PRE Trial Procedure - hope it helps PDF

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Summary

PRE TRIAL PROCEDURE Right before trial. All must go for case management.  Need to know what documents to bring in.  Case management = files all the bundle of pleadings, SOC, SOD, reply all in one set  Bundle of documents= documents adduced to support your pleadings There are number of steps tha...

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PRE TRIAL PROCEDURE    

Right before trial. All must go for case management. Need to know what documents to bring in. Case management = files all the bundle of pleadings, SOC, SOD, reply all in one set Bundle of documents= documents adduced to support your pleadings

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There are number of steps that litigants must take or ought to take before the action is fixed for full trial

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The process begins after the close of pleadings (after close of pleadings, amendments can be done with the leave of court and subject to the objections of the other parties) and includes a) Discovery and inspection of documents - o 24 b) Interrogatories - o 26  One more step for the parties to prepare to interrogate the witnesses. But prior to the trial date. Cannot do it during trial. If do it during trial, it is considered as cross examination. This stage is to prepare witness statement. Both parties will have witness statement  All these including witness statement can be tendered as your document during trial.  All these documents are your evidence, which document by plaintiff or defendant. c) Case management – o 34  a) b) 

Pre trial procedure enables the parties to the action to Ascertain all the material facts constituting the case Speed up the action through directions from the court RATIONALE= for every party to an action is entitled to know before hand what case he has to meet at the trial * this is because the court will give you directions on what to file and what not to . before plaintiff compile all docs, both parties must identify their docs and exchange them between parties

DISCOVERY – O24   a) b) c) d)

It is a process to find out material facts and documents from an adversary This process enable parties to know and to ascertain the nature of the case or in order to support his own case or in order to narrow the points in issue or to avoid admitted facts

 FUNCTION OF DISCOVERY a) Fair disposal – to ensure that there is no elements of surprise at or before trial

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b) To see all material documents in the possession of his opponent, and to take copies of the more important ones c) To provide the parties with relevant documentary material before trial to enable them to appraise the strength or weakness of their respective cases d) To reduce cost of litigation * defendant will has the same thing, own set of documents. Then they will exchange with plaintiff. This is where they identify which is to be categorize Part A = birth cert (documents which is not going to contest) Part B = document agreed but content is disputed  Eg: police report(both has their own stories, conflicting version) Part C= where documents and content not agreed. Need to call witness to verify this. But before that, need to exchange then only plaintiff can come out with the bundle of documents 

O 24 R 3 - order for discovery

COMPAGNIE FINANCIERE DY PACIFIQUE v PERUVIAN FUANO CO The documents to be produced are not confined to those which would be evidence either to prove or to disprove any matter in question in the action. It seems to me that every document relates to the matters in question which it is reasonable to suppose contains information which may not either directly or indirectly enable the party to advance in his case. Court say it’s hard to determine what should be file in bundle of documents.  a) b) c)

OBJECT OF DISCOVERY: To ascertain the case of an adversary To narrow points in issue To avoid expenses in proving admitted facts

GENERAL RULE 

Discovery is only allowed against a person who is a party to the proceedings and not against 3rd parties (Strangers)  It is improper to join a person as a party merely for the purpose of obtaining discovery against him.  If information or documents is in the possession of a person is required, the proper procedure is to call him as a witness to give oral testimony or to serve a subpoena  Eg: cannot give to IO

EXCEPTION ** 

Situation where discovery can be made against strangers

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NORWICH PHARMACAL IN NORWICH PHARMACAL CO v COMMISSIONERS OF CUSTOMS ** In this case, the HOL stated that where a person innocently and without incurring any personal liability become involved in the tortious act of others, he came under a duty to assist 1 injured party by giving full information by way for discovery and disclosing the identity of the wrongdoer and that as a result under a duty to disclose any information sought against him. Lord Reid held that’ justice requires that the stranger should co-operate in righting the wrong if he unwittingly facilitates its perpetration By applying this principles, the HOL ordered the disclosure of documents identifying the importers of a chemical compound in respect of which the appellants held a patent which they alleged was being infringed by illicit imports of the compound abroad

