The right to file a lawsuit is one of the basic right since it allows people protecting their civil rights and liberties from offenses. In fact, people can file a lawsuit and the judicial power is supposed to protect rights and liberties of a person if they are violated somehow.

However, this right may be abused since, as a rule, to file a lawsuit people may need an assistance of a professional, which may be not always available or the qualification of such a professional is insufficient to win the lawsuit.

The monetary rewards that are granted to plaintiffs in malpractice lawsuits brought against doctors and other medical personnel by patients are often criticized since they are considered to be too high. In this respect, in order to define the amount of the reward, it is necessary to involve specialists working in the field of insurance who could calculate professional the financial losses of plaintiffs in the result of malpractice of doctors and other medical personnel.

However, views on this problem may vary. For instance, the amount of rewards may be considered insufficient because human life and health cannot be measured in material or financial terms. On the other hand, the amount of rewards may be considered excessive because they are based on purely hypothetical calculations since a patient could have died from a car accident shortly after the successful treatment, for instance and plaintiffs would not get any financial support from the patient at all. 

Justice is a moral concept

Based on ethics

As per his discretion

A judge gives verdict

To a wrong-doer

Courts punish

To a right-doer

Jury acquits

Plaintiff fights

Respondent defends

Legal theories

Lawyers understand

Combat in courts

Hears legal comments

Witnesses of parties

In dock stand

Proceeding move

Investigations go

Entire case’s speed

Goes slow-slow

Justice delayed is

Justice denied

Sometimes verdict comes

When a plaintiff dies

In order for any court to have jurisdiction over a case it needs subject matter jurisdiction as well as personal jurisdiction.  Subject matter jurisdiction has to do with the limitations on the types of cases a court can hear. Certain courts are empowered to hear kinds of disputes. Historically, all fifty states have general jurisdiction courts that have the power to hear any kind of dispute. Personal jurisdiction has to do with what courts have authority to hold a case against a defendant. Personal jurisdiction is based upon five principles: domicile, presence, consent, activities, and property. If a state has any one of these principles they have personal jurisdiction over the defendant and the case will be heard.

            Domicile means where the defendant lives or has its personal place of business in. An individual is considered domiciled in the state where they have their residence in. Corporations and business firms are domiciled in their principle place of business.

            A personal can be held under personal jurisdiction on the basis of presence. If a court document is delivered to the defendant in the state that they are present at, they are subject to jurisdiction of that state.

            Consent is when the defendant agrees to be under jurisdiction of the state that is agreed upon by both parties.

            Activities are related to the contacts a defendant has in a state. This is most directly correlated to business activities that are being done in a state from a company. These can be activities such as product production, marketing or selling of products, also money made from businesses with internet websites that do business in different states in the USA will have jurisdiction over the defendant based on activities.

            Personal jurisdiction can be granted on the bases of property. If the suit is directly related to a piece of property jurisdiction can be granted. (This is limited and changes on a case-by-case basis.)

In this case, all three potential courts (Virginia, Delaware, New York) have subject matter jurisdiction because they all have courts that can hear any type of case. This is because every state has courts with general jurisdiction and has the right to litigate any type of case.  The question then transforms into: “Which states have personal Jurisdiction over the defendant, ThinCo?”

The plaintiff Karla has the right to sue in Virginia or Delaware because the corporation is domiciled in these two states. The evidence for this is that ThinCo’s principle place of business is in Virginia, according to the fact pattern and, therefore, Virginia has personal jurisdiction over ThinCo. The company is incorporated in Delaware. This also means that ThinCo is considered domiciled in Delaware because they are incorporated there.

The plaintiff Karla has shown no efforts to sue the defendant by having a subpoena delivered to an executive in Virginia, Delaware, or New York according to the fact pattern. It is more likely the plaintiff will sue on a different personal jurisdiction principle.

ThinCo Corporation can be sued in either Virginia, Delaware or New York based on the consent principle. If the defendant, ThinCo agrees upon a place for the trial to take place, either state can have jurisdiction. The fact pattern does not show any attempts to grant consent on the case therefore it is irrelevant.

