Research skills

1. Presented by:
Mavinthra Jothy Thillainathan (Senior Associate)
E: mjt@thomasphilip.com.my
28th November 2020 (Saturday)
THOMAS PHILIP PRESENTS
CrashCourse:
Legal Research for
Paralegals

2. ❖ Introduction to the Litigation Process
❖ Purpose of Doing Research
❖ Research Strategies
❖ Research Sources
❖ Research Methods
❖ Research Presentation Method
❖ Research Assignment
Contents

3. a) Pre-action conduct – for e.g. service of letter of demand,
filing of pre-action discovery
a) Commencement of proceedings – filing of writ and
statement of claim or originating summons
a) Interim remedies – for e.g. filing of applications for
injunction, striking out, security for costs
a) Pre-trial compliance – for e.g. filing of common bundle of
documents, witness statements
Introduction to the Litigation Process

4. Introduction to the Litigation Process
e) Trial – cross-examination and reexamination of
witnesses etc.
f) Submissions – written arguments filed either post-
trial or in support of applications/motions/appeals
g) Hearing – for post-trial purposes, applications,
motions or appeals. Usually involves oral arguments
h) Judgment – decision delivered by the respective
judge(s)

5. Introduction to the Litigation Process
i) Settlement – resolution of disputes without the need
for court proceedings
j) Enforcement proceedings – garnishee, writ of
seizure and sale, judgment debtor summons etc.

6. Research is relevant at every stage of the litigation
process
Research is required so that, among others:
a) You are aware of the accurate position of the law
b) You are able to properly advise your client(s)
c) You are able to decide whether, and if so how, to
commence/defend an action. Would limitation be an
issue for instance?
d) Your written submissions are well-supported by good
authorities
Purpose of Doing Research

7. 1. Understand the content of the research question(s)
posed to you
1. Understand the ambit of the research question (s).
For instance, in the context of the tort of
negligence, are you asked to research on duty of
care or breach of duty of care?
1. Understand the purpose for which the research
question(s) is/are posed. In this regard:
Research Strategies

8. a) Is the research required for purposes of drafting
submissions or for the preparation of an
article/webinar?
a) Are you only asked to provide the top few appellate
decisions on a particular area?
a) Are you asked to look for cases that would
distinguish/rebut a set of given authorities?
Research Strategies

9. d) Are you asked to look for cases citing a particular
section of a statute only?
d) Are you asked to provide cases from foreign
jurisdictions only?
d) Are you asked to prepare a general write-up on a
specific area of law?
Research Strategies

10. Research Sources
a) Textbooks on a particular subject matter
b) Statutes
c) Caselaw – local and foreign.
• Mallal’s Digest
• Legal databases such as CLJ, Lexis Nexis,
Westlaw
d) Factual research

11. Research Sources
a) Textbooks
• Substantive law
- Halsbury’s Laws of England and Malaysia
- For contract: Chitty on Contracts, Lewison’s “The
Interpretation of Contracts”
- For defamation: Gatley on Libel and Slander

12. Research Sources
• Procedural law
- Bullen & Leake & Jacob’s on Precedents of Pleadings
- Atkin’s Court Forms
- Annotated Rules of Court 2012, Rules of the Court of
Appeal 1994, Rules of the Federal Court 1995, the White
Book
- Malaysian Court Practice: Trial Courts and Appellate
Court

13. Research Sources
b) Statutes
- Federal statutes can be found on Government websites such
as the AGC and the Federal Gazette websites.
oAGC Website -
http://www.agc.gov.my/agcportal/index.php?r=portal2/lo
m&menu_id=b21XYmExVUhFOE4wempZdE1vNUVKd
z09
oFederal Gazette Website -
http://www.federalgazette.agc.gov.my/

14. Research Sources
- For state legislation, you can look at Sabah and Sarawak AGC
websites, DUN Selangor’s website etc.
o Sabah AGC Website - https://sagc.sabah.gov.my/?q=en/law-
type/sabah-laws
o Sarawak AGC Website -
https://sag.sarawak.gov.my/modules/web/index.php?lang=en
(Note: access to Sarawak laws requires a subscription to
LawNet)
o Selangor DUN Website -
http://dewan.selangor.gov.my/enakmen/

15. Research Sources
- Search engines: Lexis Advance, CLJ, LawNet (if you’re a
subscriber to this)
oFor Lexis, there is access to Annotated Statutes of
Malaysia which provides you commentary relating to the
particular section of a statutes and the Unannotated
Statutes of Malaysia. These apply only to federal statutes.
oFor CLJ, you get access to a breakdown of the provisions
of the statute and a list of cases that refer to those
provisions.

16. Research Sources
c) Caselaw
- Mallal’s Digest to look for a list of cases on a specific
subject matter such as stay of execution
- Legal databases such as CLJ, Lexis Nexis, Westlaw.

