Act
1964 (CJA)).
Appeals against the decisions of the Court of Appeal can be made to the Federal Court, subject to obtaining permission to
bring an appeal (section 96 and 97, CJA).
Grounds for appeal

Appeals to the Court of Appeal.
An appeal can be made when either:
• The claimed amount is MYR250,000 or more.
• The claim pertains to an interpleader judgment given after trial.
(Section 68, CJA)
To appeal in other instances, permission of the Court of Appeal must first be obtained. No appeal is allowed for consent
judgments or where the judgment of the High Court is declared final in any written law.
Appeals to the Federal Court. An appeal can be made, if either:
• It is an appeal against any judgment or order of the Court of Appeal in respect of any civil matter decided by the High
Court in the exercise of its original jurisdiction and there is a question regarding a general principle decided for the first
time or a question of importance and answering it would be in the public interest.
• It is an appeal regarding any provision of the Constitution and the validity of any written law relating to such provision.
(Section 96, CJA).
Time limit
An appeal to the Court of Appeal from a decision of the High Court must be made within one month from the date of the
order appealed against (rule 12, Rules of Court of Appeal 1994).
Leave to appeal to the Federal Court from the decision of the Court of Appeal must be made within one month from the
decision of the Court of Appeal (section 97(1), CJA).
Class actions
21. Are there any mechanisms available for collective redress or class actions?
Class actions are usually pursued in the form of a representative action (order 15, ROC). The requirements for a class action
are:
• The claimants or defendants must be members of the same class.
• There must be a common grievance.
• The reliefs must be beneficial to all members of the same class.
(Palmco Holdings v Sakapp [1988] 2 MLJ 624).
A class action adopts an “opt-in” mechanism in which a member of the same class may apply to be included in the
proceedings as a co-plaintiff or co-defendant. Class actions must be funded by the parties themselves.
The claimants must be of the same class before they can be pooled into a class action.
Costs

22. Does the unsuccessful party have to pay the successful party’s costs and how does the court
usually calculate any costs award? What factors does the court consider when awarding costs?
Generally, costs are recoverable by the successful party and the losing party has to bear their own costs (order 59, rule 3(2),
ROC). However, the court retains the discretion to order the successful party to pay the losing party instead in certain
circumstances, such as when an appeal is heard as a result of the misconduct or neglect of the winning party (order 59, rule 5,
ROC).
The legal costs awarded by the court will include the getting-up fee, that is, the legal fee that is incurred for the preparation of
the action. However, in practice, this sum is usually not the actual legal fee that is expended by a party. Costs awarded in the
case are determined by the court, taking into account factors such as the complexity of the matter, the quantum of the claim
and whether the matter involved a novel or complex issue of law. When determining the quantum of costs to be awarded, the
courts are also required to take special matters into account, such as:
• Whether there was an offer of contribution or offer of settlement.
• The conduct of all parties before and during proceedings.
(Order 59 rule 8, ROC).
The court does not have the power to manage, limit or otherwise control costs during the proceedings. However, the costs
that are awarded by the court to the winning party ultimately may not reflect the actual amount that is expended by the party.
23. Is interest awarded on costs? If yes, how is it calculated?
Any award on costs will carry interest at the rate determined by the Chief Justice at that time (order 59 rule 24, ROC).
Presently, the rate is 5% per annum.
Enforcement of a local judgment
24. What are the procedures to enforce a judgment given by the courts in your jurisdiction in
the local courts?
Writ of execution

A judgment may be enforced by a writ of execution. There are several types of orders available under a writ of execution:
• Writ of seizure and sale for payment and money.
• Writ of delivery for movable property.
• Writ of seizure and sale for immovable property.
Permission of the court may be necessary to enforce a judgment in certain circumstances:
• Once six years or more has lapsed from the date of judgment.
• Where any change has taken place in the parties entitled or liable to execution under the judgment or order.
• Where the judgment or order is against the assets of a deceased person which is coming to the hands of his executors or
administrators.
(Order 26, rule 2(1), ROC).
Garnishee proceedings
A judgment creditor can apply by garnishee proceedings to order a garnishee (third party) to pay the judgment creditor of any
debt due or accruing to the judgment debtor. In other words, the judgment creditor can compel the debtors of the judgment
debtors to settle their debts with the creditor instead.
Charging order
A charging order imposes a charge over the debtor’s beneficial interest in land (order 50, ROC).
Appointment of receivers by way of equitable execution

