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Pre trial case management (2017 2018)

Contents :

P/S : I am sharing my personal notes of law-related subjects. Some parts of them are explained in a very informal-relaxed way and mix of languages (BM and English). Secondly, as law revolves every day, there will be outdated parts in my notes. Two ways of handling it.. (1) double check with the latest law and keep it to yourself (2) same with No. 1 coupled with your generosity to share with us, the LinkedIn users (hiks ^_^). Till then, have a nice day!

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Pre trial case management (2017 2018)

  1. 1. 1 Pengurusan Kes Sebelum Perbicaraan Penuh (PTCM)
  2. 2. 2 I. DEFINITION OF PTCM A. DR MIZAN’S ARTICLE: 1. meeting between the judge and the parties (the Plaintiff and the Defendant). The parties are usually represented by their solicitors in the meeting. The main purpose of the meeting is to try resolving some or all „housekeeping matters‟ before going to trial. 2. Example: parties may want to make amendments to their cause papers or file a separate interlocutory application for security for costs, or apply for court to allow it to gather evidence by way of discovery and inspection against the opposing parties. These are merely ancillary matters which are not directly connected to the main dispute between the parties, but are necessary to be resolved in order to ensure the efficient progressing of the case. Hence, to avoid disrupting the flow of progression of the main case, and to prevent parties from making frivolous interlocutory applications as tactical strategy to prolong or delay the trial process, the courts will utilize the case management session as mechanism to screen these applications B. NO DEFINITE DEFINITION BUT USUALLY TO HAVE SEVERAL ATTRIBUTES 1. constant judicial supervision over the management of the case, 2. early court involvement in the said management, 3. properly scheduled durations & deadlines for each step in civil litigation process, 4. continuous monitoring to ensure compliance, and 5. fixed dates for trial sessions with strict restrictions on postponements.
  3. 3. 3 II. WHY PTCM IS NECESSARY? A. TAN GEOK LAN V LA KUAN @ LIANKUAN [2004] 1. PTCMmarks a change from the traditional position under which the progress of cases was left largely in the hands of the parties. 2. 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 pre-trial stage, ensuring that the practices and procedures applicable during that stage are complied with promptly and not abused.” B. KESAN BILA X DE PTCM : SUNRISE WEST SDNBHD&ORS V PRAVIN MAHTANEYRAMCHAND& ANOR [2012] Facts the court papers were not properly presented by the parties despite clear case management directions and notes. For example, there was no bundle of pleadings filed, no agreed facts, no appropriate resolutions to commence proceedings etc. Held The court expressed its displeasure and disappointment with the parties stating that 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 the court to understand the crux issue of the case, it become difficult and challenging at trial for the matter to be resolved. III. 034 , R1 The court under Order 34 Rule 1(1) of the Rules of Court 2012 may  by its own motion direct the parties to the proceedings to appear before the court and  the court may order or give direction as it think fit so that all matters which must be or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with and such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditions and economical disposal of
  4. 4. 4 the case IV. FUNGSI PTCM A. ARAHAN UNTUK PENYELESAIAN SECARA MEDIASI / PENGANTARAAN Aturan 34 Kaedah 2(2)(a) (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— (a) mediation in accordance with any practice direction for the time being issued; 1. Selari dengan Practice Direction No 5 of 2010 2. Also known as “Court Annexed Mediation” : sbb registrar jadi mediator 3. Benefits settling disputes by way of mediation : Parties are able to explore all options available; Underlying issues and common grounds may be identified; Good relationships are restored and maintained; Terms agreed upon would be acceptable to both parties; Settlement is expeditious; No delays in court hearings; and Terms of settlement are final