17. Research Sources
- Malaysian cases
oHigh Court to Federal Court and certain Privy Council cases on
MLJ and MLJU on Lexis
oHigh Court to Federal Court cases on CLJ and LNS
oAll Malaysia Reports (AMR) and Personal Injury Reports (PIR)
on Westlaw

18. Research Sources
d) Factual research
∙ Law Firms
When tasked to find general information about law firms, or inter alia, to prepare
service letters, the main point of reference should be the Malaysian Bar website.
Steps:
a. Go to https://www.malaysianbar.org.my/article/find/legal-directories/lawyer-or-law-
firm/lawyer-or-law-firm
b. Click Legal Directory -> Type the name of the law firm (or lawyer, if applicable)
c. Information that can be obtained: Address, telephone number, fax number and list of
lawyers.

19. Research Sources
∙ Company Search with Suruhanjaya Syarikat Malaysia (SSM) /
Companies Commission of Malaysia (CCM)
An SSM search is used to find out facts such as the company’s
financial health, the company’s shareholders and directors etc.

20. Research Sources
Information that can be obtained from SSM:
a. Company name
b.Company registration number
c. Incorporation date
d.Registered address
e. Business address
f. Nature of business
g.Total share capital and type of shares issued
h.List of directors and their date of appointment, including their addresses and IC
numbers
i. List of shareholders
j. List of company charges and whether they have been satisfied
k.Summary of financial information

21. Research Sources
∙ CTOS search
CTOS is a credit reporting agency regulated by the Registrar of Credit
Reporting Agencies, Ministry of Finance under the ambit of the Credit
Reporting Agencies Act 2010. In essence, CTOS collects information related to
the creditworthiness of individuals and businesses and produces complete
portfolios of credit risk management solutions and services.
A CTOS search is typically done in order to ascertain the financial worthiness
of an individual or company and whether they have been or are subject to legal
actions, bankruptcy and/or winding up proceedings.

22. Research Sources
Example of information that can be obtained from a CTOS search
on an individual:
a.CTOS Litigation Index
b.Top 5 directorships and business interests – This section can be used
to verify an individual’s ostensible income.
c.Banking payment records – This section displays an individual’s
payment behaviour in respect of outstanding credit facilities.
d.Dishonoured cheques
e.Legal cases (whether as a defendant or plaintiff)
f. Trade reference

23. Research Sources
∙ Land search
If there is a sale or dispute concerning land or property, it is
important to conduct an official land search with the
relevant land registry to verify the particulars of the title
first. Thus, if a particular land is situated in Penang, you
should conduct a land search with the Penang Land Office
(Pejabat Tanah dan Galian Pulau Pinang).

24. Research Sources
Information that can be obtained from a land search:
a. Title Particulars
b. Whether the land / property is a leasehold or freehold
c. Whether the land is Malay reserved
d. Category of land use – For example, the land must be used for business purposes
only.
e. Current registered owner of the land – This section is crucial when advising a client
on the purchase of land, to confirm that the name and identification of the registered
owner corresponds to that of the vendor.
f. Whether there are any encumbrances on the land
g. Any possible restrictions in interest
h. Size of land
Note: Full title details of the land/property is required to conduct a land search. Title
details can usually be obtained from a sale and purchase agreement, quit rent receipt
or an individual/strata title deed.

25. Research Sources
∙ Solvency status
In order to confirm whether an individual has been adjudicated
bankrupt, or a company has been wound up, you can also conduct a
bankruptcy or winding up search with the Malaysian Department of
Insolvency (MDI).

26. Research Sources
∙ Use of Social Media, Websites and Newspapers
These sources are also imperative as part of the fact-finding
process. For example, before meeting a new client, it is good to read
up materials online to understand the client’s legal issue better
before you meet the client. Alternatively, a client may request that
you dig up information on a particular person. In this regard, you
can start by looking up information on Facebook and/or LinkedIn.
You can also Google a person’s name to see if he/she has been
mentioned in any articles or websites. If a person has been involved
in litigation before, it may be worth looking up his/her name in
legal databases such as Lexis Nexis.

