Preparation FOR Trial AND CASE Management PDF

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PREPARATION FOR TRIAL AND CASE MANAGEMENT** Case management and pre-trial case management is different in the sense that case management is from the very early stage which more focus on the date of filing and appearance whist for pre-trial case management is more toward to the preparation for the tr...

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PREPARATION FOR TRIAL AND CASE MANAGEMENT ** Case management and pre-trial case management is different in the sense that case management is from the very early stage which more focus on the date of filing and appearance whist for pre-trial case management is more toward to the preparation for the trial.  Relationship between preparation for trial and pre-trial case management

Plaintif file the writ Close of Pleadings Trial Start

xchange of Pleadings

Preparation for tria

May happ w PTCM unti court satisfy parti are ready for trial

Trial

Gat g of Evidence (Discov Adm on, Anton Pillar) Draft Pape Preparing Handles, Wit Expert Reports, Subpoenas

Judgment

nterrogatories, of Trial Cause ss Statements,

**PTCM is a mechanism used by court to su their preparation are more structured and more organized and ensure they have done all the necessaries and avoid from doing the unnecessary.  Pre-trial case management 1) It’s a “Meeting between the judge and the parties”. -A case management is part of the court procedure. It is a meeting between the judge and the parties (the plaintiff and the defendant). The parties are usually represented by their solicitors in the meeting. -A case management usually happens after a plaintiff begins a law suit, but before the trial. The meeting is not a trial and as such witness don’t need to be present. -the main purpose of the meeting is to try settling some or all “housekeeping issues” before going to trial. (eg. Defendant suppose to file…have u done this) 2) It’s a mechanism to schedule proceedings. (eg. When to file) -There are various stages in civil litgation, such as: 1. The filing & serving of a writ & statement of claim, 2. The filing and serving of memorandum of appearance and statement of defence and counter claim. 3. The filing and serving of reply to defence (if any) 4. The close of pleadings.

5. The process of gathering and administering evidence (discovery, interrogatories, subpoenas) 6. The filing and hearing of relevant interlocutory application that occur before a trial is held or a decision is rendered. -Each stage of the process has a scheduled time frame in which it must be filed with the court or completed. -Case management helps the court to set forth a schedule for the submission or completion of the relevant pleadings, court appearances and other matters, and it helps the court to ensure that all parties are complying with the schedule. -in short, case management refers to the schedule of proceedings involved in a matter. 3) It’s a “system that allows court to monitor proceedings”. -the term case management is also used to refer to system in which court assume closer administrative control over the litigation process. 4) It’s an “occasion where the court consider all relevant matters relating to trial”. An occasion for the court to consider the preparation for trial, on all matters which could have been dealt with by interlocutory applications (amendment, mediations) but have not been dealt with and enables the court to gives future directions as appear best to secure the just, expeditious and economical disposal of the action The correlation between the main trial track and the interlocutory/miscellaneous track -interlocutory application is a application related to the main trial track (eg. Amendment to the cause papers, documents). -the interlocutory application is a sub track which will not in any way affect the main trial track. (both track berjalan serentak, will not delayed) ** but some need to be delayed, because if continues will cause misrepresentation

5) It’s a “mechanism that allows the court to supervise the parties in their trial preparation”. Ashmore v. Corporation: in any trial court it is the trial judge who has the control of the proceeding. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assists the trial judge in carrying out his duty.  Relevant provision for pre-trial case management Order 34 rule 1: Pre-trial case management 1. Orders and directions for just, expeditious and economical disposal of proceedings the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court, in order that the Court may make such order or give such direction as it thinks fit so that(a) all matters which MUST be dealt with on interlocutory applications BUT have not been dealt with, WILL then be dealt with (b) all matters which CAN be dealt with on interlocutory applications BUT have not been dealt with, WILL then be dealt with (b) such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal of the case (2) Where the Court makes orders or gives directions under paragraph (1), the Court may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued. .  Common features of pre-trial case management Although there is no monolithic definition or form for what we mean by the term “case management”, it usually consists of four main features:  Early and continuous judicial control over the case;  Time limits for each step in the process  Constant monitoring to ensure compliance  Firm (strict) dates for judicial proceedings with strict controls on adjournments (penangguhan) – mengelakkan penangguhan kes  Why is pre-trial case management necessary -prompted by the pressures of rising caseloads and concern about increasing costs and delay. -Tun Zaki in Asia Pacific Courts Conference 2010, stating that there were 98% of postponement of hearing of court cases by counsel in civil cases at the Kuala Lumpur Session Court. The delay about 33% due to counsel, 24% due to deputy public prosecutor, 25% due to accused and 18% due to the courts. In lower court, there were settlements which were advocated too late at the hearing of the matter, which could have

