Chapter 18: Preparation for Trial PDF

Chapter 18: Preparation for Trial Prof R Baboolal-Frank Outline Inspection or Enrolment and set Discovery of Medical examination of do...

Chapter 18: Preparation for Trial Prof R Baboolal-Frank Outline Inspection or Enrolment and set Discovery of Medical examination of down documents examinations property and things Presentation of a Further particulars plan, diagram, Expert evidence for preparation of Pre-trial conference model or trial photograph Evidence on commission, Subpoena interrogatories and affidavit Enrolment and Set- down After close of pleadings (litis contestatio), the matter must be set-down and enrolled for trial. Notice of set-down must be served and filed and a practice note must be filed to have a matter enrolled for trial. (HC) In the MC you apply for a trial date that is allocated in terms of MCR 22(4) within 10 days of the application. The notice of set-down for the trial is done 15 days after close of pleadings and at least 20 days before the trial date.  Discovery of documents The purpose of The discovery affidavit In order to use these discovery is to allow sets out the list of documents at trial the parties to prepare documents that will be either the authenticity for trial and to answer discovered by either is proved or admitted. to each other’s case. party under oath. Discovery procedure HCR 35 and MCR 23 provide for what must be discovered and the manner that it is discovered. The party required to make discovery must discover the following: The High Court requires discovery of “documents and tape recordings” A tape recording includes a sound track, film, magnetic tape, record or any other material on which visual images, sound or other information can be stored. The Magistrates Courts require discovery of documents and tapes including all forms of digital, electronic and other recordings. Discovery Procedure [continued] The following documents need not be Documents which are in Documents relating to discovered: statements the party’s possession or any matter in question of witnesses taken for under his or her control, in such action whether purposes of the or which have previously such matter is one proceedings; been in the party’s arising between the communications possession or under his party requiring between attorney and or her control, but discovery and the party client; communications which are no longer in required to make between attorney and the party’s possession or discovery or not. advocate; pleadings, under his or her control. affidavits and notices in the action. When can a party call for discovery HCR 35(14) and MCR 23(15) HCR 35(12) and MCR 23(13) HCR 35(1) and MCR 23(1)(b) make available for inspection deliver a notice requesting a with the leave of the court. within 5 days a specified document or tape recording document or tape recording.  If a party believes that there are, in addition to the documents already disclosed in the discovery affidavit, other relevant documents in the possession of the opposing party, the party may call for further discovery in terms of HCR 35(3) or MCR 23(3). Two remedies available: Further discovery In terms of HCR 35(6) or MCR 23(6) to make the additional documents available for inspection. To state on oath within 10 days that the additional documents are not in the opposing party’s possession, which case the opposing party must state the whereabouts of the additional documents if they are known.  A party to the proceedings would have to undergo That the party on whom it The notice compelling a further medical is served is required to medical examination examination when submit herself or himself to states: compensation is an issue in medical examination; dispute. Medical The person or persons who examinations The nature of the The place, date and time of will conduct the medical examination required; the examination; examination; That the other party may have his or her own medical adviser present at the examination.  The notice must be accompanied by a remittance in respect of the reasonable expenses to be incurred by the other party in attending the examination. Medical The scale of such expenses is set out in examinations the rules. The notice must give the other party at least 15 days notice of [continued] the examination. The party receiving the notice has 5 days in the HC matter and 10 days for a MC to object to the medical examination.  The notice may require that the property or a fair The party who requested the examination must The party requesting the examination bears the sample of the property remain available for obtain a full written report from the examiner costs of same, which costs fall part of the main inspection or examination for a period not more within two months from examination or such action in dispute. than 10 days from the date of receiving the notice. period determined by the court. Inspection or examination of property and things  An expert gives oral testimony regarding their specialized subject matter in a particular field Expert evidence A summary must be given to the other side relating to the experts evidence presented at the trial Not less than 15 days before the hearing the party wishing to call the expert must deliver a notice of an intention to do so. Not less than 10 days before the hearing the party wishing to call the expert must deliver a summary of the expert’s opinion and the reasons. Joint expert minute must be done relating to the same area of expertise.  In the HC not less than 15 days before the hearing Presentation A party tendering and in the MC not less evidence of any plan, diagram, model or than 10 days before the hearing, the party of a plan, photograph must comply wishing to tender such with certain requirements. evidence must deliver a notice of intention to do diagram, so. model or The notice must state The notice must require every party receiving the photograph that every party is entitled to inspect the plan, diagram, model or notice to admit the plan, diagram, model or photograph within 10 photograph. days in the HC and 5 days in the MC of receiving it.  HCR 21(2) and MCR 16(2)(a) provide that any party may deliver a notice In Thompson v Barclays Parties may request further Bank DCO the court set out particulars for the requesting “only such the purpose for further preparation for trial. further particulars as are Further particulars for trial namely: strictly necessary to enable him to prepare for trial” particulars for To inform one party with greater precision what the other party is going to Having regard to the above, nevertheless not to tie the preparation for To prevent surprise; prove in order to enable an opponent to prepare a case to combat counter- other party down and limit his or her case unfairly at trial. trial allegations; Notice for requesting further particulars must not be brought later than 20 days before the trial.  An application may be brought for an order for the delivery of the further particulars or dismissal of Failure to the action striking out the defence. provide The court may make such an order further that it deems fit. particulars At the end of the trial, costs regarding further particulars will also be determined.  Rule 37 amended as from 1st July 2019 The date, time and place of the pre-trial conference may be amended by agreement. Provided that the pre-trial conference is not held more than 30 days prior to the hearing. Each party shall not later than 10 days prior to Pre-trial the pre-trial furnish every party with a list of: conference (a) admissions which such party requires; (b) the enquiries which such party will direct and which are not included in a request for further particulars for trial; (c) other matters regarding preparation for trial which such party will raise for discussion. Pre-trial conference [continued] The minutes of the pre-trial conference must be signed by The following items appear on both parties and filed with the the minutes in terms of rule registrar not more than 25 37(6)(a)-(k) days prior to hearing.  Subpoena Subpoena duces tecum requires HCR 38 and MCR 26 provides for a the witness to produce a subpoena issued by the The subpoena is served by the document at the trial (eg: tape registrar/clerk to compel a witness sheriff of the court. recordings, books of account, to come to court to testify at trial. deed, instrument etc) Evidence on commission When it is impossible to secure the personal attendance of a witness The evidence given to the commissioner may also be cross-examined at a trial because of old age, infirmity, ill health or absence overseas, by the commissioner and the parties present and it is transcribed for a party may apply to have the witness’s evidence taken on the Court. commission or interrogatories.  Evidence by way of interrogatories Evidence by way of interrogatories, specific questions are posed to the The Commissioner hands the witness and the commissioner answers to the registrar for the may only take down the Court at the trial. information relating to the specific questions.  Evidence may be admitted by way of affidavit if its impossible for a witness to attend the trial. Evidence on The evidence is limited to formal types of evidence that is least affidavit likely to be contested. The evidence of a technical or scientific nature is accepted by way of affidavit. Judicial Case Management Rule 37A was inserted in the Rules with effect from 1st July 2019. Judicial case management may apply at any time after notice of intention to defend was filed. This is determined by the practice directives of each division. Case management through judicial intervention is used for the interest of justice to alleviate congested trial rolls and to address the problems which cause delays in the finalization of cases. A case management judge shall not certify a case is trial ready unless they are fully satisfied of same. Rule 37A(5)(b)(i)-(iv)  The duties of the registrar Judicial Case The duties of the parties Management The duties of the case management judge [continued] Certification of trial readiness At trial