  5. 5. 5 4. Jenis-jenis kes yang dirujuk untuk “Court Annexed Mediation” a) Kes keluarga (Family cases) b) Kes kemalangan jalanraya (Running Down Cases) c) Tuntutan pinjaman bank (Bank’s loan recovery cases) d) Kes pembinaan (Construction cases) e) Kecuaian perubatan (Medical Negligence Cases) 5. Agreement to Mediate : Borang 1 Practice Direction No 5 of 2010 6. Tempoh masa penyelesaian: 3 bulan dari tarikh dirujuk untuk mediasi B. ARAHAN PENYEDIAAN DOKUMEN PERBICARAAN – O. 34 R. 2(2)(B) – (T) • Ikatan Pliding (writ, pliding) (a) • Ikatan Dokumen Bersama (Bahagian A, B dan C)(b) • Penyataan Fakta Yang Dipersetujui (c) • Penyataan Isu-isu untuk Dibicarakan (d) • Ringkasan Kes Plaintif dan Ringkasan Kes Defendan (e) • Senarai Saksi(f) • Penyata Saksi (Witness Statement) (g)
  6. 6. 6 1. require the party to furnish the court with such information as directed by the court and file bundle of pleading and bundle of all documents. 2. In relation to the bundle of document the court may direct the parties to separate the bundle of document where the contents is not disputed with the disputed contents. 3. direction for parties to file statement of agreed facts and statement of issues to be tried, to exchange and file their lists of witness, exchange and file of witness statements of all witness who may give evidence at the trial. 4. direction in relation to the number of witness and expert witness and estimation on the length of trial and fixing of the date for trial. 5. All in all, court monitor the preparatory measures in gathering documentary evidence and arrangement of the documentary evidence, preparation in relation to witness and other relevant interlocutory applications. The trial date will be determined once all directions given during the Pre-Trial Case Management have been complied with and the parties are ready for trial C. PEMBERITAHUAN PENGURUSAN KES SEBELUM BICARA Pre-trial case management when directed by the Court (O. 34, r. 2) 2. (1) Without prejudice to rule 1, at any time before any action or proceedings are tried, the Court may direct parties to attend a pre-trial case management relating to the matters arising in the action or proceedings.
  7. 7. 7 1. Genisys Integrated Engineers Pte Ltd (suing on behalf of UEM GenisysSdnBhd in a representative/derivative capacity) v PatiSdn Bhd a) Kes utk strike out jugak, ground ke 3 b) Kes ni illustrate kesan sblm o. 34 ada, litigants mmg suka delay Facts  Kes mula tahun 2003  2005- pl diperintahkan amend writ sbb kena tukar nama parti tapi pl x buat2  2007- pl sought leave from the court to substitute UEM Genisys as the plaintiff and leave was granted by the court on 4.2.2008– tapi x buat2 jugak  2012 – minta extension of time nak file amended writ  So defendan had applied at the case management stage, to strike out the case of the plaintiff on the ground of want of prosecution. Held it had inherent jurisdiction to strike out any cause any justifiable reasons esp bila case ni dah didengarkan masa PTCM under order 34 requires the court to deal with such issues at case management stage itself to ensure just, economical and expeditious disposal of the case V. KEHADIRAN & KEGAGALAN HADIR KE PTCM SEBELUM BICARA A. RULES Attendance at pre-trial case management (O. 34, r. 4) 4. The parties to the action or proceedings may be represented at the pre-trial case management by their solicitor, if any, but may, if they so desire, with the leave of the Court, attend the pre-trial case management personally, at the time originally appointed or as adjourned, in addition to their solicitor. Failure to attend (O. 34, r. 6) 6.
  8. 8. 8 (1) If, at the time appointed for the pre-trial case management, any party fails to attend, the Court may (2) An order made by the Court in the absence of a party concerned or affected by the order 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 the case management. 1. It means a PTCM session can be adjourned whenever necessary. According to Order 34 Rule 5 of Rules of Court 2012, a pre-trial case management “may be adjourned from time to time, either generally or to a particular date, as may be appropriate”. VI. DUTIES OF PARTIES A. KEWAJIPAN MEMBERI SEMUA MAKLUMAT Duty to give all information at pre-trial case management (O. 34, r. 8) 8. (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. dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit.