assisted the parties where possible in small claims procedure. (should have been settled by small procedure, but because lack of guidance, so procedure is prolonged.) Tan Geok Lan v. Lian Kuan The significance of the procedure is that it marks a change from the traditional position under which the progress of cases was left largely in the hands of the parties. Now, under the procedure the court controls the progress of cases by the exercise of its powers given to it to enable it, and not the parties, to dictate the progress of cases at the pretrial stage, ensuring that the practices and procedures applicable during that stage are complied with promptly and not abused. -example of case which shows consequence of absence of PTCM Genisya Integrated Engineers Pte Ltd v. Pati Sdn Bhd This action was initiated by the plaintiff in 2003. On 2005, the court ordered the plaintiff to amend its pleadings to replace Genisys Integrated with UEM Genisys as the plaintiff. Two years after, UEM Genisys sought leave from the court to substitute UEM Genisys as the plaintiff and leave was granted by the court on 2008 requiring UEM to amend the writ of summon and statement of claim. Although UEM Genisys had acquired permission from the court to amend the writ of summons and statement of claim, they had failed to file the amended writ of summons and statement of claim until 2012 which they now seek to extend time for filing the amended writ of summons and statement of claim. The defendant applied to strike out the case of plaintiff which was still at the case management stage, on the ground of want of prosecution. (plaintiff didn’t not take action in proceeding the action) Held: under Order 34 which requires the court to deal with such issues at case management stage itself to ensure just, economical and expeditious disposal of the case. I must say here that any form of delay may amount to abuse in the present system “tracking” and case management and the general undertaking given by Chief Justice to the public that any suit in the court filed will be disposed of within 9 – 12 months. Jawi Ak Landu v. Sunny Inspiration Sdn Bhd I take the view that the administration of civil justice will run expeditiously if there is a law to restrict all interlocutory application. The law must specifically say that interlocutory applications cannot be filed without leave of the court and such leave must be by way of application but oral application and consent obtained at the case management stage. Sunrise West Sdn Bhd v. Pravin Mahtancy Ramchand In this case, I am disappointed to note that papers were not properly presented despite clear case management directions and notes. For example, there was no bundle of pleadings filed (compiled by plaintiff, all the pleadings), no agreed facts, no appropriate resolutions to commence proceedings. I must say here when basic facts are not agreed upon before commencement of trial or the dispute in relation to the agreed facts are not

brought to the attention of the judge to enable to become difficult and challenging at trial. The concept of case management by Sir Igor Judge [2006 Speech] The metaphor of the judge as referee has evolved in recent years to reflect an increase judicial case management role. Previously, the image was of the judge as referee standing in the middle of the pitch waiting for the teams. When they arrived, he blew the whistle and refereed the game. Nowadays, the judge is portrayed as the kind of referee who goes into both changing rooms before the match. He warns particular players and mentions that he will be keeping an eye on them. When he has said everything he needs to, he leads the teams out of the pitch, rather than waiting for them. Then he starts the game, controlling it throughout.  General principle of pre-trial case management 1) Attendance Order 34 rule 4: Attendance at pre-trial case management The parties to the action or proceedings may be represented at the pre-trial case management by their solicitor, but if they (parties) so desire, with the leave of the Court, attend the pre-trial case management personally, can attended in addition to their solicitor. Order 34 Rule 6: Failure to attend (1) If any party fails to attend, the Court may dismiss the action or proceedings [plaintiff absence] or strike out the defence or counterclaim or enter judgment [defendant absence and didn’t give MOB (Memorandum on behalf) to the plaintiff] or make such other order as the Court thinks fit. **But however, court also subject to the Pekeliling before make any order (2) An order made by the Court under sub (1) may be set aside by the Court, on the application of that party, on such terms as it thinks just. (3) Without prejudice to the preceding paragraphs of this rule, where any party to the action or proceedings fails to attend the pre-trial case management, the Court may, if it thinks fit, adjourn (menangguhkan) the case management. 2) Adjournment Order 34 Rule 5: Adjourned pre-trial case management A pre-trial case management may be adjourned from time to time, either generally (ditangguhkan without mention particular date) or to a particular date, as may be appropriate. **parties may apply for adjournment.  Counsel’s Duties at pre-trial case management 1. Duty to Give all Relevant information during PTCM Order 34 rule 8: Duty to give all information at pre-trial case management

(1) The parties to the action and their solicitors shall give all such information and produce all such documents as the Court may reasonably require for the purposes of enabling the Court to properly deal with the action. (must give and cannot conceal) 2. Duty to Make all Interlocutory Applications at PTCM Order 34 Rule 9: Duty to make all interlocutory applications at pre-trial case management Any party to whom the notice to attend pre-trial case management addressed shall so far as practicable apply at the first pre-trial case management for any order or directions which he may desire as to any matter capable of being dealt with on an interlocutory application in the action and shall, not less than seven days before the first pre-trial case management date, serve on the other parties a notice in Form 60 specifying the orders and directions sought. **lawyer has duty to make an oral application to the Court during PTCM to file their interlocutory application  Procedure for pre-trial case management Order 34 rule 3: Notification of pre-trial case management Court will inform the parties of the date and time for the pre-trial case management by way of notice (Form 59). ** In actual practice, all parties shall be informed of the date and time appointed for the holding of the pre-trial case management in the following ways: (a) via e-filing portal (when extraction ready) (b) via separate notice to be received after filing of originating process (c) for courts without e-filing, by official written notification from the court.  Details/item under pre-trial case management The details/items under PTCM are mainly based on things that parties have to prepare for their trial.

