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Case Management for Civil Trials in Malaysia: Rationale & Process

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 Case Management for Civil Trials in Malaysia: Rationale & Process
ShahrulMizan Ismail1

Abstract
Pursuant to the reforms made to the Malaysian civil procedure, and with
the passing of the new Rules of Court 2012, many changes were
introduced which include among others, a more systematic and pro-
active system of case management. Although case management has been
in existence since before the aforesaid amendment, the new model is
expected to be more efficient, effective and practical in supervising
parties to get their matters disposed of by the court. This article will
explore the rationale of implementing of the new case management
system and the procedural framework governing the process.

Introduction

In many jurisdictions, case management has been widely accepted as a key factor in successfully
reducing delays and backlog of cases. This simultaneously leads to increased justice system
efficiency. In the old system, there was insignificant judicial control over a civil action at its
early stages. Parties in a civil proceeding would usually attend court to get a date, either for a
mention, trial or hearing for any relevant applications, and from there onwards, the court would
not be meeting them, up until they reappeared on the aforesaid prefixed date for the hearing or
the trial. In other words, the adversarial system is rather self-regulating in nature, and parties
were trusted to either independently resolve the case in between themselves, or proceed to trial
preparation to resolve the dispute in court. Parties were also given the freedom and discretionto
determine crucial matters with regards tothe planning of the trial without any judicial assistance
or supervision. The court takes part only when the case up for a mention, a hearing or for a trial.
In fact,a number of legal practitionersstill prefer this noninterventionist approach, and some even
criticizes reforming attempts to enhance the role of the court in supervising the management of
civil cases by way of pre-trial case management.

1
Associate Professor, Faculty of Law, UniversitiKebangsaan Malaysia (UKM)
Pursuant to the reforms made to the Malaysian civil procedure, and with the passing of the new
Rules of Court 2012, many changes were introduced to further strengthen the operations of
Malaysian civil courts, which include among others, a more systematic and pro-active system of
case management. Although case management has been in existence since before the aforesaid
amendment, the new model is expected to be more efficient, effective and practical in supervising
parties to get their matters disposed of by the court. This article will explore the rationale of
implementing of the new case management system and the procedural framework governing the
process. The main aim of this article is to provide basic understanding of the case management
system as embedded in the new Rules of Court 2012, the procedural steps that parties have to go
through in the system.

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'. 2Though there is no
standardized definition of the term “case management” for all jurisdictions, it usually refers
toseveral main attributes namely, constant judicial supervision over the management of the case,
early court involvement in the said management, properly scheduled durations & deadlines for
each step in civil litigation process, continuous monitoring to ensure compliance, and fixed dates
for trial sessions with strict restrictions on postponements. It is like a conference between the
judge and the parties namely, the Plaintiff and the Defendant, who are usually represented by
their solicitors. “A case management 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.”3 If parties do not reach any settlement at the case management stage, the matter will
proceed to trial.

2
UmmeySharabanTahura, Case Management System To Reduce Case Backlog, http://www.thedailystar.net/case-
management-system-to-reduce-case-backlog-58616 (last referred on the 26/ 7 / 2016)
3
http://definitions.uslegal.com/c/case-management-conference/ (last referred on 8th of August 2016)
In simple words, case management can be defined as a 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. For 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. Parties are expected to firstly orally inform the court of any applications that they
intend to make, and the court will evaluating their reasons for wanting to do so before deciding
whether they should proceed.

