1. Pre trial Case Management PDF

Preview

Summary

PRE-TRIAL CASE MANAGEMENTCase Management in Court Concerned with the preparation for trial O. 34 ROC: dealing with the pre-trial case management. Purpose of this rule: i. To facilitate case management in court ii. To replace the one in RHC 1980 Purpose of case management: to set down for trial actio...

Description

PRE-TRIAL CASE MANAGEMENT Case Management in Court 1. Concerned with the preparation for trial 2. O. 34 ROC: dealing with the pre-trial case management. 3. Purpose of this rule: i. To facilitate case management in court ii. To replace the one in RHC 1980 4. Purpose of case management: to set down for trial action began by writ 5. Previous proceeding RHC, once pleading is closed, requires to file bundle of document, the court will straight away fix a hearing date, witness will be testified in court. 6. Intention of this rule: i. To make the court taking proactive role in preparing time frame and giving direction as to the preparation of each party’s case for the purpose of trial. ii. To enable the court imposing sanction on non-compliance of direction. (e.g. Court has power to struck off if Plf didn’t comply the direction) 7. Sunway PMI-Pile Construction Sdn Bhd v Pembenaan Chan & Chua Sdn Bhd F: On 1 March 2001, the parties appeared before the court for pre-trial conference. The court ordered both parties to file certain documents and set down for continued hearing on 2 August 2001. On the day, counsel for plaintiff sought an extension of two months for the parties to file the said documents and produced correspondences showing that the defendant did not respond to repeated requests made by plaintiff’s solicitor to seek the defendant’s solicitor agreement and co-operation in preparing the bundle of documents. H: the court dismissed the defence and counterclaim. -

-

-

-

-

O. 34 r3(1) RHC: if the parties to the action fail to appear before the judge upon the return date stated in the notice in Form 63 (notices to attend pre-trial conference), the judge may in his absolute discretion make any order as meets the ends of justice, including striking out the action or any defence or counterclaim, or other pleading or entering judgement against the defendant, or if there are several defendants, then against one or more of them or he may, after recording his reasons for doing so, adjourn the proceedings to another date. O. 34 r3(2) RHC: where a notice in Form 64 has been issued pursuant to the provisions of rule 2(2), the judge may, upon the return date specified in such notice, strike out the action or make any other order or give such directions as may be specified in the order. O. 34 r7 RHC: if any party to an action fails to comply with any direction given by the judge at any pre-trial conference, such order may be made against the defaulting party by the judge as meets the ends of justice.

O. 34 r3(1) and 3(2) RHC 1980 specify the powers that the court may exercise when parties failed to comply with the court’s direction and appear on the return date in Form 63 or 64 notice. In this case, this power has been exercised owing to the clear documentary proof, admission and uncooperative attitude of the defendant. Similarly, O 34 r7 also empowered the judge to make such orders against the defaulting party as would meet the ends of justice. Such power must include the power to order that the defence and counterclaim be dismissed and that judgement be entered for the plaintiff. O.34 envisages the court taking a proactive role in setting down timeframes and giving directions as to the preparation of each party’s case for the purposes of trial,

while enabling the court to impose sanctions for non-compliance with those directions. Case Management before the Registrar 1. O. 34, r3 ROC: All parties shall be informed of the date and time for holding of CM by way of notice with Form 59 and each party shall comply with direction contained in such notice. 2. Form 59: similar to as a summon calling parties to CM. / notice to attend pre-trial - Indicating that the judge has duty to make sure all parties to comply the timeframe. 3. Duty of Registrar: i. Make sure parties comply time frame ii. Make sure all pleadings required to file has been filed iii. To check the current status of proceedings iv. If Registrar is not satisfied, set a date to come before Registrar v. If Registrar is satisfied, set a date to hear before Judge 4. The procedure: i. CM before Registrar: Registrar has to make sure all the parties do their part (in term of filling & service). ii. If not satisfied, set a date to come again iii. When Registrar satisfied with all filings of pleadings, another CM date is fixed to let both parties appear before the Judge. iv. Registrar will send all the files to judge: judge will hear 5. O. 34 r.1(1): The direction given by the court are to ensure that all interlocutory application (e.g. strike out defence/ summary judgment) has been exhausted & by future cause of conduct which the parties seek to undertake will be towards the quick and efficient. 6. This happens between close of pleading and setting down of trial. 7. The court in opinion the matter can be disposed off by way of summary proceeding, then the court will give direction to file the interlocutory application. - Summary judgement: O. 80 - Application striking out defence: O. 18 r. 19(1) Case Management before the Judge 1. O. 34, r2 ROC: Pre-trial case management when directed by the Court 2. O. 34, r2 (2)(b) ROC: require the bundle of pleadings filed to be bound up in proper chronological order and endorsed with all particulars of parties’ solicitors. Matters in pre-trial case management (for after court satisfied no more pleadings or after close of pleadings) 1. Bundle of pleadings (in proper chronological order and endorsed the names, addresses and tel no. of the solicitors - O.34, r.2(2)(b)) i. O. 34 r. 2(2)(a)-Writ ii. Statement of Claim iii. Defence iv. Replies v. Affidavit (if any) vi. Relevant notice or order which the parties may relied or had been disposed

2.

3.

4.

5.