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A limitation on the principle laid down in Norwich Pharmacal is that discovery will not lies against a stranger who is uninvolved with the wrongdoing and did not facilitate its commission, merely because he can give information as to the identity of the wrongdoer without which the plaintiff is unable to proceed  Eg: investigating officer. Just under duty to give information. He is under a duty to disclose any documents related to the tortious act. He had access to the information. He has no interest at all. First Malaysia Finance Bhd v Dato Mohd Fathi Held: the GR in Norwich Pharmacal is that, discovery to find the identity of the wrongdoer is available against anyone whom the P has a cause of action in relation to the same wrong. To this GR, there is one exception: thru no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing, whilst he may incur no personal liability, yet he is under a legal duty to assist the person who had been wronged by giving him full information and in making disclosure of the identity of the wrongdoer.

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The process of discovery generally operates in 3 stages Disclosure - o 24 r 3 Inspection and taking of copies - o 24 r 9-10 Production - o 24 r 11-14

 Parties may refuse to produce the documents for inspection a) If the evidence will disclose his own case PATCH v UNITED BRISTOL HOSPITAL BOARD

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Written statements made before any claim has been made, or even adumbrated, are privileged from discovery if they are made in anticipation of any claim which may be made b) private and confidential communication between him and his legal advisers  whatever documents also is included.  Eg: transfer file, plaintiff before go trial, want to change solicitor, new solicitor write to old solicitor requesting for all the documents.  Question here is whether he can disclose any confidential information?  Answer is that he can keep it because it falls under private and confidential, unless his client give the consent to pass the documents to new solicitor.  Hence, before old solicitor want to pass documents of client to new solicitor, must get consent from the client c) public documents where if disclose would be injurious to the public – o 24 r 15 d) denies the possession of documents WHAT DOCUMENTS ARE SUBJECT TO DISCOVERY?? (didn’t discuss) 

O 24 R 3(4) – not in ROC??

Lornho Ltd v Shell Held: in construction of O 24, a party had a document in his power only if he had a presently enforceable legal right to obtain inspection of the document from whoever actually held it without the need to obtain consent of anyone else; and since the documents in the possession of the subsidiaries could not be obtained without his consent and in the case of the subsidiaries in Rhodesia and South Africa, ministerial consent, they were not in the power of the Defendants.  

Notice to produce – O 24 R 10 Failure to make discovery - o 24 r 16

INTERROGATORIES – O 26    

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Interrogatories are written questions submitted to a party by another party The party who receive the interrogatories must submit answers made on oath In short, the interrogatories allow 1 party to administer a series of question to the other, and compel the other to answer them on oath before trial In the first instance, the answer are given by affidavit but if the party interrogated omits to answer some of the question or gives insufficient answers, the court may direct a further answer to be given by affidavit or oral examination O 26 R 1, Form 44 – power of court to order interrogatories Normally make application after close of pleadings and after discovery

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 O 26 r 1(3), (4) - the questions  Usually happen on 1st stage of trial, which is exam in chief. Question would be very basic  May repeat the questions in trial which you want to tender documents  Eg: penyata saksi plaintiff, question which can only be verified by that same witness it self. This will be the stage where plaintiff wants to tender the documents DISCRETION OF THE COURT  a)  b) 

The court in exercising its discretion will be guided by 2 factors Relevancy The question must be related to the matter in issue between the parties Necessity O 26 r 1(3) – the question must be essential for fair disposal of the suit