Case management could also be understood as a “mechanism to schedule proceedings”.Civil

litigation in Malaysia is substantially procedural, consisting of various gradual steps towards
obtaining judgment from the courtsuch as the filing & serving of a writ & statement of claim, the
filing and serving of memorandum of appearance and statement of defence& counter claim,the
filing and serving of reply to defence (if any), the close of pleadings, the process of gathering
and administering evidence (discovery, interrogatories, subpoenae etc.), the filing and hearing of
relevant interlocutory applications that take place before trialcommences or during trial, but
before a decision is delivered and many more. Everystep of the civil litigation process has a
scheduled time frame in which it must be completed. Case Management helps the court to set
forth a schedule for the completion of the aforesaid steps, and it helps the court to ensure that all
parties are complying with the schedule. In short, case management refers to the schedule of
litigation steps involved in a civil action.
It is also a system that allows court to monitor proceedings.“The term case management is also
used to refer to systems in which court assume closer administrative control over the litigation
process than is traditionally associated with common law litigation”4

It‟s an “occasion where the court considers 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 but have not been dealt with and enables the court to give future
directions as appear best to secure the just, expeditious and economical disposal of the
action…”5

Why Is Case Management Necessary?

The actual factor that leads to Malaysian courts progressively adopting a more rigorous and
meticulous practice of case management is very much due to the numerous delays and backlogs
that had built up in the courts throughout the past.6The objective of case management is to
eradicate this backlog of cases and at the same time, to ensure the speedy disposal of current
cases.7The former Chief Justice of Malaysia, Yang AmatArifTunZakihad presented in Asia
Pacific Courts Conferencein 2010 in Singaporethat there were 98% of postponements of hearing
of court cases by counsel in civil cases at the Kuala Lumpur Sessions Courts. In lower courts,
there were settlements which were “advocated too late at the hearing of the matter, which could

4
Boulle, L., Mediation: Principles Process Practice.2nd Edition. Queensland, Australia, LexisNexis Butterworths,
(2005).
5
Order 34, Rules of Court 2012
6
Before the reforms undertaken by the Chief Justice in 2008, there has already been a case management practice in
the Malaysian civil courts. However, it was not as meticulous and as fastidious as what is being practiced today.
Parties are very much left to their own devices and case management sessions functions merely as platform to
inform the court what was currently happening in the case. It was more of a notification to the court, and at the end
of the session, the courts will just fix another date for parties to come back and apprise the court with the latest of
the case. In other words, although there was a case management session, the „managing‟ element was not as efficient
and as effective as it is today. Sometimes, case management sessions can go up to 30 sessions the case actually went
to trial. This is very much caused by the fact that there was lack of monitoring an supervision by the courts. As an
example, during that time, even the initiation of the pre-trial case management itself was left in the hands of the
parties. The old Rules of High Court 1980 requires the Plaintiff to file in a form into the court to initiate the process,
failing of which the court will then demand for justification why it was not done. In this system, weeks and months
could go by before the first pre-trial case management system could be called. This of course eventually leads to
critical backlog of cases.
7
Justice James Foong, Frame Work Of Judicial Cooperation In Case Management: The Experience Of Each
ASEAN Country, 31st December 2011, http://www.aseanlawassociation.org/11GAdocs/workshop2-malaysia.pdf (last
referred on 27 / 7 / 2016)
have assisted the parties where possible in small claims procedure”.8Hence, the fundamental idea
behind the introduction of the „pre-trial case-management‟ system was “that the justice system
was under-managed and that a concerted effort to adopt case management practices, rather than
merely adding more resources, would reduce the delays and backlogs”.9According to Justice
James Foong, the proper case management systemhas successfully resolved the problem of
backlog of cases in the Malaysian courts:

“I remember at a General Assembly held in 1986 in Bangkok, Thailand that I sat and
listened with admiration to a paper presented by a member of the Singapore ASEAN
LAW delegation on the successful application of case management to overcome the
backlog of cases in Singapore. After the session those who remained seeking
clarifications came to a common conclusion that to achieve what Singapore has done by
way of case management to reduce the backlog of cases, there must be a genuine and
dedicated commitment to it. And it requires proper planning, teamwork and a capable and
competent leader. [2] In Malaysia, we were able to copy some of the Singaporean
approaches while supplementing it with many of our own. Under the dynamic leadership
of Chief Justice ZakiAzmi who became Chief Justice of the Federal Court of Malaysia in
2008, a comprehensive plan to modernize the judiciary by proper case management was
adopted with the sole aim of eradicating the backlog of cases. As part of this management
team under Chief Justice Zaki, I am happy to report that this programme is a huge
success. In many ways this was due to the exchange of ideas and studies made with
counterparts from ASEAN member countries.”10

