PRE-TRIAL PROCESS

CASE MANAGEMENT
Order 34
WHAT IS CASE
MANAGEMENT?
 Case Management is part of the civil court
procedure in Malaysia. It is a mechanism that
aims at delivering justice efficiently in time by
adopting a 'rights based approach’.
 The session usually happens after a plaintiff

begins a law suit, but before the trial. The

meeting is not a trial and as such witnesses
don't need to be present. The main purpose of
the meeting is to try settling some or all of the
issues in dispute before going to trial.
ORDER 34
R1(1)
Notwithstanding anything in these Rules, 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 or can be dealt with on

interlocutory applications and have not already been
dealt with may so far as possible be dealt with; and

(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 thereof
R1(3): Where any party fails to comply with any order
made / direction given by the Court under paragraph (1),
the Court may dismiss the action, strike out the defence
or counterclaim / make such other order as it thinks fit.

R2(1): Without prejudice to rule 1, at any time before any

action/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.

R2(2): At a PTCM, the Court may consider any matter

including the possibility of settlement of all/any of the
issues in the action/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) to (t).
R2(3): The Court, having given directions under rule 2(2)
/ rule 3 may either on its own motion / upon the
application of any party, if any party defaults in
complying with any such directions, dismiss such
action / proceedings / strike out the defence or
counterclaim / enter judgement / make such order as it
thinks fit.

R3: Notice to Attend PTCM – Form 59

R6(1): If, at the time appointed for the PTCM, any party
fails to attend, the Court may dismiss the action /
proceedings / strike out the defence or
counterclaim / enter judgment / make such other order
as the Court thinks fit
Stocktaking
 Exercise by the judge
 To determine whether the case is now ready

for trial; and

 To enable the court to dispose of any

outstanding matters before commencement

of trial.
CASES
Md Amin Bin Md Yusof v. Cityvilla Sdn.
Bhd.
 O34 R7 of ROC provided for the discretionary
power of the judge to make such order against the
defaulting party ‘as meets the ends of justice’
should any party fail to comply with any direction
given by the judge at any PTCM conference.
 However, the order should not be made unless
there was a history of failure to comply with
other orders or indeed intentional and
contumelious.
CASES
Hong Leong Assurance Bhd v. American Home
Assurance Co. Malaysia (HC)
 During case management, the High Court judge set a date for hearing
of P’s suit and further directed to P to file and serve its witness
statements at least 21 days before the date of trial. The trial was
subsequently postponed twice. When the suit finally came up for
hearing 3 years later, P had not complied with the said direction. P’s
counsel requested an adjournment for P to comply with the direction.
P’s explanation was that the original dates of the trial had been
deferred by the court.

 HELD: The fact that the trial dates were deferred could not be a valid
excuse for the non-compliance. The High Court’s direction, in the
absence of any subsequent direction to the contrary, had still to be
complied with, regardless of the deferment. The excuse was a lame
one. In the instant case, although D’s counsel did not object to
plaintiff counsel’s request for the adjournment, dismissal of the suit
without any order as to costs, would meet the ends of justice .
DISCOVERY
ORDER 24
WHAT IS DISCOVERY?

 Discovery and inspection of documents refer

to the process of gathering relevant
documents from the opposite party before
the trial. This process may be adopted by any
of the parties when preparing and completing
their case. It becomes effective after the court
grant the order for discovery.
 O 24 r 3(1): Subject to the provisions of this rule and of rules 4
and 8, the Court may at any time order any party to a cause or
matter (whether begun by writ, originating summons or
otherwise) to give discovery by making and serving on any other
party a list of the documents which are or have been in his
possession, custody or power and may at the same time or
subsequently also order him to make and file an affidavit verifying
such a list and to serve a copy thereof on the other party.

