Tutorial 6

1. What is the remedy to a party who finds an irregularity in another party’s papers? (10)

The High Court Rules of 2021 under rule 43 state that when it comes to irregularities in

proceedings a party to the proceedings can apply for the proceedings to be set aside. First the

party has to notify all other interested parties stating the irregularity, and should afford the other

party the chance to address the complaint within 10 days and after 12 more days an application is

filed that there is an irregularity. At the hearing of the application if the court agrees that there is

an irregularity it may set aside the proceedings in whole or partly and grant the leave to amend

proceedings or to make an order as it sees fit. Compliance with the order of the court is very

necessary as the party cannot proceed with anything until it has addressed the irregularity

according to the Court order. Extension of time to address the irregularity is allowed to apply for.

2. How are pleadings closed? 10

Rule 44 of the High Court Rules of 2021 states that pleadings are closed when one party is

barred, when a party joins the opposite party in pleadings and they don't claim any new issue or

add more pleadings, when parties have reached consensus in writing that they have closed

pleadings. Such an agreement is required to be filed with the registrar. Dies Inducea is important,

so when time lapses expected for pleadings and filing is not done it indicates closure of

pleadings. Lastly when parties are unable to reach consensus that pleadings have now closed, the

court can declare that their pleadings have closed.

3. Discuss in detail the proceeds for accepting on offer in settlement or tenders in

settlement? 10

Offers and tenders in settlement are issues that arise before trial. Rule 45 of the High Court Rules

2021 states that where there are claims of money in proceedings, the person who is supposed to

pay that money is allowed to write an offer of settlement be it partly or wholly. If one is liable to

pay an amount together with someone, may offer to settle through contributing their specific

amount and give out any condition in the settlement offer. Offer and indemnity is supposed to be

signed by the person making the offer or a legal practitioner representing him/her, it has to show

all terms and conditions, to be served on the person owning the money and show that it has been

made in terms of Rule 45 of the High Court Rules 2021.

Where performance is required as relief to an aggrieved party the person who has been ordered

to perform the act may write a tender that they will perform such act in part or wholly. If power

of attorney is required for the act to be performed, it shall be filed with the registrar together with

the tender so that the person who is claiming performance may do it. The tender requires signing

by the person making it, it needs to have all terms and conditions set and should be served on the

Plaintiff. A notice is supposed to be served when it comes to an offer or tender, it should

highlight if it is made unconditionally, or if it is towards claims and costs or claims only and any

reasons on disclaimer of liability. If the Plaintiff accepts the tender or offer they need to file this

with the Registrar and the timeline for accepting an offer or tender is 15 days from the day of

service. If 15 days have lapsed, the person who has made the offer will need to give written
consent and any conditions they consider fit for the lapsed offer to be deemed accepted. If time

lapses the court on application can direct that the offer or tender be accepted. After acceptance,

service of acceptance to the offeror is important. This rule also applies where power of attorney

is required for tender to be performed. If an order as to costs does not accompany the offer or

tender, the Plaintiff can apply for order as to costs. If payment of accepted offer or tender is not

made within 10 days, the Plaintiff can make a chamber application. The court remains with

discretion whether or not to give order as to costs.

4. What is the purpose for conducting a PTC? How is it held? When and for what issues?

(20)

A pre trial conference is held after pleadings are closed according to Rule 49 of the High Court

Rules 2021. If a party wishes to have the action brought for trial they should request the other

parties to attend a PTC. The agree on the venue and convenient time. The purpose of a PTC is to

reach consensus or to settle the issue in dispute. The parties look at how to cut off or reduce the

length of the trial through the following ways, through getting any admissions of facts, tape

recordings and documents, examination and inspection and exchanging reports from experts,

furnishing each other with further particulars, to consolidate trials and assess the damage

amounts. Parties also set out the real issues in a matter and find out the possible length of the

trial. A PTc is an attempt to reach a settlement. Minutes are supposed to be prepared and signed

by parties where they conduct PTC before a judge; date, duration and place of conference,

people present, any areas of non agreement and prejudice, request for settlement proposals. The
minute requires filing with the Registrar. If a party's not agreeing to a PTC without a judge they

can apply to have a PTC before a judge. If it is before a Judge, the application has to be

accompanied by PTC conference minute. The Registrar then notifies both parties to attend in

Chambers at a specific time with the objective of reaching settlement. The judge is responsible

for directing the proceedings and physical attendance of parties is a prerequisite. If parties agree,

a Judge can make an order that represents the terms of settlement. When a PTC is concluded

before a Judge, there is need of a record of decisions made and agreement, an order limiting

issues for trial, any directions given, refusals and admissions. A judge has power to dismiss

claims or strike out defense by a party where the party fails to comply with a direction given.

Before going to trail, a Judge may call counsel for the parties to secure agreement to cut short

proceedings. The court has discretion to make orders as to costs.

5. Discuss the purpose of discovery?How is discovery affected in the High Court? (20)

To begin preparing for trial, both sides engage in discovery . This is the formal process of

exchanging information between the parties about the witnesses and evidence they ll present at

trial. Discovery enables the parties to know before the trial begins what evidence may be

presented. It's designed to prevent "trial by ambush," where one side doesn't learn of the other

side s evidence or witnesses until the trial, when there's no time to obtain answering evidence.

Rule 47 of the High Court Rules 2021 states that for discovery to be effected in High Court,

notice in writing is required to be made by a party to proceedings. Discovery ought to be made

on oath within 10 days by the party required to do discovery. The party that needs to produce

documents for discovery can by notice tell the judge any documents that he/she cannot allow to

be discovered. However, the following is not included for discovery; Statements of witnesses
taken for the purpose of proceedings, communications between legal practitioner and client, legal

practitioner and advocate, pleadings, affidavits and notices. If a party believes that another party

holds relevant material they request to discover such material, be it recordings or documents. If a

party fails to disclose material then such material cannot be used for trial. Where a party refuses

for discovery of documents, a party may make a chamber application to compel discovery and

the Judge has discretion to allow it.The party who has documents for discovery may specify in a

notice where the documents are and any other documents or recordings they refuse to be

inspected. The place could be a legal practitioner’s office inspection done during normal working

hours. Where there are claims for damages a judge must not give judgment in default where the

quantum is unknown. Privileged documents are an exception to discovery. Where a court grants

compulsion to produce a document for discovery and a party refuses, the court may strike out

that party’s defense and give judgment in default against that party. Where a party refuses for

documents to be discovered, the judge can inspect the document to assess the validity of the

claim of privilege. Tape recording includes a soundtrack, film, magnetic material on which

visual images, sound or other information can be recorded. The rules for discovery extend to

plaintiffs and defendants who are minors and to curators and litem.