* some judges may instruct penyata saksi as if you are doing cross examination, this will be set of question that you will ask. Must serve to the other party and must foresee what question you want to ask during the cross examination stage PROBLEM: will you want to reveal any question during the cross examination??? Hennessy v Wright Held: interrogatories are to seek admissions Pertubuhan Berita Nasional Malaysia v Stephen Kalong Ningkan ** The court has an undoubted discretion to grant or refuse interrogatories but in the exercise of its discretion will give leave to such as are necessary for disposing fairly the action and saving cost. The court will only grant leave to serve interrogatories if it considers necessary. The party ordered to answered interrogatories may object to answer: (a) if it is scandalous or irrelevant (b) not bona fide (c) matters inquired are premature (d) matters falls under privilege (Government Proceedings Act and Evidence Act) Sheikh Abdullah v Kang Kock Seng Held: if the answers could be material to the purposes of the suit, the interrogatories ought to be answered but if the answers could not be material for either of these purposes, the D should not be ordered to answer the interrogatories. Ramsey v Ramsey Relevant guidelines in relation to the questions contained in an interrogatory:

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(a) Is the question relevant? (b) Would it help the applicant or must he call a witness to establish that fact? (c) Has the Q been framed clearly and precisely to enable the opponent to provide an answer? (d) Is it reasonable to deal with the point in this way, there having been discovery of documents and witnesses may be needed at the trial or could it be more convenient to ask for particulars or serve a notice to admit facts? Phillip Hoalim v Amalgamated Threatres In an action for damages for wrongful arrest and false imprisonment against a company, the P delivered interrogatories the answers to which were made by the company secretary. The answers to some of the interrogatories were professed to be based on information obtained from another officer of the co who had given evidence in certain proceedings in the Police Court, upon which the present suit was founded. Such answers contradicted the sworn evidence given at the Police Court. In an application to strike out the answers as being a sham and an abuse of the process of the court, it was held that the inherent jurisdiction of the court to order the striking out of answers to interrogatories cannot be invoked in the present case, the inconsistent statements being made by 2 different members of the company.  O 26 R 6 – if any person on whom interrogatories have been served answers any of them insufficiently, court may make an order requiring him to make a further answer and either by affidavit or on oral examination as court direct  O 26 r 7 – failure to comply with order  O 26 r 8 – use of answer to interrogatories at trial  Interrogatories will not be allowed if: a) Party is not entitled to administer interrogatories for obtaining discovery of facts which constitute exclusively the evidence of his adversary’s case or title b) Any confidential communications between his opponent and legal advisers c) Involved public interests d) Premature e) Fishing in nature (interrogatories which are not related to any matter in question ADMISSIONS  

O27 Admission are statements by way of pleading or otherwise in writing by 1 party to the action, admitting the truth of the whole or part of the case, of any other party to the action  S 58 EA – facts admitted need not be proved  Admissions must be clear, unambiguous and voluntary  There are 5 types of admissions 1. Admission by pleadings

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2. 3. 4. 5.

Admission by agreement of parties Admission of notice Admission of facts Admission of documents in notice

Malayan Banking Bhd v Foo See Moi It is settled law that letters written without prejudice are inadmissible in evidence of the negotiations attempted. This is in order not to fetter but to enlarge the scope of negotiations, so that a solution acceptable to both sides can be more easily reached. But it is also settled law that where the negotiations conducted without prejudice lead to a settlement, then the letters become admissible in evidence of the terms of the agreement, unless of course the agreement has become incorporated in another document which would then be the evidence of the agreement. Yeo Hiap Seng v Australia Food Corp Held: the 2nd D could only succeed in her application if she could show that she was entitled to claim the privilege. The court stated that as the 2nd D took no part in the ‘without prejudice’ negotiations, either personally or through an agent, she could not claim privilege.

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Basically these are the documents for purpose of trial Bundle of pleadings Bundle of documents Agreed documents Non-agreed documents Penyata saksi (witness statement) depends on how many witness you have. Penyata saksi need to file during case management

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Bundle of documents consists of An agreed bundle of documents Non-agreed bundle of documents An agreed statements of facts Practice note Cases

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When a document is agreed to be included in the agreed bundle of document the evidential effect is that: a) the originals need not be submitted to the court on the date of the trial; b) the makers need not be called; c) the contents of the document are deemed to be proven. Henry Trading Co Ltd v Harun

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Held: where there is an agreed bundle of documents it is not necessary to prove those documents. The trial judge has stated that the contents of an agreed bundle of documents must be proved unless such contents are admitted by the other side.

