Law Concerning Written Submissions

Recently, in Kaushal Verma and Ors. vs. State of Chhattisgarh^[2], an impressed Hon'ble Apex Court not only recorded the written submissions verbatim but further recommended making them a standard format for all state cases.

Therefore, in light of the above, the author's aim is to examine the scope of written submissions and its applicable laws, if any.

Literal Interpretation

Advanced since time memorial, written submissions were codified under Order XIII, Rule 2 (3A – D) of the Code of Civil Procedure, 1908 (CPC) vide the Code of Civil Procedure (Amendment) Act, 2002 (2002 Amendment). Consequently, any party before concluding oral arguments may seek permission of the court to submit written arguments i.e., written submissions. Furthermore, these submissions constituted a part of the judicial record. Additionally, further time/adjournment for filing written submissions cannot be sought unless reasons are recorded by the court in writing.

As such, a conjoint reading of the above, makes it abundantly clear that written submissions i) can only be advanced after seeking permission of the court at the time of commencing oral arguments (reference to Madan Lal vs. Sardar Lakhwinder Singh^[3]) ii) cannot be advanced after concluding oral arguments iii) constitute a part of the judicial record and iv) no further adjournment can be sought (except in extraordinary cases) for filing written submissions.

Thus, written submissions constitute a double-edged sword as they assist courts in appreciating the root of the controversy but on the other bind courts into providing judicial observations.

Furthermore, another useful byproduct is that written submissions reduce chances of human error as i) many times either courts or lawyers may forget certain aspects/points and ii) such aspects/points maybe misunderstood by either party. Resultantly, (barring pleadings and certain interlocutory applications) written submissions constitute the single most important document on record.

Current Regime

Although, there is no clear law delineating written submissions nonetheless, attempts have been made to decode this mystery. Most notable amongst them is the Order dated February 14, 2011 as passed by the Hon'ble High Court of New Delhi in Kiran Chhabra and Ors. vs. Pawan Kumar Jain and Ors.^[4]. In the instant matter, the Hon'ble High Court frustrated by a lack of assistance (as the Ld. Counsel submitted a compendium of judgements in lieu of written submissions) was pleased to issue formal directions. These directions are reproduced hereunder: -

Thus, to formulate complete written submissions one must: -

i. Create A Complete List Of Dates

Firstly, creating a complete list of dates including dates/incidents relied upon by the opposite party. This assists courts in establishing a complete chain of events.

ii. Separate Admitted Facts From Disputed Facts

Secondly, (incase issues are not framed) chafing the admitted facts from disputed facts. This assists courts in pinpointing the exact origin of the dispute.

iii. Formulate Disputed Facts Into Questions/ Propositions

Thirdly, converting each disputed fact into a question or proposition. This assists courts in applying principles of law to a disputed fact.

iv. Provide A Brief Factual Background Underpinning Each Proposition

Fourthly, providing a brief factual background for each proposition. This assists courts in ascertaining the reasoning/motive behind certain acts/omissions as committed by the parties.

v. Cite Relevant Statues

Fifthly, having established a factual footing, citing relevant statues.

vi. Cite Relevant Case Laws

Sixthly, after statues, relevant case laws to be mentioned. This must follow the order of precedence with judgments of the Hon'ble Supreme Court being cited first followed by the Hon'ble High Court and lastly rulings from other High Courts.

Additionally, certain concepts to be kept in mind include: -

       a) Providing a factual narration for important relied upon rulings.

        b) In case both older and newer judgments are cited on the same proposition, then older one's may be omitted if they are mentioned in the newer judgments. The exception being when an older judgment authoritatively lays down both the reasoning and the law.

        c) Mentioning the ratio for each judgment. This assists courts in establishing precedence.

vii. Rebut Opposite Side's contentions

Seventhly, if a contention is cited by the opposite side then it should be rebutted. The rationale being under Section 106 of the Indian Evidence Act, 1872 (IEA) burden of proof lies on the person claiming the same. Thus, any burden lifted must be rebutted immediately.

viii. Summary

Lastly, having addressed the above, one must sum up the written arguments. This assists courts in getting a fair idea of what each individual proposition leads to.

Moreover, throughout the written submission one should cite the relevant page numbers and placitums of the documents being relied upon. This assists courts in cross referencing/verifying the same.