The incontrovertible reason why case management successfully performs its functions in
Malaysia is due to the close monitoring and supervision that court now provides to every each
case. It disciplines the parties and lessens any opportunities to manipulate the system.It was
discovered that in many instances in the past, in many of cases that were routinely set for trial, a
large number of them could easily have been resolved in advance of the trial date if there had
8
Judiciary achieves high disposal rate of court cases - See more at:
http://www.mysinchew.com/node/49935#sthash.UrB4qG6j.dpuf (last referred on 8/8/2016)
9
Juriah Abdul Jalil and ShahrulMizan Ismail, International Encyclopedia for Civil Procedure,
http://www.kluwerlawonline.com/abstract.php?area=Looseleafs&id=CIVI20150544 (last referred on 9/8/2016)
10
Justice James Foong, Frame work of judicial cooperation in case management: the experience of each ASEAN
country, http://www.aseanlawassociation.org/11GAdocs/workshop2-malaysia.pdf (last referred on 8/8/2016)
been more aggressive judicial involvement in resolution discussions.In Tan Geok Lan v La Kuan
@ LianKuan [2004] 3 MLJ 465, Justice Mohd Noor Ahmad had said, “The significance of this
procedure (O 34) 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 pre-trial stage, ensuring that the practices and procedures
applicable during that stage are complied with promptly and not abused.”11

A good example would be the case of Genisys Integrated Engineers Pte Ltd (suing on
behalf of UEM GenisysSdnBhd in a representative/derivative capacity) v PatiSdn Bhd.12The
plaintiff in this case had initiated the action in 2003.On 21.2.2005, the court ordered the plaintiff
to amend its pleadings to replace Genisys Integrated with UEM Genisys as the
plaintiff.Unfortunately, the plaintiff did not take any action in pursuance of the said order. It was
only two years after the order dated 21.2.2005 that UEM Genisys sought leave from the court to
substitute UEM Genisys as the plaintiff and leave was granted by the court on 4.2.2008 requiring
UEM Genisysto amend the writ of summons and statement of claim. Since 2008, 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 in
February 2012 (after four years had passed) which they now seek to extend time for filing the
amended writ of summons and statement of claim.In response, the defendant had applied at the
case management stage, to strike out the case of the plaintiff on the ground of want of
prosecution. The court held in favour of the defendant saying that it had inherentjurisdictionto
strike out any cause or matter for any justifiable reasons within the norms of procedural
jurisprudence and practice. This especially so since during the time the case was heard by the
court,Order 34 of the Rules of the High Court 1980 requires the court to deal with such issues
at case management stage itself to ensure just, economical and expeditious disposal of the case.13
In his judgment, the judge highlighted on the point that any form of delay may amount to abuse
in the present system of „tracking‟ and casemanagement and the general undertaking given bythe

11
[2004] 3 MLJ 465
12
[2012] 9 CLJ 494
13
see Charles Forte Investment Ltd v Amanda [1963] 1 Ch. D 240; Chip Chong Sawmill Co SdnBhd&Ors v Chai
KhiumFui [1978] 2 MLJ 24.
Chief Justice to the public at that time, that any suit in the court filed will be disposed of within 9
to 12 months.The court further refers to its power under Order 92 rule 4, namely inherent
jurisdiction of the court, which reads as follows. “For the removal of doubts it is hereby declared
that nothing in these rules shall be deemed to limit or affect the inherent powers of the Court to
make any order as may be necessary to prevent injustice or to prevent an abuse of the process of
the Court.”14

This is a classic example of what happens when you leave matters relating to the
litigation of the case solely in the hands of the parties themselves. Lackadaisical approach in
complying with court‟s order and mismanagement of house-keeping matters tend to happen, and
when it does happen, it delays the justice process altogether. Consequently, the opposing party
will be the one that has to suffer. If a court intervenes during the case management stage, it could
closely monitor the steps followed by each party, guide them in taking the right action and
ensures all parties perform their duties accordingly.