  9. 9. 9 B. KEWAJIPAN MEMBUAT SEMUA PERMOHONAN INTERLOKUTORI **Seminggu sblm mai PTCM, dah kena file apa2 interloc application yang nak dibuat dan diserahkan pada opponent parti. Applu guna NOA cem biasa Duty to make all interlocutory applications at pre-trial case management (O. 34, r. 9) 9. (1) 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. (2) If the pre-trial case management is adjourned and any party to the proceedings desires to apply at the resumed pre-trial case management for any order or directions not asked in any notice given under paragraph (1), he shall, not less than seven days before the resumed pre-trial case management date, serve on the other parties a notice in the manner prescribed in paragraph (1) specifying those orders and directions sought in so far as they differ from the orders and directions asked for during the first pre-trial case management. (3) Any application subsequent to the pre-trial case management and before judgment as to any matter capable of being dealt with on an interlocutory application in the action shall be made by a notice of application. C. ADA LIMIT LA KALAU NAK APPLY INTERLOC PUN - JAWIAKLANDU V. SUNNY INSPIRATION SDN BHD Facts Pl file suit 2004 Pl banyak gila file kan interlock application sampai no lampiran cecah 151 Held much judicial time has been wasted hearing non-productive applications and in order to arrest further interlocutory application and delay, she had to direct the suit to be disposed
  10. 10. 10 of immediately VII. KUASA MAHKAMAH MASA PTCM A. POWER TO ISSUE ANY ORDERS OR DIRECTIONS THAT WILL ENSURE JUST, EXPEDITIOUS AND ECONOMICAL DISPOSAL OF THE PROCEEDINGS , 034 R 1(1) B. POWER UNTUK SETELKAN AWAL- REFER KAT ATAS C. POWER TO TAKE DRAMATIC MEASURES AGAINST ANY PARTIES SHOULD THEY FAIL TO ADHERE WITH ANY ORDERS OR DIRECTIONS FROM THE COURT Order 34 Rule 2(3) (3) The Court, having given directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit. D. MAKSUD PEREMPTORY ORDER 1. peremptory means that the order must be performed by the given time and no further extensions will be given. 2. Md. Amin b. Md Yusoff & Anor v. Cityvilla Sdn Bhd - failure to comply with pre-emptory order emanating from the pre-trial cm conference was fatal. E. EXAMPLE - TAN SRI DATUK DIONGHIEW KING @ TIONGHIEW KING V LAU SWEENGUONG @ LAU SUI GUANG[2014]  in exercising its discretion under Order 34 rule 2(3) of the Rules of Court 2012, the High Court struck out the defendant‟s defence, entered judgment for the plaintiff and ordered damages payable to him to be assessed by the registrar.
  11. 11. 11  This decision is due to the defendant‟s failure to comply with the trial judge‟s pre-trial case management direction for parties to file and exchange their witness statements VIII. PROCEDURE FOR PRE-TRIAL CASE MANAGEMENT A. NOTIFICATION OF PRE-TRIAL CASE MANAGEMENT – O 34 RULE 3 Order 34 Rule 3- all parties shall be informed of the date and time appointed for the holding of the pre-trial case management by way of a notice in accordance with Form 59 of the Rules of Court 2012, and each party shall comply with any directions contained in such notice.I B. IN PRACTICE all parties shall be informed of the date and time appointed for the holding of the pre-trial case management when they filed in their writ (online or otherwise)in the following ways: (a) via e-filing log in account (b) via e-filing portal (d) for courts without e-filing, by official letter from the court IX. MATTERS TO BE DISCUSSED DURING PTCM A. MEDIATION B. BUNDLE OF PLEADINGS C. BUNDLE OF DOCUMENTS Order 34 Rule 2(2)(d) - (i)
  12. 12. 12 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.43 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; (ii) Part C – documents where the authenticity and contents are disputed D. STATEMENT OF AGREED FACTS 1. Statement of agreed facts refers to facts which are not disputed by all parties 2. 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. 3. Once admitted, it is not necessary for the parties to call witnesses to prove the facts stated in the statement of agreed facts E. STATEMENT OF ISSUES TO BE TRIED Statement of issues to be tried contains the main legal issues in dispute between the parties.It helps the court by leading the trial proceeding to the right direction. For example, “Whether the defendant was negligent while driving the vehicle, thus caused the accident to happen which resulted in the plaintiff‟s injuries?”or whether by failing to deliver the goods on time, the defendant had breached his obligation under the contact?Sinceit is a document that is prepared based on consent from both plaintiff and defendant, it is conclusive statement of what exactly is the dispute between the parties. Hence, the whole trial process should be moving towards proving nothing else but those issues.Order 34 Rule 2(2)(k) provides that the court may, during the case
  13. 13. 13 management stage, finalize these issues between the parties and fix for them the date upon which the document is to be filed. F. STATEMENT OF WITNESS Order 34 Rule 2(2)(l) - (s)) the court may also utilize the case management session to finalize the list of witnesses between the parties. In doing so, the court will evaluate the relevancy of every each witness that parties intend to call, and supervise them in relation of whether such witness should be called or not. Apart from that, it is also during case management session that the court will be discussing with the parties about “the period within which the parties have to exchange and file their list of witnesses and the period within which the parties have to exchange and file witness statements of all witnesses who may give evidence at the trial.”45Order 34 Rule 2(2)(p) also states that the court may also determine whether an order should be made limiting the number of expert witnesses. G. FIX DATE OF TRIAL!