PRE TRIAL CASE MANAGEMENT – O 34  

Pre trial case management is a process that is undertaken by the courts once the pleadings are closed It provides an occasion for the court to consider the preparation of the trial, on all matters which could have been dealt by interlocutory applications, but have not been dealt with and enables the court to give future directions as appear best to secure the just, expeditious and economical disposal of the action

 What exercise to be undertake by judge??? a) Determine whether the case is now ready for trial or not b) To enables the court to dispose of any outstanding matters before commencement of trial PRELIMINARY CROSS EXAMINATION AND INTERROGATORIES  

O 34 O 26 R 8

Bisi Ak Jinggot v Superintendent of Lands & Surveys Preliminary cross exam has proven to save substantial trial time. This methodology has been used in more than 100 trials and approved in this case. 

O 34 r 1 – application for pre trial case management

ATTENDANCE OF PARTIES IN PRE-TRIAL CASE MANAGEMENT    

O 34 R 3 – Directions from court O 34 r 3- notice of pre-trial case management O 34 r 4 – attendance at pre-trial case management O 34 r 6 – failure to attend

TUTORIAL ANSWER 1.

Principle laid down in Norwich Pharmacal Co v Excise Commissioner is that discovery to find the identity of the wrong doer is available against anyone whom the plaintiff has a cause of action in relation to the same wrong. To this general

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rule, there is an exception that if though no fault of his own, a person gets mixed up in the tortious act of others so as to facilitate their wrong doing, he may not incurred personal liability, he is under a legal duty to assist the person who had been wronged by giving him full information and in making disclosure of the identity of the wrong do-er A Norwich Pharmacal Order being an equitable remedy will not be granted as of right even when the requirements for it were satisfied. It is absolutely the court’s discretion to do so 2. o 34 discuss on case management. Notice of case management is filed by plaintiff upon the closing of pleadings. They filed then court process, then court will give mentioned date. On the date, all parties must appear in court, normally takes place in chambers, both parties will appear PROCEDURE 1. Plaintiff must file Notice of Application (NOA) under O.34 for CM 2. When? Upon closing of pleadings where cannot reply anymore 3. Can apply for amendment after close of pleadings? Can, subject to objection from defendant and leave of Court 4. Both parties must appear before Judge in Chambers WHAT IS CM?? a) Stock taking exercise b) Occasion for court to consider preparation for trial c) Enable court to give direction to secure just, expeditious and economical disposal of action such as directions relating to evidence, amendment if any, limitation of witness and documents to be filed d) The order also allows court to secure parties make all reasonable admission and agreements as to conduct of the proceedings e) Restrict interlocutory application f) Dismiss action without hearing merits if direction are not complied. In other words, 0 34 saying that If parties do not comply with direction given by court, case may be struck out. Hence, o 34 is a mandatory compliance!!!!! 3) summary of the procedure a) At the case management stage, parties agreed to preliminary cross examination witness statement with full liberty to orally crossed and reexamined witness statement if necessary b) Plaintiff will then served witness statements to the defendants c) Upon received, the defendants will served his preliminary cross exam to plaintiff

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d) Plaintiff and defendant prepares answer which are referred to as preliminary cross examination witness statement e) At the trial, plaintiff calls his witness. Plaintiff witness statement is introduced through witness statement. Before defendant start his cross, defendant will ask the following question: Have you answer my preliminary cross examination witness statement? Answer will be yes. Then the defence counsel will request for the preliminary cross examination witness statement to be marked as evidence. The defendant then can further cross examined the witness. Plaintiff will reexamine.

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