New York and Virginia both have personal jurisdiction over ThinCo because of the activities they take part in within these states. According to the fact pattern, ThinCo had a marketing campaign in New York in order to gain clients. The evidence for the marketing campaign is the newspaper advertisements ThinCo paid for. The advertisements enticed the plaintiff Karla to buy ThinCo’s product in a retail store in Binghamton, NY and is sufficient enough for a New York state court to agree that the defendant had minimum contacts in the state of New York. Also, New York has a statute that provides for jurisdiction over any nonresident who transacts any business or causes any injury within the state, which is very relevant according to the facts.

            Virginia has personal jurisdiction on the basis of activities as well because Virginia is ThinCo’s principle place of business and they are responsible for the plaintiff’s injury.

            This jurisdiction case has many potential routes it can go. To take this case, once again the court needs subject matter and personal jurisdiction over the defendant, which can be found in each state. Virginia has the ability to have jurisdiction over ThinCo because they are domiciled in Virginia (its principle place of business is in Virginia) and activities also for this same reason. Delaware has personal jurisdiction over the defendant because the company is considered domiciled in Delaware, as well. The evidence for this is that the corporation chose to incorporate in Delaware. New York has personal jurisdiction over the defendant based on the marketing activities they took part in New York. All three states could have the defendant under personal jurisdiction if they consent to have the trial in one of the states.

Damages for infringement of copy rights

By

S J Tubrazy

In an action for infringement of copyright it is not necessary to give proof of actual damage; the damages are at large. Even in a case where the only damage appearing is that the infringement complained of tends to vulgarize the plaintiff’s work, the plaintiff is entitled to nominal damages and costs. The damages assessed may include, in addition to the amount which would have been received by the plaintiff if he had himself been able to sell the copies sold by the defendant, a substantial sum for injury to trade by reason of the fact that the defendant’s price were lower than those usually charged by the plaintiff. Other relevant considerations in the assessment of damages are the profit which the plaintiff would have made and the licence fee that he would have charged.

The Court may award such additional damages as it may consider appropriate when it is satisfied that effective relief would not otherwise be available to the plaintiff having regard to the flagrancy of the infringement and any benefit shown to have accrued to the defendant by reason of the infringement.

As an alternative to damages a plaintiff may have an account of the profits made by the defendant by the use of his work; this remedy is an equitable remedy ancillary to an injunction, and the plaintiff must elect which remedy he will have. Damages may not be awarded where the infringement is shown to have been innocent.

Damages for infringement of copyright may be additional to damages in respect of some other cause of action arising from the same subject­-matter.

Explanation of the Order:

The Order 9 Rule 13 of the CPC enables the defendants to move an application to set aside the ex parte decree issued by the court due to the absence of the defendants in the court on non-hearing days. The defendant can move the application within three years to set aside the ex parte decree. If the defendant satisfies the court that he had not received the summons or another reason, then the ex parte decree will be set aside and the hearing of the case will begin.         

Common practice of Order 9 Rule 13:

To elaborate the common practice of the order 9 rule 13 which causes delay in the judgments of cases, it will be helpful to suppose a civil case “X versus Y” in a court where X is the plaintiff and Y is the defendant. A summon is issued from the court bringing it into the defendant’s notice that he has to be in the court on such date and time. If the defendant doesn’t appear before the court on that non hearing day (the absence on hearing days is treated differently which is not related to the topic) then according to the procedure laws different ways like newspapers are used to notify him. And if the defendant still doesn’t appear before than court than the court issues an ex parte decree in the favor of plaintiff.

Now the order 9 Rule 13 of the CPC enables the defendant to move an application to set aside the ex parte decree and according to the CPC and the limitations act the time limitation to move this application is maximum 3 years. Now what happens in real practice is that the defendant doesn’t appear before the court intentionally to prolong the case. and when the ex parte decree is issued then the he has a time limit of 3 years to move the application therefore he moves the application to set aside the decree after 2 and half years or 2 years and 11 months. This helps him to prolong the case and his absence and now the application just before the end of time limitation is mala fide and due to the bad intensions.

