Order 34

 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.
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
 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.
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.
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.
ORDER 24
 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.
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.
ORDER 26
 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
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.