If a judgment debtor is receiving income from various sources such rents, profits, royalties, and dividends, an appointment of
receivers by way of equitable execution is an appropriate method to enforce a judgment. The procedure of appointing a
receiver is set out in Order 30 rule 1 to rule 6 of the ROC.
Cross-border litigation
25. Do local courts respect the choice of governing law in a contract? If yes, are there any
national laws or rules that may modify or restrict the application of the law chosen by the
parties in their contract? What are the rules for determining what law will apply to
non-contractual claims?
The Malaysian courts will respect the choice of law clause in contracts except where there are public policy reasons not to do
so.
Where parties have agreed that the law of a foreign jurisdiction will govern their contract, the Malaysian courts will respect
the choice of law, except in certain circumstances. For example, where the dispute relates to immoveable property which is
governed by provisions of Malaysian land law.
In an action for damages for breach of contract governed by a foreign law, the measure of damages must be decided
according to Malaysian law, even if the parties agreed that the applicable law to the contract is a foreign law (Scandinavian
Bunkering (Singapore) Pte Ltd v MISC Bhd [2015] 3 MLJ 753).
Where the parties have agreed that Malaysian law will govern their contract, Malaysian courts will respect the choice of law
unless it is against Malaysian public policy. However, Malaysian courts will normally have regard to the laws of another
jurisdiction, as set out above.
No choice of law and non-contractual claims

In the absence of any agreement between the parties and in relation to non-contractual claims, the court will determine both
the procedural law and substantive law in the manner set out below.
If a case is commenced in the Malaysian courts, the default procedural law would be Malaysian law. To decide whether or
not a case should be tried in Malaysia, the court will first determine whether it has the jurisdiction to try the case. The High
Court in Malaysia will have jurisdiction to try all civil proceedings where either:
• The cause of action arose in Malaysia , that is, that the breach or root of the dispute occurred in Malaysia.
• The defendant or one of multiple defendants resides or has their place of business in Malaysia.
• The facts on which the proceedings are based exist or are alleged to have occurred in Malaysia.
• Any land ownership in dispute is situated within the local jurisdiction of the court (that is the physical territory in
Malaysia, over which the court presides).
(Section 23, Courts of Judicature Act 1964).
Once the court is satisfied that it has jurisdiction to try the case, the court will apply the principle of forum non conveniens (as
explained in detail below) to determine whether or not to try the case.
In terms of substantive law, the courts will take the general position that Malaysian law will be applicable subject to the
principles of conflict of law such as considered by reference to the place where the contract was negotiated or entered into, by
reference to the place most closely connected to the dispute or by reference to the place most closely connected to the
contract.
26. Do local courts respect the choice of jurisdiction in a contract? Do local courts claim
jurisdiction over a dispute in some circumstances, despite the choice of jurisdiction?
Malaysian courts will generally give effect to choice of jurisdiction clauses. Disregarding a choice of jurisdiction clause in
the absence of exceptional circumstances would imply that the courts are condoning a breach of agreement (World Triathlon
Corp v SRS Sports Centre Sdn. Bhd [2019] 4 MLJ 394).
However, Malaysian courts still retain discretion to decide on the applicable jurisdiction on a case-by-case basis. The
Supreme Court (the precursor to the Federal Court) stated that in exercising their discretion, the courts will take into account
the principle of forums non conveniens (that is, whether the Malaysian courts are the most appropriate tribunal to try the

case). Factors considered include:
• Convenience and expense of hearing the case in Malaysia, rather than another jurisdiction.
• Availability of witnesses.
• The law governing the relevant transaction.
(American Express Bank Ltd v Mohamod Toufic Al- Ozeir & Ors [1995] 1 MLJ 160).
27. If a party wishes to serve foreign proceedings on a party in your jurisdiction, what is the
procedure to effect service in your jurisdiction? Is your jurisdiction a party to any international
agreements affecting this process?
Malaysia is not a party to an international convention on this issue. Service of foreign proceedings in Malaysia is governed
by Rule 10 of the ROC. Proceedings must be served personally or by AR to the registered postal address of the defendant.
This is exempted in the following circumstances:
• Where the defendant’s solicitors accept the writ on behalf of the defendant.
• Where the defendant has entered an appearance (that is, that he or she has filed a memorandum of appearance in court,
to acknowledge the claim that has been initiated against him or her and to indicate that he or she will be defending the
claim).
Personal service is effected by leaving a copy of the document with the person to be served (order 62, rule 3, ROC).
However, the service of the document and its contents should be made known to the defendant, otherwise it might be
considered ineffective (Banque Russe v Clark [1894] WN 203).
Service of documents can be effected on a corporation, by either:
• Leaving a copy of it at the registered office of the corporation.
• Sending it by registered post to the principal office.
• Handing a copy of it to the secretary, director or any other officer of the corporation.
If the defendant’s location cannot be traced or multiple service attempts have failed, the claimant may apply for an order for
substituted service (order 62, rule 5, ROC).The claimant however, should make at least two visits to the defendant during
reasonable hours and deliver an appointment letter which states the time of the next visit and give the defendant an
opportunity to make a different appointment (practice note 1/1968). Once the order has been obtained, the court may direct
the claimant to take necessary steps to bring the news of the proceedings to the defendant’s attention by way of either:
• Advertisement in a local newspaper.
• Posting a copy of the writ on the court premises.
If foreign documents required for service are not in Malay or English, a certified true translation to Malay or English will be