But maladministration of the case is not the only problem that occurs when parties are
given the autonomy to manage their own case. Sometimes, unscrupulous parties may resort to
the ruse of filing numerous interlocutory applications just so that the trial will be delayed.
Sometimes this also happens because the parties are represented by an inexperienced lawyers
who are not entirely familiar with the civil litigation process.

In the case of JawiAkLandu v. Sunny Inspiration SdnBhd,15 it was held by the court that
that the administration of civil justice will run expeditiously if there is a law to restrict all
interlocutory applications.16 The judge had referred to the facts of this case asa classic example
of why such is necessary. In this case, the plaintiff has filed the suit in 2004 and ever since then,
too many applications have been filed and the number of documents went up to enclosure 151
although the case is still merely at the interlocutory stage. According to the judge, much judicial
time has been wasted hearing non-productive applications and in order to arrest further

14
15
JawiAkLandu& Sunny Inspirations SdnBhd& Anor [2007] 9 CLJ 1
16
JawiAkLandu& Sunny Inspirations SdnBhd& Anor [2007] 9 CLJ 1
interlocutory application and delay, she had to direct the suit to be disposed of immediately. In
her judgment, she advocated a strict approach in evaluating whether an application should or
could be made whereby the law must specifically say that interlocutory applications cannot be
filed without leave of the courtand such leave must be by way of application. She further
proposed for the oral application and consent to be obtained at the case management stage, and
that if there is to be an exception, the exception must be for limited areas only, namely,
injunction or other immediate and necessary interim reliefs.17

Apart from the aforesaid, there also instances where parties recklessly and blatantly
disregard procedural requirements and court orders. Without a close monitoring system i.e.
through a rigorous and meticulous case management process, the parties are not reminded of
their duties and/or reprimanded when they deliberately choose not to follow them. In another
case of Sunrise West SdnBhd&Ors v Pravin MahtaneyRamchand& Anor [2012] 1 MLJ 414, 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. 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.

The Important Objectives of Case Management

Based on the previous discussion, one could summarize the objectives of case management into
three. One of the most fundamental objectives of case management is to make more resourceful
use of the of court‟s time. According to the RAND Institute for Civil Justice in the USA,using
case management has significantly reduced courts‟ time in disposing cases.18In England and
Wales it has successfully instilled a new mindset among the legal practitioners, gradually

17
JawiAkLandu& Sunny Inspirations SdnBhd& Anor [2007] 9 CLJ 1
18
Resnik, “Managerial Judges” (1982) 96 Harvard Law Review 376, taken from Evan Bell, Judicial Case
Management, Judicial Studies Institute Journal, 2009, at p. 77
eliminating “the adjournment culture”.19In New Zealand case management has been successful
in significantly reducing the time between filing and disposal of cases.20 The second objective of
the case management system is to lessenlawsuit‟s costs. According to Lord Woolf, the increasein
the efficiency of the litigation process will ultimately lead to reductions of costs.21Through the
case management system, parties will be guided all throughout the process of managing their
case, before it will finally be disposed of by the court. With the court‟s constant supervision,
parties will be prevented from either making unnecessary interlocutory applications or doing
things not in accordance with what is required out of them by the procedure. This will shortens
court‟s time and will eliminate possibilities of unnecessary expenses. The last goal of constant
and consistent judicial case management is to achieve fairness for all parties.Lord Woolf
emphasized that active and effective management of litigation proceeding is an essential means
of dealing with cases justly.22“If litigation decisions are left entirely to the partiesthis frees them
to use expense and delay to gain unfair tactical advantages.”23“Judges have expressed frustration
at delaying tactics being used to obstruct the resolution of the real issues”24 and believe that
“active judicial management discourages “interlocutory procedural games and gamesmanship”.25