The sensitive spot:

if the defendant is not given the right to move the application and explain the reason of his absence in front of the court then it will be contradictory with audi alterum partem. Thus the right to explain the cause of his absence should be given to the defendant but when the right to explain the cause is given then the plaintiff has to wait for the whole limitation period i.e. 3 years because usually the defendant acts malafide and doesn’t move the application immediately and it is long enough that it will be unjust to start the case again after 3 years and this prolonged case wont do any justice with the plaintiff.

Diagnosis:

The discussion so far shows that the factor which causes the delay in the case judgments and provides opportunity to the defendant to act mala fide and prolong the case is the time limitation i.e. 3 years.

Suggestion:

There must be an amendment in the CPC and the Limitations Act regarding the time limitation for the defendant to move the application to set aside the ex parte decree, changing the limitation from a maximum of three years to 30 days. The current era is the era of technology and the tools of communication are fast enough to communicate a person thousands of miles away. The limitation of 30 days is enough to travel around the world in the modern day thus it doesn’t imply any impossible duty on the defendant.   Thus the limitation of three years only serves as a tool to prolong the case and to put a burden on the plaintiff.

Expected Results of the Suggested Amendment:

The prolonged cases and the delayed decisions of cases are unjust. The people have to follow the cases for years and the due to certain inefficient and weak spots in the law people with bad intentions are capable of entangling an innocent citizen in the prolonged cases which is the root cause of the agitation in the whole society. The people of a society can’t be loyal to the society and its rules when the rules and laws are not efficient enough to provide a timely and sufficient justice.

The above suggested amendments will help reducing the agitation in the society and strengthening the bonds and relations between the law and the society thus making the people in the society obedient and loyal to law.

Mode and manner of making of oath

 By

Shahzadi queen

The making of oath by the plaintiff is equivalent of an offer to and ultimate taking oath by the plaintiff (the matter admitting of such oath) if the defendant, on a request of the plaintiff, having been called upon to deny the plaintiffs claim on oath, principally (though not always) when the plaintiff has no (available or satisfactory) witnesses, failed to repudiate that claim on oath. Alternatively, upon the defendant taking an oath of repudiation, in cases where the plaintiff has no witnesses, the claim must fail, there being no necessity or relevance for the plaintiff to take any oath of his own whatever. The order in which the oaths are envisaged in Article 163, Qanun‑e‑Shahadat, 1984 is immaterial. The Qanun‑e‑Shahadat as its preamble will show, is designed to revise, amend ‑and consolidate the law of evidence so as to bring it in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah and the provisions thereof shall have effect notwithstanding anything contained in any other law for the time being in force, Article 165. No diametrically different interpretation of the Article would be permissible because in case it is only implemented literally and oath is pitched against oath not only the objective of enforcing the Islamic tenets would be defeated but the Article would itself become nugatory.

There is another issue to be tried in the performance bondwhether the plaintiff could claim LAD from the defendant as certified by the architect and whether the plaintiff could deduct the amount from the bank guarantee. In the case Pekeliling Triangle Sdn Bhd v. Chase Perdana Berhad, ( MLJU 511,20002)the plaintiff in this case made an application for an interim injunction restraining the defendant or its agent from withdrawing a sum amounting to RM55, 836,000.00 from bank. Therefore, the plaintiff had to show the existence of serious questions to be tried. The stated amount was sought by the plaintiff not to be released from the bank.

According to Clause 22 of the said agreement any claim of LADby the plaintiff against the defendant is deducting from monies due or to become due to the defendant. But the defendant seriously disputed the right of plaintiff to make such deduction. Hence it becomes a serious issue to be tried. Secondly, the issue is whether or not the defendant had fully completed the works which would warrant the architect to issue a Certificate of Completion.

