Thursday, December 11, 2008

Email Question: Civil Procedure in Court

I got this email asking about litigation procedure in court, my answer would in between the question in red (to save my time)… sorry.

Dear Kamarul,

your interesting legal blog after a search.
I am happy to find your blog giving free information & discussion.

Here I have just a few direct questions:

I attended my 1st mention due to a summon on my personal debt to a bank.
I noticed my loan number is wrong (one digit incorrect) - so I told the magistrate
that I can't admit because the number is faulty. The court then set the 2nd mention
and when I attended again, the amendment was not done because it was overlooked.
The bank lawyer then applied for amendment to be fixed on 31st Dec 2008.

The question here - is it correct for the amendment to be made first before
my 3rd mention is fixed? Actually, the 31st Dec 2008 - as far as I know is fixed for
the bank lawyer to apply for amendment - am I correct? If I am not wrong, the lawyer
told me that after the amendment is made, he will then apply for the 3rd mention
and inform me by post.

Answer: Any intended amendment in summons or statement of claims or any other court papers could be made via a formal application (either orally or by notice of application) in the event that you object to an oral application, the poor lawyer has to file in his notice of application to amend the mistake. So I believe in your case he has yet to file in the notice of application to amend the mistake.

Once the notice is filed, the court will fix a date to hear the application whether to allow or to deny the amendment, (simple typo error would pass easily)

So it doesn't matter how many mention dates it would take to hear and allow the amendments…it is all part of the tedious court process…

In your case, when you attended the court and yet the lawyer is yet to file the application to amend, you may ask for cost of the day! For wasting your time and court…huhuhu. One more thing, being defendant, never trust your opponent always attend court to know what happen in court.. you might be surprise to know that a judgment has been obtained against you while you are absent.

Recently, I received a letter from the bank lawyer asking me to attend the
court on the same date, 31st Dec - but this letter is not stamped by the court -
neither is there any document posted to me saying that the amendment is done.
I receive no mention of the official amendment done in black & white.

Do I have the right to receive the official amendment before attending the
next mention? Maybe the bank lawyer just instructed me without authority
from the court to attend on the 31st Dec 2008 and expect me to admit the claim
when the amendment is done probably on that day.

Answer: court will not send letter to you to attend on next hearing dates, I will too much for them to handle if that is the case for all! You have to note on your own your next date when given by court while attending.

So, when you attend the mention, please check whether the amendment is properly done, and if so, you have the right to be served again (after dully amended and sealed).. if all is done, now it is up you whether to admit the claim or to get another mention date to file your defense

Is this the correct legal procedure without me receiving the official amendment
(stamped by the court) first? I may not hire a lawyer as I can't afford. Even if I want
to seek lawyer's advice, I would need the amendment copy/letter delivered to me first.

Having said all of the above, in what way can I postpone the case? Should I attend
on the 31st Dec 2008 when the court did not ask me to attend during my 2nd mention?
The date is actually fixed for carrying out the amendment. 

Answer: it is unethical for me to advise you how to postpone your case without a valid reason, but if you have a valid defense then all you can do is to ask for another date for you to file your defense.

Really appreciate your advice. Thank you.



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