Case Management System For Civil Trials in Malaysian Court Today

The Rules of Court 2012 allows the court to monitor the progress of the proceeding by giving
direction at the Pre-Trial Case Management under Order 34 of the Rules of Court 2012.
According to the order, the purpose of case management is to ensure just, expeditious and

19
R. v. Khyam and others [2008] E.W.C.A. Crim. 1612, taken from Evan Bell, Judicial Case Management, Judicial
Studies Institute Journal, 2009, at p. 76
20
“Delivering Justice For All: A Vision for New Zealand Courts and Tribunals”, New Zealand Law Commission,
Report No 85, March 2004, p. 197, taken from Evan Bell, Judicial Case Management, Judicial Studies Institute
Journal, 2009, at p. 77
21
Evan Bell, Judicial Case Management, Judicial Studies Institute Journal, 2009, at p. 77
22
“Access to Justice: Final Report”, Lord Woolf, July 1996, Chapter 1, para. 4., taken from Evan Bell, Judicial Case
Management, Judicial Studies Institute Journal, 2009, at p. 77
23
Evan Bell, Judicial Case Management, Judicial Studies Institute Journal, 2009, at p. 77
24
Speech by Robert McClelland, Attorney-General of Australia, at the Australian Financial Review Legal
Conference 2008, Melbourne, 17 June 2008., taken from Evan Bell, Judicial Case Management, Judicial Studies
Institute Journal, 2009, at p. 77
25
“The Woolf Reforms after 9 years: Is civil litigation in the High Court quicker and cheaper?”, Sir Igor Judge,
Speech to the Anglo-Australasian Lawyers Society, Sydney, 16 August 2007., taken from Evan Bell, Judicial Case
Management, Judicial Studies Institute Journal, 2009, at p. 77
economical disposal of the proceeding. The excerpt of the provision is hereby reproduced in
verbatim:

ORDER 34
PRE-TRIAL CASE MANAGEMENT
1. Orders and directions for just, expeditious and economical disposal of proceedings (O 34
r 1(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.

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 the case.

At the hearing of the case management the court may consider any matter including possibility
of settlement of all or any of the issues in the action or proceedings. The court may also 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. 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.
The direction of the court may also include 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. The court may give
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. 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. At the case management stage the 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

General Principles of Pre-Trial Case Management In Malaysia

1. Attendance

According to Order 34 Rule 4 of the Rules of Court 2012, “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”26.Order
34 Rule 6 further emphasize on the importance of attending the case management by stating the
implication of being absentfrom the session. According to the rule, “if at the time appointed for
the pre-trial case management, any party fails to attend, the Court may 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.”27 The rule further mentions that an order made by the Court in the
absence of a party concerned or affected by the order may only be set aside by the Court on the
application of the defaulting party, on any terms as it thinks just. In other words, a party that fails
to attend the case management session will have to incur extra expenses and perform additional
tasks to apply for the order to be set aside, and this application does not in any way guarantee the
granting of the order. During the hearing of the application, the court will be looking into among

26
Order 34 Rule 4 of the Rules of Court 2012
27
Order 34 Rule 6 of the Rules of Court 2012
others, on whether the defaulting party has any justifiable reason for theirabsence from the case
management session.

2. Adjournment

Having said the above, it must also be mentioned here that a pre-trial case management 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”.28 Order 34 Rule 6 (3) further substantiates this by stating,
“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.”29

3. Parties’ Duties during PTCM

Case management is usually the avenue that will be used by the court to resolve any ancillary
matters (if any) that may disrupt or delay the trial proceeding. Hence, the first and utmost duty of
a party is to give all relevant information to the court during PTCM

Order 34 Rule 8 of the Rules of Court 2012 states, “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.”30

Parties are also expected to make all interlocutory applications at PTCM. For example, Order 34
Rule 9 instructsparties to whom the notice to attend pre-trial case management has been
addressed to 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 case”31. The rule further clarifies that any application made 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.