27. Research Methods
a) Establish a logical research “flow”
- Topic: Eviction Proceedings in a Landlord and Tenant dispute. You
should start with:
oReading textbook commentary on the matter:
▪ Halsbury’s
▪ The White Book Volume 1 and 2
▪ Textbooks on the specific area of law

28. Research Methods
o Checking the relevant statute applicable i.e. Specific Relief Act, section 7(2)
(accessible on AGC’s website). This can then be branched off to:
▪ Commentary on the Annotated Malaysian Statutes
▪ Cases cited in the commentary.
▪ Further local cases that specifically referred to this provision in CLJ. Note:
CLJ offers case updates on their home page and you should keep an eye
out on this.
▪ On the analysis of these cases, analyse the foreign cases that may have
been cited with approval
o Rules of Court 2012 to check the procedures connected to eviction i.e. the
rules relating to vacant possession
▪ Cases that cite the relevant Order.
▪ Commentary on the application of the Order in the White Book
▪ Commentary from the English Rules of the Supreme Court

29. Research Methods
b) Use appropriate key word searches in legal databases such as Lexis Nexis
Connectors Function Example
AND To find cases with both words
only. Note: Both words can
appear anywhere in the same
document.
res judicata AND new
grounds
We agree with counsel for
the appellant that
respondents cannot raise
these new grounds, regarding
which nothing was
mentioned in the court below
to support their contention
that res judicata applies.”

30. Research Methods
Connectors Function Example
OR To find cases with either one
word or both words.
medicine OR tort
“…” Treats the words in quotes as a
phrase, and will find cases using
the exact order of the words.
“standard of care”
Result: The issue of the
applicable standard of care has
no bearing (learned counsel
cited Charlesworth & Percy on
Negligence (11th Ed) at para
4-01; Majlis Perbandaran
Ampang Jaya v Steven Phoa
Cheng Loon & Ors [2006] 2
MLJ 389; [2006] 2 CLJ 1 at
para [21] per Steve Shim).
Leave questions 1 and 2 should
be answered in the negative.”

31. Research Methods
Connectors Function Example
w/s To find cases where the search
words can be found in the same
sentence.
relevancy w/s trial
Result: “[25] We have read the
proposed amendments at
paragraphs 33(a), 33(b), 33(c),
33(d) and 33(e) and we found
them to contain particulars of
the evidence which could be led
in open court through witnesses
and they ought to be reserved
for the trial judge to determine
its relevancy and admissibility
in the course of the trial.”

32. Research Methods
Connectors Function Example
w/p To find cases where the search
words can be found in the same
paragraph.
“no person shall” w/p
“interpret”
Result: “One of the functions of
the courts is to interpret the law.
An inherent part of their
function is to see that the
executive acts within the law
and does not encroach
unnecessarily into the realm of
liberty of the subject. In fact, art
5(1) of the Constitution
guarantees that no person shall
be deprived of his liberty except
in accordance with the law….

33. Research Methods
Connectors Function Example
[section number]
pre/5 [statute name]
To find cases citing a particular
section of an Act.
101 pre/5 evidence act
Result: “[40] Under s.101 of
the Evidence Act
1950 “Whoever desires any
court to give judgment as to
any of its legal right or liability
….must prove that those facts
exist”. Therefore, the burden of
proof is on the Defendant to
show that the Agreement was
approved by the Plaintiff in its
AGM by “resolution”
under s.45(5), or even by a
“certificate” issued by the
Plaintiff under s.45(4), of
the STA.”

34. Research Methods
Connectors Function Example
! To find cases which complete or
expand the verb, used after word
endings.
vacat!
Results: vacation, vacate,
vacated, vacating, vacates, etc.
(o! pre/1 order number)
pre/1 (r! pre/1 rule
number)
To find cases on the Rules of Court
2012 / Rules of High Court 1980
etc.
(o! pre/1 14) pre/1 (r! pre/1 1)
Result: “In encl (43), the plaintiff
is seeking summary judgment
against the defendant
under O 14 r 1 of the Rules of
Court 2012 (‘the ROC 2012’) on
the following grounds…”

35. Research Methods
c) When reading caselaw, check that you have accurately
captured the ratio decidendi of the cases.
d) Make sure cases that are cited have not been overruled.

36. Research Presentation Method
Suggested presentation method:
a) Set out the research question(s) posed
a) Set out the conclusion(s) at the outset
a) Cite relevant statutes/cases
a) Reproduce relevant paragraphs in authorities cited
a) Analyze the authorities cited – deliver both good news
and bad news

37. Research Assignment
A Court of Appeal judgment was entered against your
client to his detriment. In the upshot, your client is asked
to pay RM 4 million to the opposing party pursuant to the
Court of Appeal judgment. Your client has filed a motion
for leave to appeal against the said judgment in the
Federal Court. Your client, however, intends to stay the
execution of the Court of Appeal judgment pending the
leave to appeal proceedings. Please answer the
following:

38. Research Assignment
a) What proceedings should you advise your client to file?
a) What is the test that your client needs to fulfill to succeed in
those proceedings?
a) What are the relevant sections of the statute/rules involved?
Hint: Courts of Judicature Act 1964, Rules of Court of
Appeal 1994.
a) Which court should your client file the relevant proceedings
in?

39. THANK YOU
Question & Answer Session