The balance of convenience liesin favour of granting the plaintiff the relief sought. It must be emphasized that the plaintiff at this stage is not asking for the sum to be released to the plaintiff. It merely wanted the money to continue to be kept in the bank until its claim for LAD is determined. As such if the plaintiff’s claim for it should fail, the defendant would be free to withdraw the money from the bank on proof that it had actually completed the said works.

The case of Isyoda (M) Sdn Bhd v. Mimos Bhd,( MLJ 225,2000)the plaintiff failed to complete the works under the project on the determined date. According to condition of the bond, if the plaintiff fail to exercise or breached the contract, the defendant will give guarantor the opportunity to discuss before a decision is made. Clause 2 provides that guarantor must pay damages to the defendant the bond profit within three months after receiving the notice of demand from the defendant which justified any breach by the plaintiff towards his duty under the contract. The plaintiff objected to the defendant’s action to call upon the bond on the ground that the works under the project had been completed and claimed the defendant was indebted to them. The defendant denied the allegations and insisted that due to the plaintiff’s delay in completing the works; they were entitled to claim the bond profit.

The court dismissed the plaintiff’s applicationbecause the determining issue whether the plaintiff or the defendant had breached the contract was not an issue. It was not proper if equitable consideration was used to restrain a beneficiary from claiming profit under a performance bond except where there is fraud. In this case, the issue of fraud was not raised. The plaintiff’s allegation that the defendant was indebted to them which was considered by the defendant as a serious matter should be adjudicated between them. As such, the court could not see how the balance of adaptability favoured the injunction prayed for. Furthermore, even if the judgment of the court in the originating summons or the decision of the arbitrator favours the plaintiff, damages would be an adequate remedy.

In the case of Ten Engineering Sdn Bhd v. Resort Villa Development Sdn Bhd & Anor, ( MLJU 734,2002)where the plaintiff argued that the first defendant has breach the contract by giving the possession on site not in the stipulated date. The plaintiff alleged that the first defendant’s action brought the various changes of the date of completion in informal agreement. The defendant also be contended on the late payment and terminated the subcontractor for certain works.

Referred to the both affidavit, there were serious issues to be tried. It was clearly that the project delayed in one and half years and the argument is who should responsible on this delayed. There also an allegation which contended that this delay comes from the financial difficulty by plaintiff who not affords to pay his workers and suppliers.

Another circumstances occurred in the case of Daewoo Engineering & Construction Co. Ltd v. The Titular Roman Catholic Archibishop of Kuala Lumpur( MLJ 136,2004) where the plaintiff contended that there are serious issues to be tried as follows: (i) the defendant had not given the plaintiff any opportunity or adequate opportunity to agree on the existence and causation of the alleged damage and the remedial works to be done, costs of these works, and given an opportunity to carry out these works; (ii) the demand is based upon the fact that the plaintiff failed to renew the guarantee and not upon damage to the defendant’s property; (iii) the bulk of the sum claimed as damages are in fact estimates of future loss and do not take into account the possibility that any damage may have been caused by the defendant’s own substantial construction itself. These breaches of contract actions are clearly bona fide triable issues for this court to decide as enumerated above. At this interlocutory stage of the proceedings, it is not the function of the court to come to any specific findings of facts or conclusion. As long as it is not frivolous or vexatious these should be dealt with at the trial.

The question whether or not an injunction should be granted was determined solely by asking such questions as these. Is the plaintiff’s undertaking in damages adequate? Is remedy in damages against the defendants adequate?

In the case of PDE Consulting Services (supra) there is an issue whether damages would be an adequate remedy, the court is satisfied that although the plaintiff’s claim against the defendant is ostensibly for declaratory and injunctive relief’s, it is substantially a claim founded on the defendant’s alleged breach of contract and, therefore, the plaintiff can be adequately compensated by an award of damages in favour of the plaintiff at the conclusion of the trial.

Having considered that there are no facts forthcoming from the plaintiff to support its contention that the plaintiff would suffer irreparable harm or damage because its reputation would be seriously injured by the refusal of the court to grant the injunction sought for, the court is satisfied that an award of damages would be an adequate remedy for the plaintiff.

