A Significant Appellate Development: Court of Appeal Clarifies the Need for Leave to Adduce Further Evidence
A recent appeal handled by our firm has resulted in an important procedural clarification concerning the adducing of further and new evidence before the Court of Appeal.
We are pleased to share a significant development arising from proceedings before the Court of Appeal of Malaysia involving a commercial dispute concerning the operation of a financial advisory business.
On 11 August 2026, our firm represented the Appellants in proceedings concerning further and new evidence, including videos and Telegram communications, which the Appellants sought to place before the Court in connection with the appeal.
The evidence was significant because it was said to demonstrate that the Respondent had continued operating and promoting his foreign exchange and financial advisory activities, notwithstanding the position previously advanced that such activities were rendered void by the Capital Markets and Services Act 2007.
A Procedural Question of Significance
A central issue before the Court was whether the Appellants were required to obtain leave before placing the further and new evidence before the Court.
Following submissions by the parties, the Court made an important procedural determination.
The Court’s Order was that the Notice of Motion by the Appellants was struck out and, importantly, that the further or new evidence sought to be relied upon by the Appellants was not subject to the requirement to obtain leave of the Court under Rule 7(2) of the Rules of the Court of Appeal 1994.
This is an important clarification of appellate procedure.
Rather than requiring the Appellants to proceed through an application for leave under Rule 7(2), the Court recognised that the further and new evidence in question was not caught by that requirement. The next issue is whether the application should have been filed at the first place or not.
The Court’s Role in Filtering Evidence
The issue is particularly interesting when considered alongside the Federal Court’s decision in Attorney General of Malaysia v Dato’ Seri Najib Tun Razak.
The Federal Court considered the principles governing the admission of further evidence under Rule 7 of the Rules of the Court of Appeal 1994 and reaffirmed the important role of the appellate court in scrutinising and filtering evidence sought to be introduced at the appellate stage.
The principle is an important one.
The appellate process must balance two competing considerations:
- the need for finality and procedural discipline in litigation; and
- the need to ensure that material evidence capable of assisting the Court in determining the dispute is not excluded merely through an overly technical approach to procedure.
The Court’s role is therefore not simply mechanical. The applicable procedural framework must be considered carefully, together with the nature and purpose of the evidence sought to be relied upon.
Evidence With Potentially Significant Factual Implications
In the present proceedings, the further evidence comprised, among other things, digital material concerning the Respondent’s subsequent activities.
The Appellants’ position was that the material potentially demonstrated conduct inconsistent with the Respondent’s position in the underlying proceedings.
The significance of such evidence lies in its potential to provide the appellate court with a fuller factual picture when considering the issues arising from the appeal.
Importantly, the sealed order records that the Court made no determination as to the relevance or weight of the further or new evidence, for that to be decided during the appeal proper (Hearing on the full appeal).
This means that the substantive evidential issues remain matters for determination in the appropriate proceedings.
A Meaningful Result for the Appellants
Although costs of RM30,000 were ordered against the Appellants, the outcome represents an important procedural result.
The Court’s order confirms that the Appellants were not required to obtain leave under Rule 7(2) to adduce the further or new evidence in the circumstances before the Court.
For practitioners, this provides a useful reminder that applications involving further evidence must be approached by first identifying the precise procedural nature of the application and the rule that actually governs it.
The distinction between an application requiring leave and evidence that may properly be placed before the Court without such leave can have significant practical consequences for appellate litigation.
We take this opportunity to note that litigation can be full of surprises and sometimes unpredictable outcomes.
The Importance of Strategic Appellate Advocacy
This matter demonstrates the importance of looking beyond the substantive merits of an appeal and examining the procedural architecture governing appellate proceedings.
At the appellate stage, procedure matters.
Identifying the correct procedural route, understanding the distinction between further evidence and fresh evidence, and properly articulating why particular evidence is capable of assisting the Court are all critical components of effective appellate advocacy.
Our firm is proud to have successfully advanced the Appellants’ position on this important procedural issue.
The outcome also highlights our firm’s approach to complex litigation: careful analysis of the procedural framework, strategic evidential presentation and focused advocacy on the issues that matter.
A significant procedural clarification. A strategic result. Another step forward in appellate advocacy.
The identities of the parties and the members of the Court have been deliberately omitted from this article. This article is intended for professional and educational commentary and does not purport to summarise or determine the substantive merits of the underlying appeal.
Written on 9th September 2026 (Wednesday)
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Disclaimer: The above proposition is subject to actual facts and circumstances and shall never be referred as the actual law without seeking legal advice. Consult us for more information!