statement of agreed facts

statement of issues to be tries Specific cause papers/court documents/Bundle for the purpose of trial

chronology of fact/case

Preparation for Trial

summary of fact/case

bundle of pleadings

Agreed bundles of documents (A) Documentary Evidence: BUNDLE OF DOCUMENTS

Content is disputed (B) Non-Agreed bundle of documents

Oral evidences: WITNESSES

Authencity & Content is disputed (C)

A. SPECIFIC CAUSE PAPERS/COURT DOCUMENTS/BUNDLE FOR THE PURPOSE OF TRIAL 1. Bundle of Pleadings Order 34 rule 2(2)(b) & (c): Pre-trial case management when directed by the Court the period within which the plaintiff is to file a bundle of pleadings consisting of one copy of each of the following documents, bound up in proper chronological order and endorsed thereon the names, addresses and telephone numbers of the solicitors for the parties or, in the case of a party who has no solicitor, of the party himself: (i) the writ; and (ii) the pleadings (including any affidavits ordered (diperintahkan) to stand as pleadings), any notice or order for particulars and the particulars given; **theoretically, memorandum of appearance is not a pleadings. ** Bundle of pleadings consists of the writ and When the proceeding initiated all pleadings (statement of claim, statement of with wrong mode (OS) but in defence, counter claim, reply to a defence & fact is writ, so when changing other subsequent pleadings (if any) the mode, the court will order the affidavit (affidavit

2. Statement of Agreed Facts & Issues to be Tried sokongan) stand as pleadings Order 34 rule 2(2)(j): Pre-trial case management when directed by the Court

(2) At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including(j) the filing of a statement of agreed facts; (k) the filing of a statement of issues to be tried;

Statement of Agreed Facts -statement of agreed facts refers to facts which are not disputed by all parties. - the statement is to be filed into the court (after the parties have exchanged the drafts between them to be perused, corrected and ultimately finalized.) -once admitted, it is not necessary for the parties to call witnesses to prove the facts stated in the statement of agreed facts. Statement of Issues to be tried -Statement of issues to be tried contains the main legal issues in dispute between the parties. (fakta-fakta yang tidak dipersetujui/dipertikaikan: issues to be tried) Example: Whether the defendant was negligent while driving the vechicle, thus caused the accident to happen which resulted in the plaintiff’s injuries? (may be in question/statement) 3. Chronology of the Facts/Case [when the facts too long, complicated with different date] -Rules of Court 2012 is silent on this, but in actual practice, it is required. -it sets out the facts in chronological order. -Parties should take note of the dates in the chronology to see any discrepancies (with any documents or the opponent’s version) and may be disputed. 4. Summary of Facts/Case --Rules of Court 2012 is silent on this, but in actual practice, it is required. -usually used in cases where chronology of the case is not required since the facts are not complex. -it assists the court by providing the court with a quick and compact overview of what had occurred between the parties. B. DOCUMENTARY EVIDENCE: BUNDLE OF DOCUMENTS Order 34 Rule 2(2)(b) & (c) Pre-trial case management when directed by the court.

(c) the period within which the parties are to file a bundle of all 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; (d) the contents of the bundle of the documents referred to in subparagraph (c) shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff and marked as Part A; (Ikatan A: bundle of documents of which agreed/undisputed by both parties of its authenticity and contents) will be exhibits, no need call witness (e) if the parties are unable to agree on certain documents, those documents on which agreement cannot be reached shall be included in separate bundles and each such bundle shall be filed by the plaintiff and marked as follows: (i) Part B - documents where the authenticity is not disputed but the contents are disputed; (most of time, in actual practice, witness is not called) (Content must be proven to be admitted as exhibit) (ii) Part C - documents where the authenticity and contents are disputed; (both authenticity & content must be proven to be admitted as exhibit) **documents that both plaintiff & defendant disagree to accept as evidence. Agreed bundle of documents (Bundle A) -Agreed bundle of documents are documents which both parties do not have dispute as to the authenticity and content of the documents. -it contains documents which are relevant as evidence in proving the issues in the case. -the documents in this bundle could be admitted in evidence without the need of evidence to prove such documents as required under the law of evidence. -parties submit the agreed bundle of documents to the court before the commencement of the trial & ask the court to admit in evidence. Order 34 rule 2(2)(i) any party may apply at any time to the Court for directions as to the filing, bundling and organization of documents intended to be used at the trial of the action, and, on such application, the Court may make such order or give such direction as is necessary to achieve the just, expeditious and economical conduct of the trial of the action; C. Oral Witness (General and/or Expert Witness) Order 34 rule 2(2): At a pre-trial case management, the Court may consider any matter (l) the period within which the parties have to exchange and file their list of witnesses;

(m) the period within which the parties have to exchange and file witness statement of all witnesses who may give evidence at the trial. (n) whether the number of witnesses shall be limited (p) whether an order should be made limiting the number of expert witnesses. (s) the period within which objections to the contents of the witness statement or other evidence of a witness shall be taken. (t) an estimate of the length of the trial and the date for trial (predict from documents)

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