In the case Bains Harding (Malaysia) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Bhd & Ors, (MLJ 425, 1996) Further, damages would not be an adequate remedy to the plaintiff because if the defendants were allowed to call on the bank guarantees and the bank made payment, the plaintiff might not be able to reimburse the bank, as it had been deprived of the profits it would have earned had the contract not been terminated. That would expose the plaintiff to being wound up. The balance of convenience favoured the plaintiff.

In the event the plaintiff suffered losses as a result of the bank releasing the money to the first defendant under the performance bond, the defendant would be adequately compensated by damages through a civil suit. In other words, there are alternative remedies available to the plaintiff, if at all it suffers damages. It is well-settled law that in cases where there is alternative remedies available, injunction is not an appropriate order to be granted: HSH Engineering & Construction (supra).

An in the case of IJM Construction (supra) the court stated that two major factors propelled it in favour of the plaintiff. Firstly, the issue of “damage to reputation”; and, secondly, that there was a very strong prima facie case that the performance bond was invalid and void. The “balance of justice” should be the guiding force and applying that phrase generously to the factual matrix of the case, the judge order that the interlocutory injunction to continue until the conclusion of the trial or the conclusion of the arbitration whichever was relevant. That order is in favour of the plaintiff.

It could be concluded that, the court will preventing to grant the injunction on performance bond if there is an alternative remedy for damages which adequate to compensate by the innocent party. But, it was different circumstances if the calling of performance bond by default party will give huge impact to another party. The impact might be considered by the court if there is evidence which showed that insolvency will be faced by the innocent party.

By

 S J Tubrazy

This was a case in which the plaintiff had opened an account with the defendants who were stockbrokers. The defendants were to buy and sell stocks and shares for the plaintiff. On May 11, 1901, it was agreed between the plaintiff and the defendants that certain contracts for the purchase of stocks, which had been made by the defendants on the plaintiffs account for settlement in the middle of May, should be carried over to the following settlement which was to take place on May 28 and 29. The defendants, however, in breach of the said agreement, sold the stocks which they had bought for the plaintiff and closed his account on 16 May. The plaintiff sued the defendants and claimed the highest prices which the sold stocks could have realized at any time during the currency of his account. It was argued on behalf of the defendants that damages could only be assessed with reference to the price which prevailed either on the date of the breach of agreement i.e. on May 16 when the defendants closed the plaintiffs account or on May 29 at which date the account would have closed in accordance with the agreement with the plaintiff. It was specifically urged that it was not for the plaintiff to select any intermediate date which was most unfavourable to the defendants on the fictitious assumption that he would have given instructions for sale, to the brokers at the time when the price was highest. Wills, J. held that the plaintiff was entitled to the highest prices which were obtainable during the period during which he had the option of selling. I am in respectful agreement with the reasoning which led to the aforesaid conclusion, and can do no better than to reproduce the same. The learned Judge said:–

The only matter that I have to deal with in this case is the measure of damages. The plaintiff had entered into a contract with the defendants, whereby the defendants were to purchase shares on his behalf. The defendants in pursuance of that contract had purchased various shares on the plaintiffs behalf, and the plaintiff was entitled to have those shares delivered to hint on the settling day on payment of certain prices. The defendants further by their contract undertook that they would at any time before the settling day, if directed to do so by the plaintiff, sell the same shares for the plaintiff. This they did not do, but repudiated their contract, and put an end to it. Under those circumstances it seems to me that the plaintiff is entitled to all the advantages that would have been his or that might have been his if the contract had been carried out. Amongst those advantages was the right to sell the shares whenever he chose during the period over which the transactions were to run, and at different times different prices might have been realized. No doubt the plaintiff would in fact never have realized the best prices that ruled, during that period. But I think I am right in saying that the Courts have never allowed the improbability of the plaintiffs obtaining the highest prices to be taken into consideration for the purpose of reducing the damages. The defendants are wrong-doers, and every presumption is to be made against them.