In our previous chapters, we discussed the general process of initiating a suit and the rules on pleadings in Part 1, and Judgment in Default (“JID”) and the setting aside of the same in Part 2. We continue our discussion on the Malaysian Litigation Process in this article by discussing the Pre Trial and Trial stages.
Pre Trial Case Management
This stage commences after the close of pleadings, i.e. where the statement of claim, defence and reply to defence has been filed and exchanged. A Pre Trial Case Management (“PTCM”) is to be attended by both the parties whereby directions will be given by the Court for the parties to compile all documents relevant and in support of their respective case. The Court will also ask the parties to identify their respective witnesses.
The aim of the PTCM is for the parties to summarise their respective cases and to streamline the documents to be used in trial. This process aims to provide a speedy and smoother trial process.
Under Order 34 rule 2 of the Rules of Court 2012 (“ROC 2012”), the Court may direct any party or parties to the proceedings to appear before the Court to attend a PTCM regarding matters arising in the action or proceedings. The failure to attend the PTCM or comply with the directions given by the Court may result in the dismissal of the claim.
Exchange and Filing of Documents
During the PTCM, the Court may consider any matter and issue directions for, inter alia, the compilation of Bundle of Pleadings, Common Agreed Bundle of Documents, Issues to be Tried and Agreed Facts, List of Witnesses and finally Witness Statements, together with strict timelines given for all the filings.
Order 34 rule 2(2)(d) and (e) of the ROC 2012 provides for the classification of the bundle of documents. Documents can be classified into 3 parts, mainly, Part A whereby parties agree to the authenticity and truth of the contents of the documents, Part B whereby parties agree to the authenticity of the documents, but not the truth of its contents, and Part C whereby parties agree to neither the authenticity nor the truth of the contents of the documents.
A Statement of Issues to be Tried lists the main legal issues in dispute between the parties while a Statement of Agreed Facts lists facts which are not disputed by either parties and are contained in the Statement of Claim and Defence. On the other hand, Witness Statements are the evidence given by the respective witnesses to support and prove facts alleged by the parties.
As mentioned earlier, this entire process is to ensure that the trial process is conducted in a speedy and smooth manner, as the parties would have streamlined the issues to be tried, the agreed facts and the documents that are relevant to be considered in arriving at a decision.
During the trial, the examination of witnesses will be conducted by the parties in the following order: Examination-in-Chief of a party’s own witness, followed by Cross-Examination by the opposing party, and thereafter, Re-Examination of a party’s own witness.
Questions asked during the examination of witnesses are limited to the documents filed and marked by the Court. Generally, the Plaintiff will begin their case by calling witnesses to testify and produce documents for both the Plaintiff and their witnesses to identify. Once all witnesses have been called, the Defendant will then begin their case in accordance with the same procedure. All witnesses must give an oath or affirmation to testify truthfully before the examination begins.
Under Order 38 rule 2 of the ROC 2012, in a writ action, a witness shall give Evidence-In-Chief wherein the witness gives evidence of facts within his/her own knowledge and recollection, and is subject to Cross-Examination. Should the witness be absent, their statement will be inadmissible in Court.
At the end of the case once all the examinations of witnesses have been completed by both parties, the parties will then prepare their submissions which will then be followed by a reply to submissions, all of which will be heard by the Court.
Thereafter, the presiding Judge or Magistrate (depending on whether the trial is heard in the High Court, Sessions Court or Magistrates Court) will deliver the decision, which means the trial is concluded. The Court will either allow or dismiss the application or claim and award costs to the successful party, and the decision of the Court is final and binding on both parties.
Be that as it may, the avenue of appeal is open to any of the parties who are dissatisfied with any of the findings of the presiding Judge. The procedures of appeal will be discussed in our following articles.
In any event, the successful party is at liberty to file a written judgment which will be sealed by the Court. This written instrument is called a Final Judgment.
In summary, the preparation for trial and the trial process is a laborious yet necessary process as the mechanism is put in place to ensure that each party gets to submit their case or point of view in court for the presiding Judge’s deliberation. This in turn will ensure that justice is done.
For further information, please contact:
Darren Lai, Partner, Richard Wee