Bundle of documents A. O. 34, r2 (2) (c) and (d): documents that will be relied on or referred to in the course of the trial by any party including documents referred to in the witness statement of a witness and the contents of such documents shall be agreed on between all parties/ not disputed. (included witness statement) o Plf’s solicitor prepares CABD (Common Agreed Bundle of Documents) B. O. 34, r2(2)(e)(i): documents that the parties unable to agree on + authenticity not disputed but content disputed o Bundle prepared by plaintiff solicitor C. O. 34, r2(2)(e)(ii): documents that the parties unable to agree on + authenticity and contents are disputed o Bundle prepared by plaintiff solicitor o Each party may file separate bundle of document (refers to Part B and C) if they think need - O. 34, r2(2)(f): documents in bundle shall be arranged chronologically or in some logical order and shall be paginated - Process: i. P serves documents to D ii. Categorization of documents iii. D replies iv. P receives and comments and marks and identifies and combines v. P prepares CABD/ Part B/ Part C, three of them separately - For RHC 1980: solicitors for each party file their own bundle of documents separately - Now: combined - Btw: may file additional separate file like ikatan tambahan P Statement of Agreed facts- O. 34 r2(2)(j) i. Where to find the facts?? Ans: from statement of claim and defence ii. Prepared and signed by plaintiff solicitor to serve to defendant solicitor for comment/approval. iii. sign by defendant solicitor (whether amend or not) and return to plaintiff solicitor iv. plaintiff solicitor files in court and facts not disputed - what will happen if the plf did not forward the agreed facts and straight away file to court? Ans: Def can tell the court the agreed facts had not been serve to him, the court will strike it out and take the disagreed facts out & ask the parties to sign the statement of agreed fact which is properly corrected on the same day. Statement of issues to be tried O. 34 r2(2)(k) - Same with statement of agreed facts - After done drafting, plaintiff solicitor serves to defendant solicitor - Issues derived from the pleadings - Combining the issues to be in one statement Lists of witnesses O. 34 r2(2)(l) - To identify how many witnesses - Containing particulars of witnesses and defendant solicitor - Name, IC, age, position of witnesses - Exchange the list of witnesses - If there is left-out, can always file a separate additional list

If party objects witness, i. may file notice of application or, ii. if this happens to be in court, party may examine the witnesses by filling impeaching proceeding - Issue: if same witness appears in both Plf & Def in list? What to do? Ans: normally the witness will give testimony for plaintiff first in examination in chief - Process of examination in chief i. P serves witness statement ii. D prepares Cross-examination Question iii. P prepares Cross-examination Answers iv. D cross-examines - Not necessary to call all the witnesses to attend to the court to be testified Witness statement (aka Evidence-in-chief/examination in chief-O. 34 r.2(m)) - Parties have to exchange and file witness statement of all witnesses - In previous, the witness may be called to give testimony by Q by solicitor and A by witness. in such case, the questions must not be leading questions - Now: O. 34 - The def given opportunity to look at the witness statement before trial & prepare cross examination Q (duty to challenge the witness statement) - Witness statement: i. Q &A ii. Chronological iii. Not leading questions - Additional witness can be added by filing additional lost of witness and witness statement - Not fatal for not calling any witness, just inform the court - Cross-examination i. To challenge credibility of witness ii. If court reject, file impeachment proceeding Case summary - Plaintiff may proceed to file case summary without serving to Defendant - This is silent in ROC Expert witness statement O. 34 r2 (2)(r) - Expert: medical specialist, chemist, surveyor - This expert may either be included in list of witness or may be separated - File together with affidavit signed by the expert and exhibit the expert report - The affidavit signed by the expert must comply with O 40A, r3(2)(a)-(h) ROC (to state qualification & experiences in order to be a credible expert witness) - If there are more than 2 experts, the court will give direction pursuant (r) O.34, r.2(2) (r) either requiring them to identify the issues or possibly reach agreement on issues Settlement of the case-O. 34 r.2(5) - After looking into the case, i. if the court thinks can be settled (provide opinion) & both parties agreed, the court will enter consent judgment ii. if both parties not agree, go for trial Mediation Process before trial -

6.

7.

8.

9.

10.

-

O. 34 r2(2)(a) In high court matter, when both parties agreed to go for mediation, the judge will appoint a session court judge to act as a mediator Session Court Judge as mediator Mediator shall fix appointments for solicitors If fail to reach a settlement, the case is referred to judge In some cases, plaintiff does not agree mediation because it wastes time Process of mediation i. Send a mediator ii. Parties, counsel and mediator attended iii. Mediator: sessions court judge iv. Not referring to pleadings but related documents only v. Talk or propose anything but not bound by rules vi. D may propose any order

‘

Highlights for final 1. Object/ purpose of Pre-trial Case Management: to manage the case - O. 34: main provision - Hong Leong Finance Bhd v Low Thiam Hoe & Anor [2015] 8 CLJ 1 - Zainuddin: FC held that the court is in the driver seat under O 34 of ROC 2012. The court will give directions and set down time frame within which this direction should be complied. The court will impose sanction for non-compliance. During CM, the court will give directions to both parties in respect of filing of documents, pleadings, statement of agreed facts, issues to be tried etc. if any party fails to comply with directions, the court may strike out the action for plaintiff while strike out defence for defendant or dismiss counterclaim if any. Court may also adjourn or give further time for parties to comply with the direction. All depends on the circumstances of case. if the case is new, then court may give some further opportunities to party to file all those things. - Case: Nowadays the court recognizes especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver's seat. 2. Unless order - Not stated in the rule - Define: a form of conditional order which state that unless a party complies with a procedural order, otherwise the case is liable to be struck out or dismissed - If you don’t comply, court will dismiss your action - The court impose conditions on the order - Eg: during first date of case management for hearing of OS, court will see whether P has served the OS to the D. If have not, court will impose unless order. Next CM if P still haven’t serve or not show the court had served, the court will strike off the case - O. 34 r. 2(3): where there is non-compliance of order, court may dismiss action, strike out defence or counterclaim or enter judgement or order as it thinks fit....