The Virago and her Handbag
Justice Prasad Abraham, the retired Federal Court Judge, once again trots out his third recollection of his days at the Bar. Here he recalls a fearsome opponent, and more pointedly, the significant contents of her large handbag.
Courtesy is the hallmark of the Bar. Especially to your opponent. Truthfulness is an indispensable virtue in legal practice. You cannot be economical with it.
The following anecdote – a true event – brings this to the fore.
Some of the greatest life-and-death struggles are not confined to the higher courts. Even a hearing before a humble registrar of the High Court is not without drama.
Senior Assistant Registrars (‘SARs’) are akin to a judge’s assistant. A great many hearings occur before them. They could, under rather limited circumstances, exercise the powers of a judge.
SARs routinely deal with ‘summary judgement applications’. Let me explain what this is.
Suppose a man files a case. He is the plaintiff.
He thinks the defence has no answer to his claim.
He doesn’t wait around for a trial.
The law allows him to take a shortcut. He is allowed to file a ‘Summary Judgement Application’. By it, he asks the court for a direct order in his favour.
Banks do it all the time.
The plaintiff files all his evidence in court through sworn statements called ‘affidavits’.
The defendant files his defence evidence. The SAR reads through all the papers.
Then she holds a ‘hearing’, where she hears counsel from both sides.
If the plaintiff convinces her, the SAR orders a ‘Summary Judgement’. It means the plaintiff has won.
If she feels the defendant has a good defence, she’d declare ‘there is a Triable Issue’. This means the defendant will be given a chance to prove his defence at a trial. He gets a second chance.
At the trial the plaintiff has to prove his case with witnesses, documents and arguments – he has to go the whole hog.
This story is about such an application. In one such case, I represented a plaintiff. He claimed for the return of the monies he had loaned to the defendant.
When the defence lawyer turned up toting a handbag the size of a small coffin, I attempted to exchange pleasantries with her.
It resulted in injured feelings – mine.
All hope of having a peaceful hearing disappeared.
When the case was called up, she walked into chambers with all the grace of a bovine stampede.
Her countenance might have driven fear into a raging bull.
She heaved her handbag and placed it between her and me, like the Berlin Wall.
The SAR invited me to present my case.
As I began to speak, the SAR’s chambers felt increasingly stifling, dark and foreboding. And this ominous cloud loomed, it seemed to me, from the other side of the Berlin Wall.
I adopted a time-tested, formulaic approach.
I established the basic facts.
Pointing out exhibits and documents, I tied the facts to the available evidence.
Finally I finished with the formulaic phrase,
‘The Defendant has no defence whatsoever’.
‘Therefore’ said I, ‘could Your Honour grant an order in terms?’
Virago erupted into action.
She cast her handbag upon the floor with a thud.
She turned her furious face in my direction.
Sparks flew from her eyes. ‘Is this what’s called a ‘full broadside?’ I wondered.
Her idea of legal argument was to convert chambers into a battlefield.
She heaped scorn on the plaintiff’s case.
Her arguments, which were lengthy, spirited, and directionless, were a tour of the African savanna.
The SAR listened in incredulous silence.
Virago argued the Application ought to be dismissed because the plaintiff had ‘… written an incriminating letter to the Defendant’.
She said this ‘created a triable issue’.
‘Please throw out this frivolous Application and restore the file to trial, Your Honour’ she cried.
‘And I want costs, oh yes. Costs’, she growled, tapping the tabletop.
When she stopped, keeping a cautious distance from Berlin, I pointed out to the SAR that no such letter had appeared anywhere.
The Defendant had not mentioned it in his pleadings, nor in his affidavits.
‘Nothing is there to substantiate this unmeritorious, bare allegation’, said I.
Virago exploded in anger.
In her battleground, she took no prisoners.
Plunging her hands into her large handbag, she screamed,
‘If it’s the letter you want, here it is!’
From its gloomy depths, like a rabbit out of a hat, she triumphantly pulled out ‘The Letter’.
She brandished it at my face and cast it upon the table.
This outburst afforded me a glimpse into her handbag.
Within its cavernous depths, between personal items, quite like the vaults of a bank, there lay exposed an array of neatly-arranged documents: presumably other ‘incriminating letters’ to be launched against other unsuspecting plaintiffs.
The SAR refused to accept The Letter.
She granted summary judgement for the plaintiff.
Instead of savouring the success, I fled.
That handbag was in danger of being used as an assault weapon.
[Datuk Prasad Sandosham Abraham is a retired judge of the Federal Court of Malaysia. He is now an arbitrator. If you wish to comment upon his story, do send an email to him at [email protected] or to our usual contact address]