 O 24 r 7(1): Subject to rule 8, the Court may at any time, on the

application of any party to a cause or matter, make an order
requiring any other party to make an affidavit stating whether any
document specified or described in the application or any class of
document so specified or described is, or has at any time been, in
his possession, custody or power, and if not then in his
possession, custody or power when he parted with it and what
has become of it.
 General rule:

Discovery is only allowed against a person who

is a party to the proceeding and not against
third parties. It is improper to join a person as a
party merely for the purpose of obtaining
discovery against him. If information or
documents in the possession of a person are
required, the proper procedure is to call him as
a witness to give oral testimony or to serve a
subpoena duces tecum.
CASES
Norwich Pharmacal Co v Commissioners of
Customs and Excise (HL)

 P was the exclusive licensee of a patent for an antibiotic

substance. Between 1960 and 1970 unlicensed shipments of
the chemical were imported into Britain, therefore P knew that
its patent was infringed but was unable to identify the
importers.
 D held information that would identify the importers, but
would not disclose this, claiming that they had no authority to
give such information. P brought proceedings against D, to
force D to disclose the names of the importers.
 (HC) A discovery order was made limited to the names and
addresses of the importers in question.
 (CA) P had no cause of action against D for
infringement of patent. P were not entitled to an
order compelling D to disclose the names of
importers, for no action for discovery could be
brought against a party against whom there was no
reasonable cause of action. Decision of HC reversed.
 (HL) If through no fault of his own a person gets
mixed up in the tortious acts of others so as to
facilitate their wrongdoing, he may incur no personal
liability but he comes under a duty to assist the
person who has been wronged by giving him full
information and disclosing the identity of the
wrongdoers. Decision of CA reversed.
 NOTE: This is also called a Norwich Pharmacal order.
First Malaysia Finance Bhd v Dato’ Mohd Fathi (SC):

 P was the beneficial owner of shares in D5

company. Several companies under the control of P
had obtained loans from D5. P had contracted to
sell the shares in D5 to D1 to D4.
 They had an option to pay the purchase price to
the accounts of those companies controlled by P.
As a result of the sale, D took control of D5.
Eventually P sued D for the purchase price. D
claimed that the money was paid towards the loan
owed by P’s companies for the benefit of D5. P
applied for discovery of the relevant accounts
showing the alleged payment.
 Held: The general rule as laid down in Norwich Pharmacal Co v
Customs and Excise Commissioners is that discovery to find the
identity of the wrongdoer is available against anyone against whom the
plaintiff has a cause of action in relation to the same wrong.

 To this general rule, there is an exception that if, through 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 wrongdoers.

 In this case the identity of those who were alleged to have committed
the wrongful acts were known to P and had been cited as D1 to D4 in
the action. Further, the cause of action pleaded against D1 to D4 was
grounded in contract and not in tort, so that there was no question of P
being able to invoke the exception defined in the Norwich Pharmacal
case, which related to tortious acts.
INTERROGATORIES

ORDER 26
WHAT IS INTERROGATORIES
 Commonly known as ‘discovery of facts’
 They are questions served by one party, with

leave of the court, to the other has to answer

under oath, usually by an affidavit
 The questions may relate to any matter which

supports the interrogator’s case or to

impeach or destroy his opponent’s case
O 26 r 1: Interrogatories
with leave
O 26 r 2: Interrogatories

without leave – before close

of pleadings
CASES
Pertubohan Berita Nasional Malaysia v Stephen Kalong Ningkan (fFC):

 P sued D for libel. The words complained of appeared in a newspaper

which was admitted to have been published by D. However, D would
not admit doing so to various other persons as claimed by P in
Malaysia and Singapore. P applied to court for an order to D to
answer interrogatories to ascertain the scope of the publication.
 Held: Right from the commencement of the hearing if P had any real

interest in the publication of the words complained of in these other

newspapers, he could, with reasonable diligence but without undue
labour, have ascertained for himself which other newspapers had
published the alleged libel.
 Then he could have put it to D by appropriate interrogatories

whether besides those which had printed the alleged libel there were
others who were unknown to him. But, he did not then seem very
interested and he did nothing about discovery until 7 years later.
THE END