required.
28. What is the procedure to take evidence from a witness in your jurisdiction for use in
proceedings in another jurisdiction? Is your jurisdiction party to an international convention on
this issue?
A foreign party can seek the assistance of Malaysian courts to take evidence from a local witness for use in foreign
proceedings (order 66, ROC). An application must be made ex parte by a person duly authorised to make the application on
behalf of the foreign court in question. Such application must be supported by an affidavit. A letter of request or other
document issued by a foreign court to obtain evidence of a witness for the purposes of civil proceedings before that court
must also be included as an exhibit.
The examination of a witness can be taken before any fit and proper person nominated by the person applying for the order,
or by the registrar of a Malaysian court. Subject to a contrary order, the witness will be examined, cross-examined and
re-examined in the same manner as at a trial. The examiner will send the deposition of the witness to the registrar, who will
then issue a certificate to be sealed by the High Court for use out of the jurisdiction. The registrar will then send this
certificate to the authorised person for transmission to the foreign court or tribunal.
Malaysia is not a party to an international convention on this issue.
Enforcement of a foreign judgment
29. What are the procedures to enforce a foreign judgment in your jurisdiction?
A foreign judgment must be registered in the Malaysian courts before it can be enforceable. The requirements for registration
are found in section 4 of the Reciprocal Enforcement of Judgments Act 1957 (REJA).
One of the requirements for registration of foreign judgments is that the foreign judgment in question must be from a
reciprocating country as provided for in the list of countries in REJA. A foreign judgment from any country not registered
under REJA must be enforced by commencing fresh proceedings. This requires proceedings to be brought in a Malaysian
court and for a domestic judgment to be obtained in which the claimant must provide prima facie evidence of a claim against
the respondent.
If the foreign judgment is from a reciprocating country, an application may then be made to register the foreign judgment.
The foreign judgment creditor must lodge an originating summons supported by an affidavit. In practice, the initial hearing
date is sought on an ex parte basis. The affidavit in support must exhibit a duly verified, certified or authenticated copy of the
foreign judgment. If the judgment is not in English, a translation certified by a notary public must also be filed. The affidavit
must comply with certain formalities, as follows:
• State the name, trade or business and usual or last known address of the judgment creditor and judgment debtor.
• State, to the best of the information or belief of the deponent, that the judgment creditor is entitled to enforce the

judgment, that the judgment has not been satisfied, that the judgment does not fall within any of the cases in which the
judgment may not be ordered to be registered under REJA, that as at the date of the application the judgment may be
enforced by execution in the country of the original court, and that if registered, the registration would not be liable to
be set aside under REJA.
(Order 67, rule 3, Rules of Court)
On the hearing date, the court will, if the application appears on its face to comply with REJA, grant leave to register the
same. The order for leave must state the period within which an application may be made to set aside the registration, and
that execution of the judgment will not be issued until the expiration of that period. Typically, the court will grant 14 to 21
days for such an application to be made. The order for leave to register the foreign judgment must be served on the judgment
debtor with a notice of registration.
The person serving the notice of registration must endorse the notice within three days after service (which is the date on
which the notice was served).
If an application to set aside the registration of the judgment is filed by the judgment debtor, the court will fix a hearing date
for the application. In such instance, execution of the judgment may not be levied until after such an application has been
finally determined.
Once a foreign judgment is registered or a domestic judgment is obtained, the foreign judgment can be enforced in the same
way as a domestic judgment. There are various ways a judgment may be enforced such as by commencing winding-up or
bankruptcy proceeding, garnishee proceedings or execution of a writ of seizure and sale.
Under common law, a judgment creditor can enforce a foreign judgment in the Malaysian courts by treating the judgment as
a statement of debt that is due. The judgment creditor must show that the court that issued the foreign judgment had
jurisdiction over the judgment debtor, the judgment was final and that the judgment sum is a liquid sum if the claim is made
in personam.
Alternative dispute resolution
30. What are the main alternative dispute resolution (ADR) methods used in your jurisdiction
to settle large commercial disputes? Is ADR used more in certain industries? What proportion
of large commercial disputes is settled through ADR?
The most common forms of alternative dispute resolution (ADR) in Malaysia are mediation, arbitration and adjudication.
Whilst there are no available statistics regarding disputes settled through ADR, it is fairly common and has become more
popular in recent years.
Mediation is a voluntary process governed by the Mediation Act 2012 (MA) in which communication and negotiations are
facilitated by a third party who acts as the mediator. Parties are free to appoint their own mediator but can request the
Malaysian Mediation Centre of the Bar Council (MMC) to appoint a qualified mediator from its panel if they are unable to
arrive at an agreement. Successful mediation will result in the agreements being recorded into writing in a settlement
agreement signed by the parties. Parties to unsuccessful mediation nevertheless may proceed to pursue litigation or
arbitration. Parties maintain full control of the outcome and procedure of mediation.
Arbitration is a private process of judicial determination by an independent third party who acts as an arbitrator that is