Foreign Countries

Thus, having established the domestic regime, certain international directions concerning written submissions include: -

i. Ireland – Recently, in response to the challenges posed by the Covid – 19 pandemic the Irish Parliament passed the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 (CLCRL). In furtherance thereto, on October 5, 2020, under Section 11 (2) of CLCRL, the Hon'ble High Court of Ireland passed practice directions titled "HC97 – Written Submissions and Issues Papers". Thus, laws concerning written submissions stands codified. Consequently, some salient provisions include: -

i. Rule 3 (a) – Submissions to carry the title and record number of the case and indicate on whose behalf they are presented. Additionally, written submissions should be dated and if settled by additional counsels, then their names should be included.

ii. Rule 3 (d) – Submissions to follow the fixed template:-

a) Introduction summarizing the factual background (no more than 2 pages),

b) Principal Issues in the case,

c) Submissions pertinent to these issues,

d) Conclusion and indication of Orders sought.

iii. Rule 4 – Chronology of Relevant and Procedural History

a) Plaintiff – to include a chronology of all relevant facts (including filing dates of key pleadings) as an appendix,

b) Defendant/Respondent – to include the entire chronology of events. Incase of points of differences, dates etc. the same to be highlighted in bold.

iv. Rule 5 – Books of Authorities

a) Rule 5 (d) – Books of authorities to be presented in the following format and sequence

(i) Any relevant provisions from the Constitution,

(ii) Any relevant statutory provision or regulation,

(iii) Any relevant rule of court,

(iv) Irish authorities,

(v) EU authorities,

(vi) International authorities,

(vii) Other materials including extracts from text books or journals.

Lastly, written submissions to contain no more than 5,000 words in total.

ii. Australia – Interestingly, the scope of written submissions is delineated under Part 44.02 of the High Court Rules, 2004. In other words, Part 44.02.02 under form 27A provides a standard template for filing written submissions. Additionally, Part 44.02.03 includes form 27 B which delineates the procedure for filing a chronology of events. Furthermore, under Part 44.02.04, any reference to material filed before a lower court (and the same is not on record), needs to be filed with the written submissions. Thus, certain salient features of Form No. 27 A include: -

Form 27 A

i. Part II – A concise statement of issue/issues contended in the present appeal,

ii. Part IV – Citation of the authorized report containing the reasons for judgment by the lower courts,

iii. Part V – A narrative statement of relevant facts found or admitted in the court,

iv. Part VI – Succinct arguments addressing the following points: -

a) Error/Errors complained of,

b) Applicable Legislation, principles of law relied upon,

c) Analysis or rationale of the legislation,

d) How said legislation applies to the facts of the case.

v. Part VII – Orders sought from the court,

vi. Part VIII – Estimate number of hours required for oral arguments.

iii. Singapore – Chapter VIII, Rule 73A of the Supreme Court Practice Directions provides guidelines for filing written submissions. Usually, this rule is read in conjunction with Rule 74. Therefore, some of salient rules include: -

i. Rule 73 A (a) (i) – Hard copy of the written submissions to be filed 1 day in advance of hearings,

ii. Rule 74 (2) – Counsels citing judgments to state the proposition of law said judgment establishes and include parts of said judgment which support said proposition…. When counsels cite more than 2 (two) judgments on a given proposition then there must be a compelling reason to do so, and this reason must be provided,

iii. Rule 74 (4) – foreign judgments to only be used if they provide valuable assistance to the Court. However, in case an existing local judgment deals with the relevant issues, then precedence to be given to the local judgment,

iv. Rule 74 (7) – Rather than citing page numbers, paragraph number of the judgment to be cited.

iv. Germany – Under the German Code for Civil Procedure, 1995, Section 282, 283 read with Section 296 (a) regulate the law of written submissions. Pertinently, these include:-

i. Section 282 (1) – Each party should submit to court its means of challenge, defence, specific allegations, denials, objections, defence pleas, evidence and objections to evidence as promptly based on the circumstances of the proceedings,

ii. Section 282 (3) – Incase defense files objections concerning admissibility, then it should be prior to the matter being heard on merits,

iii. Section 296 (a) – Following closing of hearings, no further means of challenge or defence to be submitted.

In summation, although steps in the right direction were implemented via the Commercial Courts Act, 2015 nonetheless they are limited to commercial disputes. As such, the authors recommend the following measures in addition to the kiran judgement (supra). These include:-

i) Names – Including names of drafting as well as consulting counsel when filling written submissions.

ii) Fixing word/page limits – uniform word limit for filing written submissions. This may be 10 – 20 pages for heavily contested matters, 5 – 10 pages for regular matters and 5 pages or less for interlocutory applications/appeals challenging interlocutory orders.

iii) Separate Chronology of Events – Submitting a joint chronology of events with disputed dates being highlighted in bold.

iv) Advance Service – Promoting efforts for advance filling of written submissions.

v) Orders Sought – Mandate inclusion of reliefs/orders sought within written submission.

vi) Filing Additional Documents – Permitting parties to file additional documents with written submissions if said documents are part of the lower court's record.

The author is an Advocate and views are personal.