28
Order 34 Rule 5 of the Rules of Court 2012
29
Order 34 Rule 6 of the Rules of Court 2012
30
Order 34 Rule 8 of the Rules of Court 2012
31
Order 34 Rule 9 of the Rules of Court 2012
Procedure for Pre-Trial Case Management & Powers of the Court

1. Notification of Pre-Trial Case Management

In theory, according to 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.In actual practice however, 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

2. Powers of the Court

The powers of the Court during Case Management may generally be divided into four.
Firstly, the general power to issue any orders or directions that will ensure just, expeditious and
economical disposal of the proceedings. According to Order 34 Rule (1)(1) of the Rules of Court
2012, “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.”32

Secondly, the court is also vested with the power to take dramatic measures against any
parties should they fail to adhere with any orders or directions from the court. In fact, the failure
of any parties to follow these orders and directions during the PTCM could affect the outcome of
the case. Order 34 Rule 2(3) of the Rules of Court 2012 states that “The Court, having given
directions under rule 2(2) or rule 3 may either on its own motion or upon the application of any

32
Order 34 Rule (1)(1) of the Rules of Court 2012
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.”33

A good example would the case of Tan Sri Datuk DiongHiew King @ TiongHiew
King v Lau SweeNguong @ Lau Sui Guang[2014] 8 MLJ 575, 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. 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 by 27
July 2012. 34

In this case, the defendant had only one witness statement to be filed, i.e. his own, whilst
the plaintiff had six. Prior to the direction being made, the Court had rejected the defendant's
solicitor's written request to vacate the pre-fixed trial dates because counsel handling the matter
would be abroad at the time. On 30 July 2012, the defendant's solicitor again wrote to Court, this
time to inform that the defendant would be changing his solicitor for a second time and asking
for an extension of time for the defendant‟s witness statement to be filed and exchanged. The
request was objected to by the plaintiff‟s solicitor on the ground that the matter was being
unnecessarily delayed. The Court disallowed the defendant‟s request. The newly appointed
solicitor for the defendant filed the latter‟s witness statement only on 9 August 2012. It was
contended by him that the late filing did not prejudice the plaintiff and that even if it did, any
prejudice could be compensated for with an order for costs. However, the Court disagreed with
the defendant‟s contention and held that:

“...the failure of the defendant to comply with the direction of the court given on 21 June
2012 constituted an abuse of the process of the Court. ...it had obstructed the smooth
administration of justice by the Court in respect of the plaintiff's action. ... it has caused
the bona fides of the defendant‟s defence to the plaintiff's claim as set out in his defence
to be highly questionable. ... the Court was of the impression that the defendant was not

33
Order 34 Rule 2(3) of the Rules of Court 2012
34
Tan Sri Datuk DiongHiew King @ TiongHiew King v Lau SweeNguong @ Lau Sui Guang
[2014] 8 MLJ 575
 really sincere in defending the plaintiff‟s claim. The defendant could not show any reason
for his non-compliance of the previous direction of the Court to file and exchange his
witness statement with learned counsel for the plaintiff on or before 27 July 2012, let
alone a good reason.”

Thirdly, based on Order 34 rule 2(5) of the Rules of Court 2012, the Court could make
any order to give effect to any settlement reached by the parties. Order 34 rule 2(5) states that
“At any time during the pre-trial case management where the parties are agreeable to a
settlement of some or all of the matters in dispute in the action or proceedings, the Court may
enter judgment in the action or proceedings or make such order to give effect to the
settlement”.35 This in other words mean that the court is given the power to make judgment that
resolve matters between the parties even at the case management level, provided that there is
consent between both plaintiff and defendant.