governed by the Arbitration Act 2005 (AA). Arbitration is similar to court proceedings in that the arbitrator decides the
outcome of the dispute like a judge but the parties have discretion to decide on the number of arbitrators, the appointment of
the arbitrator and the rules to be applied during the arbitration. An arbitration judgment is binding on the parties.
Adjudication is a process for the resolution of construction disputes, introduced by the Construction Industry Payment and
Adjudication Act 2012 (CIPAA) and is being increasingly used in construction disputes. An adjudication will be binding
unless it is set aside by the High Court (section 13, CIPAA) on any of the permitted grounds, which are:
• The subject matter of the decision is settled.
• The dispute has been decided on a final basis by arbitration or court proceedings, or by a written settlement agreement
between the parties.
(section 15, CIPAA)
A claimant may initiate adjudication proceedings by serving a written notice of adjudication containing the nature and
description of the dispute and the remedy sought together with any supporting document on the respondent. Upon receipt by
the respondent, an adjudicator will be appointed in the manner described in section 21 CIPAA.
An adjudicator may be appointed by agreement of the parties within ten days of service of the notice of adjudication by the
claimant or alternatively, by the Director of the Kuala Lumpur Regional Centre for Arbitration, either, upon the request of
either party to the dispute if no agreement may be achieved between the parties or upon the request of the parties in dispute.
Thereafter, and upon the filing of the adjudication claim, adjudication response and the adjudication reply, the adjudicator
will render his or her adjudication decision in writing within 45 days from the date on which the last pleadings were received.
31. Does ADR form part of court procedures or does it only apply if the parties agree? Can
courts compel the use of ADR?
ADR is not mandatory in Malaysia and it only applies if the parties agree. However, if there is an arbitration agreement
between the parties and one party brings the matter to court, the other party can apply to the court under section 10, AA to
stay the legal proceedings and refer the matter to arbitration.
32. How is evidence given in ADR? Can documents produced or admissions made during (or
for the purposes of) the ADR later be protected from disclosure by privilege? Is ADR
confidential?
For arbitration, parties may not disclose, publish or communicate any information about the arbitration award and the
proceedings (section 41A, AA). However, parties may reveal information relating to the arbitration in the following
circumstances:
• To protect or pursue a legal right or interest of one of the parties to the arbitration.

• To enforce or challenge the arbitration award.
• Mandatory disclosure to public authorities.
• Disclosure to a professional or any other advisers of one of the parties.
Mediation proceedings are confidential (section 15, MA), unless the parties consent to disclosure. Mediation communications
are privileged, unless:
• Privilege is expressly waived by the parties, the mediator and the non-party (that is, a party to whom such privilege
applies but who is not a party to the mediation process).
• The communication relates to a crime or an attempt to commit a crime or to conceal a crime.
• It is sought to prove or disprove a complaint of misconduct during the mediation process.
(Section 16, MA).
33. How are costs dealt with in ADR?
In arbitration, the arbitrator is vested with the discretion to order costs against either party (section 44, AA). The general rule
is that the costs will follow the outcome of the arbitration, that is, the unsuccessful party pays the costs of the successful party
and bears their own costs.
In mediation, parties are expected to bear the costs equally (section 17, MA).
34. What are the main bodies that offer ADR services in your jurisdiction?
The Asian International Arbitration Centre (AIAC) provides a neutral system to settle disputes in trade, commerce and
investment within the Asia-pacific region. The AIAC is a non-profit, non-governmental international arbitral institution
which has been accorded independence and certain privileges and immunities by the government of Malaysia for the
purposes of executing its functions as an independent, international organisation. The AIAC has established its own AIAC
Arbitration Rules, AIAC i-Arbitration Rules, AIAC Fast Track Rules and AIAC Mediation Rules.
The Malaysian Mediation Centre (MMC) is a body established through the Malaysian Bar Council to promote mediation as a
means of ADR and provide a proper avenue for successful ADR. The MMC offers mediation services, provides mediation
training for those interested in becoming mediators, and accredits and maintains a panel of mediators. Currently, the MMC
consists of lawyers who have completed their mediation training programmes and deals with civil, commercial and
matrimonial matters. The MMC intends to expand its scope to other matters in the future.
Proposals for reform

