Counsel Beware!

This is a cautionary tale for all litigators/counsel, especially in the context of complex litigation involving voluminous authorities and intricate points of law. Counsel is expected to take active steps to remind the court of the correct state of the law, irrespective of whether it was raised previously by other parties.

In the recently released Grounds of Judgment in Dato Azizan & Ors v Concrete Parade (“FC Grounds”) at paragraphs [202] to [207], the Federal Court highlighted the “Role of Counsel in Making Submissions to the Courts” in respect of the citation of Indian High Court decision of Shanti Prasad Jain v. Kalinga Tubes (“Shanti Prasad”). Shanti Prasad was cited to the Court of Appeal (“CA”) in the following manner:-

1) The CA Appeal took place over a period of 15 months. Counsel for the Appellant in the CA cited the Indian High Court decision in December 2019;

2) Subsequently in February 2021, Counsel for one of the Respondents in the CA Appeal cited the Indian Supreme Court decision in its written submission and highlighted to the CA in oral argument that the Indian High Court decision had been overruled. Thereafter, no further reference or reliance was made by the Appellant on Shanti Prasad.

3) Notwithstanding that both the Supreme Court and High Court decisions in Shanti Prasad were before the court, when delivering its grounds of judgment in August 2021, the CA relied on the High Court decision.

In the circumstances, where it relates to the overruling of a decision, it may not be sufficient for one of the parties to bring it to the attention of the court during oral argument. Instead, it may also be necessary for Counsel to take active steps to restate (or reiterate) that the earlier decision has been overruled, before the court delivers its judgment, to ensure that the court does not erroneously rely on the overruled decision.

See grounds of judgment at:

https://tinyurl.com/3x4nkdbs