It was a defamation case in a High Court up north sometime in my tenth year of practice. The one time I was there was my only appearance, ever.
I was assigned to do the trial since my colleague who prepared the case had left the firm. Thankfully, he was the diligent sort. It meant he kept a good record of the file and kept it in a sensible order. That always made take over of a file a stress-free and smooth one. We acted for the defendant.
I flew up the night before. Read the file again. Went to bed. After breakfast, it was straight to court. I was there at half to nine. We had two witnesses. The plaintiff was one, the defendant another. Witness statements were ready to be sworn in. The relevant bundles and statements were filed and served. We were all ready to proceed. I felt if we had a clear two hours, we could finish it off.
Our case was eventually called up at close to noon, after the criminal mentions, civil mentions and application hearings. I wondered how long our trial was expected to go on for since it was close to lunch.
‘Are parties ready?’
‘Yes, my lord,’ replied the plaintiff’s lawyer and me in unison.
‘Are the bundles marked?’
‘No, my lord,’ said the plaintiff’s lawyer.
‘Let’s mark it before we start.’
‘Very well, my lord.’
‘Okay, Bundle of Pleadings. Mark as A. Bundle of Documents, Part B. B. Plaintiff’s bundle of documents. C. Defendant’s bundle of documents. D. These last two are Part C, is it? Disputed?’
‘Yes, my lord,’ we said in unison.
‘Okay. Statement of Agreed Facts. Mark as E. Statement of Issues to be Tried. F. Plaintiff’s witness statement… Eh.’ The judge frowned. He flipped the papers in his file to and fro.
‘My lord, may I be of assistance?’ ventured the plaintiff’s lawyer.
‘Yes, counsel. Where is your Statement of Non-Agreed Facts?’
‘Statement of Non-Agreed Facts, my lord?’
If I were in his shoes, that would have been my precise response. I would like to think I was a somewhat seasoned litigator by then. I litigated all across Peninsular Malaysia at courts of every level and conducted numerous trials but I had never before heard of such a statement before, never mind preparing one.
I quickly paged through my file to look for any record directing us to prepare a Statement of Non-Agreed Facts at the previous mention (case management) dates. There was nothing. Just the usual directions requiring us to produce what the judge had enumerated.
‘Yes, the Statement of Non-Agreed Facts. It’s the one that states what the disputed facts are.’
I had the sense that this was the precise moment when the hairline crack in the plaintiff’s case manifested. The plaintiff’s lawyer turned to look at me. He had an anxious look on his face. He mouthed to the effect, ‘What statement is he talking about?’
I did the only thing I could; I wrinkled my chin as I shrugged. After all, I was still wrapping my head around that concept. I was just grateful not to be on that end of that exchange as I processed the emergence of a new legal instrument.
‘If you don’t have a Statement of Non-Agreed Facts, that means there are no disputed facts. All facts are agreed. That’s what it means.’
I could see how this was going to end.
‘But my lord, I don’t recall being given directions to prepare such a statement. I think my learned friend can…’
‘Counsel. I direct that for my cases. I am hearing this case. You would have received directions to prepare it.’
‘My lord, I, I, we didn’t prepare one. If we were directed, we would have prepared. My learned freh…,’ said the plaintiff’s lawyer as he threw glances at me and raised his arm to introduce me into the conversation.
‘No, no. Either you filed it or you didn’t file it.’
‘We didn’t file it. But my lorh…’
‘Okay, didn’t file the Statement of Non-Agreed Facts,’ the judge deliberately spoke over him as he wrote it down. The judge went on writing but did not enunciate what he wrote anymore.
The plaintiff’s lawyer felt growingly awkward from the silence. He was still on his feet. I saw him struggling to decide whether to speak. His hands fidgeted. He frowned and bit at his lower lip with his upper teeth. After a good two minutes, he spoke up.
‘My lord, if I may, the witnesses are both here today. The defendant and his counsel have flown in today for the trial. I have discussed it with my learned friend. We will only take a maximum of two hours. The witness statements are prepared.’
The judge looked up.
‘Okay. We will swear in their witness statements.’
The plaintiff’s lawyer looked relieved.
‘But there will be no cross since all facts are agreed,’ continued the judge.
The plaintiff’s lawyer’s relief turned to horror.
‘My lord, if I may, there are disputed facts. Both of us are ready to cross today. There is a statement of issues to be tried. That’s bundle F. Also, my lord, we marked the disputed bundle of documents just now, bundles C and D. That shows that there are disputed materials.’
‘No. We will just swear the witness statements, no cross.’
‘But, my lord…’
‘What is your claim?’
‘Uhm. Defamation, my lord.’
‘Yes. What are the ingredients?’
‘Uh, defamatory statement, reference to plaintiff and publication.’
‘Are the publication and reference disputed?’
‘No, my lord.’
‘So what is left?’
‘Whether the statement is defamatory.’
‘Yes. Do I need evidence for that?’
‘I submit the evidence would inform my lord’s consideration when evaluating that statement.’
‘No. Let’s start with the plaintiff’s witness.’
And off we went. We swore in and marked the defendant’s witness statement after the plaintiff’s. The schedule for filing and serving of submissions was set. A decision date was fixed. The court adjourned for lunch. I told my witness he didn’t have to get into the witness box. He was elated. He was nervous all morning about it as it was his first time in court ever.
I felt sorry for the plaintiff’s lawyer. That’s gravity for you. I knew what it felt like in those shoes. I can sense the current and appreciate how hard it is to swim against it. But in court as in water, it is best to stay out of someone’s current, lest we get pulled into it.
The plaintiff’s claim was dismissed with costs. He did not appeal. I did not attend the decision. I had someone mention on my behalf to take the decision.
That was the first and last time I ever encountered a Statement of Non-Agreed Facts for any matter, civil or criminal.
Perhaps, I just haven’t been in practice long enough.