35. Are there any proposals for dispute resolution reform? If yes, when are they likely to come
into force?
There are currently no substantial proposals for dispute resolution reforms.
Contributor profiles
Daphne Koo
Rahmat Lim & Partners

T : +603 2299 3869
F:+603 2287 1278
E: daphne.koo@rahmatlim.com
W www.rahmatlim.com
Professional and academic qualifications. Law degree, University of London Programme, 2004; Legal Practice Certificate,
2005
Areas of practice. Arbitration; litigation; admiralty and maritime law; land reference proceedings; aviation law; corporate
and commercial litigation.
END OF DOCUMENT
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Litigation and enforcement in Malaysia: overview, Practical Law Country Q&A w-026-8363

Litigation and enforcement in Malaysia: overview

Country Q&A | Law stated as at 01-Jun-2020 | Malaysia

A Q&A guide to dispute resolution law in Malaysia.

This Q&A is part of the global guide to dispute resolution.

Main dispute resolution methods

Fees and funding

© 2020 Thomson Reuters. All rights reserved. 2

Main dispute resolution methods

Online dispute resolution is generally not available in the court system.

© 2020 Thomson Reuters. All rights reserved. 4

• The foreign lawyer has been instructed by an advocate or solicitor in Malaysia.

(Section 18, LPA.)

Fees and funding

© 2020 Thomson Reuters. All rights reserved. 5

• An agreed hourly rate.

The level of fees are guided by several factors, for example:

• The benefit of the service to the client.

• Novelty and difficulty of the question involved.

• Special position and seniority of lawyer involved.

(Rule 11 of the Legal Profession (Practice and Etiquette) Rules 1978).

• Public liability insurance.

• Product liability insurance.

• Professional indemnity insurance.

• Directors and officers liability insurance.

© 2020 Thomson Reuters. All rights reserved. 6

The are no pre-action conduct rules in Malaysia.

9. What are the main stages of typical court proceedings?

Notice to the defendant and defence

© 2020 Thomson Reuters. All rights reserved. 7

• Such determination will finally determine the entire cause or matter.

(Order 14A, ROC).

• Does not establish a reasonable cause of action.

• Is scandalous, frivolous or vexatious.

• May prejudice or delay the fair trial of the action.

• Is an abuse of the court’s process.

(Order 18 rule 19, ROC).

(Order 13, ROC).

A defendant may apply for security of costs on the following grounds:

• The claimant is ordinarily a resident out of the jurisdiction.

• The claimant’s address is not stated in the writ or is incorrectly stated.

© 2020 Thomson Reuters. All rights reserved. 9

(Order 23 rule 1, ROC 2012).

• Whether the claimant stands a reasonable chance of success.

• Whether the defendant’s application is oppressive towards the claimant.

• Any loss of funds of the claimant due to the defendant’s conduct.

• Whether it is a bona fide application by the defendant.

(Sir Lindsay Parkinson & Co v Triplan Ltd [1973] 2 All ER 273).

Availability and grounds

• Whether there is a serious question to be tried.

• Whether damages are an adequate remedy.

• The balance of convenience and whether it weighs in favour of the applicant.

© 2020 Thomson Reuters. All rights reserved. 10

prohibitory injunctions. The applicant must establish all of the following:

• The balance of hardship lies with the applicant.

(Gibb v Malaysia Building Society [1982] 1 MLJ 271).

Right to vary or discharge order and appeals

Availability and grounds

• The claimant must have an arguable case.

• The defendant must have assets within the jurisdiction.

Preferential right or lien

• There is a bona fide serious issue to be tried.

• The balance of convenience lies in favour of granting the injunction.

• That damages would not be an adequate remedy.