Fourthly, the Court has power to make any orders as it thinks fits or adjourn the case
management, when parties fail to attend the Pre-Trial Case Management. According to Order 34
rule 6(1) of the Rules of Court 2012, “If, at the time appointed for the pre-trial case management,
any party fails to attend, the Court may 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.”36
The Court could also order for the case management to be adjourned based on Order 34 rule 6(3)
of the Rules of Court 2012, which states to the effect that “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.”37

Matters To Be Discussed During Pre-Trial Case Management

Numerous matters in relation to the trials are required to be discussed during case management.
It will be beyond the purview of this article for all matters to be thoroughly discussed. The

35
Order 34 Rule 2 (5) of the Rules of Court 2012
36
Order 34 Ryle 6 (1) of the Rules of Court 2012
37
Order 34 Rule 6(3) of the Rules of Court 2012
following are some of the more important and prominent ones that should be discussed for the
purpose of substantiating the analysis in this article.

1. Mediation

According to Order 34 r 2(2)(a), the Court may consider at a pre-trial case management,
“any matters 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 mediation in accordance with any
practice direction for the time being issued.”38 This is actually one of the reforms done to the
previous civil procedure rules, and is essentially based on:

“The Chief Justice of Malaysia hereby directs that with effect from 16th of August 2010,
all judges of the high court and its deputy registrars and all judges of the sessions courts
and magistrates and their registrars may, at the pre-trial case management stage as
stipulated under Order 34 Rule 4 of the Rules of the High Court 1980 ...give such
directions that the parties facilitate the settlement of the matter before the court by way of
mediation.”39

2. Bundle of Pleadings

According to Order 34 Rule 2(2)(b) & (c)), during case management, the could should
also discuss with the parties the period within which the plaintiff is to file the bundle of
pleadings.40The rule further provides that the bundle should beconsisting 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

38
Order 34 r 2(2)(a),
39
Practice Direction No. 5/2010
40
Order 34 Rule 2(2)(b) & (c))
 (ii) the pleadings (including any affidavits ordered to stand as pleadings), any notice or

order for particulars and the particulars given;41

3. Bundle of Documents

Apart from the Bundle of Pleadings, under Order 34 Rule 2(2)(b) & (c)), the court will
also be prescribing to the parties, the period within which they are to file a bundle containing all
documents that will be relied on or referred to as evudencein the course of the trial by any party,
and this will be including documents referred to in the witness statement of any witness during
the trial.42 According to Order 34 Rule 2(2)(d) - (i), 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;44

3. 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.Order 34 Rule

41
Order 34 Rule 2(2)(b) & (c))
42
Order 34 Rule 2(2)(b) & (c))
43
Order 34 Rule 2(2)(b) & (c))
44
Order 34 Rule 2(2)(b) & (c))
2(2)(j)requires parties to file of a statement of agreed facts, and the direction or order for them to
do so will usually be given by the court during the case management session.

4. 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 management stage, finalize these issues between the parties and fix for them the
date upon which the document is to be filed.

5. Of Witnesses

According to 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.

7. Date & Length of the Trial

45
Order 34 Rule 2(2) of the Rules of Court 2012
 O 34 r 2(2)(t) provides power for the court to also use the pre-trial case management
sessions to fix the date of the trial and to determine the estimate length of the trial.

Conclusion

Indeed the new case management system has not been able to eliminate entirely, all
problems of delay in proceedings. Nevertheless, it has successfully improved the system and
subsequently reduced the backlog of cases in the previous system.Directions from the court
during the case management sessions have been able to apportion the case according to the value
of the claim, its importance, complexity, etc. Each case requires a different degree of supervision
and a different method of case administration. Through the new case management system, orders
are able to be customized according to the special and unique nature of each case that comes to
court.This allows the judges more time to deal with the new and more complex cases. The
effective and efficient features of the case management system will also lead to the decrease in
the number of claims commenced since under close monitoring from the court, parties will be
more inclined to opt for alternative dispute resolution methods such as mediation.

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