UPDATE ON THE PROPOSED NEW RULES OF COURT

To All Members of the Malaysian Bar

UPDATE ON THE PROPOSED NEW RULES OF COURT

1. The Task Force on Combined Rules of Court (Task Force) was appointed by the Bar Council in 2007 to liaise with the Judiciary on a proposal for a single set of civil procedure rules for the High Court and Subordinate Courts.

2. The Task Force has been working tirelessly with the Judiciary to ensure that the proposed rules achieve the desired balance between justice and fairness to the litigant and efficient and speedy determination of cases by the Court. Its final comments on the Judges' proposed amendments were submitted to the Judiciary on 13.3.2009. Following that, the Task Force has been invited to sit with the Judges Committee to finalise the amendments within a timeline of 2-3 months. The Attorney General's Chambers is also represented on this Committee. The 1st meeting was held on 10.7.2009.

3. The purpose of the said Rules is to improve the administrative and delivery process of the legal system.

4. The amendments proposed by the Judges Committee will have far-reaching implications on the way litigation is practised.

5. Some of the crucial changes proposed are highlighted hereinbelow:

• Extensions of time cannot be mutually agreed upon by the parties and will only be granted by Court

• The Court can decide whether an application should be disposed without a hearing

• The Court can decide whether a matter should be disposed by Affidavit evidence only

• Applications to set aside an Order must be made within 7 days of service

• The overriding objective of the Rules is to enable the Court to deal with cases justly and expeditiously

• The criteria for dealing with cases justly include:

- ensuring that the parties are on an equal footing;
- saving expense;
- dealing with the case in ways which are proportionate-

i) to the amount of money involved;
ii) to the importance of the case;
iii) to the complexity of the issues; and
iv) to the financial position of each party.

- ensuring that it is dealt with expeditiously and fairly; and

- allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

• There will only be one (1) mode of originating process known as a Claim; and 1 application for all interlocutories

• There will be a new summary procedure which incorporates the current Order 14, Order 14A, Order 18 rule 19, Order 18 rule 11 and Order 33 rule 2 of the Rules of the High Court 1980

• The test in summary proceedings will be “the justice of the case' and not ‘triable issues”

• Some limited equitable jurisdiction (specific performance / rescission, etc) will be extended to the lower Courts

• All matters that are commenced will have a return date ie. similar to the current subordinate court practice of mention dates

• Statement of truth: The Rules require certain documents to be verified by a statement of truth by the party, his litigation friend or the legal representative of the party / litigation friend

6. The Bar Council is organising a Roadshow on the proposed Rules. The Roadshow will kick off with a forum at the Bar Council Auditorium on Tuesday, 11.8.2009 at 4.00 pm. [See Circular No. 225/2009 dated 3.8.2009]

In view of the imminent changes, members are urged to make every attempt to attend and participate in the discussion on 11.8.2009.

7. The Council is also engaging other stakeholders, namely the AG's Chambers and the Sabah & Sarawak Bars on some of the main objections to the proposed rules. This matter was discussed at the 2 nd Tripartite meeting with the Sabah & Sarawak Bars on 9.8.2009.

8. The Bar Council is working closely with the Judges Committee and hopes that collectively we can achieve a more effective and efficient judicial delivery system.

9. Please forward any comments or enquiries you may have on this matter to Vinodhini Samuel at the Secretariat at vino.bs@malaysianbar.org.my . For enquiries / information, please contact Vino at 03-2032 4184 / 03-2031 3003 ext 149.

Thanking you.

George Varughese
Secretary