Superior Court Rules

ORDER 63C

CHANCERY AND NON-JURY ACTIONS AND OTHER DESIGNATED PROCEEDINGS: PRE-TRIAL PROCEDURES

I. Preliminary

Interpretation

1. In this Order, unless the context or subject matter otherwise requires—

“case management order” means an order made under rule 6(1) that proceedings be subject to case management in accordance with rules 6 to 8;

“List Judge” means the Judge for the time being assigned by the President of the High Court, in accordance with rule 3(1) to be the Judge in charge of the List for a category of proceedings;

“Registrar”, unless the context otherwise requires, means the Registrar of the High Court for the time being assigned by the President of the High Court in accordance with rule 3(2), to be the appropriate Registrar in respect a category of proceedings;

“relevant proceedings”, in relation to a List Judge or a Registrar, means proceedings within a category of proceedings the List of which that Judge has charge in accordance with rule 3(1) or, as the case may be, in respect of which that Registrar is for the time being assigned in accordance with rule 3(2).

Application of this Order

2. (1) The provisions of this Order shall apply to:

(a) any proceedings the trial of which would, on service of a notice of trial (if required), be listed for trial in the Chancery List or the Non-Jury List of the Court;

(b) any other proceedings (not including proceedings admitted to the Commercial List under Order 63A, any proceedings required to be heard in the Competition List under Order 63B, personal injuries actions and jury actions) which the President of the High Court has for the time being designated in accordance with sub-rule (2) as proceedings to which this Order shall apply,

and a reference in this Order to “proceedings” shall be construed accordingly.

(2) Subject to sub-rule (3), the President of the High Court may from time to time designate any category of proceedings identified in such designation, or any proceedings having or involving any characteristics identified in such designation, as proceedings to which this Order applies.

(3) Save where otherwise expressly provided by this Order, in the event that any conflict shall arise between the provision of any rule of this Order and any other provision of these Rules, the provision of the rule of this Order shall prevail.

List Judges and Registrars

3. (1) The President of the High Court may, for the purposes of this Order, from time to time assign a Judge to be the Judge in charge of the List for any category of proceedings mentioned in, or designated in accordance with, rule 2, and any such assignment shall be published in the Legal Diary, provided that where the appropriate List Judge assigned in accordance with this rule is for any reason unavailable, another Judge may act in the place of the assigned List Judge.

(2) The President of the High Court may, for the purposes of this Order, from time to time assign any one or more Registrars of the High Court to be the Registrar for any proceedings, or any category of proceedings mentioned in, or designated in accordance with, rule 2 and specified in such assignment, and any such assignment shall be published in the Legal Diary, provided that where the appropriate Registrar assigned in accordance with this rule is for any reason unavailable, another Registrar of the High Court may act in the place of the first-mentioned Registrar.

(3) Each Registrar shall perform the functions and exercise the powers conferred on him by this Order in accordance with any general guidance or instructions given to him by the appropriate List Judge concerning the proceedings, or category of proceedings, in respect of which said Registrar has been assigned in accordance with sub-rule (2).

II. Pre-trial preparation

General

4. A Judge may, at any time and from time to time, of that Judge’s own motion and having heard the parties, or on the application of a party by motion on notice to the other party or parties, give such directions and make such orders, including the fixing of time limits, for the conduct of proceedings, as appears convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings.

5. (1) Without prejudice to the generality of rule 4, a Judge may—

(a) of that Judge’s own motion and after hearing the parties, or

(b) on the application of a party by motion on notice to the other party or parties,

make any of the following orders or give any of the following directions to facilitate the determination of the proceedings in the manner mentioned in that rule:

(i) as to whether the proceedings shall continue—

(I) with pleadings and hearing on oral evidence,

(II) without formal pleadings and by means of a statement of issues of law or fact, or of both law and fact,

(III) without formal pleadings and to be heard on affidavit with oral evidence, or

(IV) without formal pleadings and to be heard on affidavit without oral evidence;

(ii) fixing any issues of fact or law to be determined in the proceedings;

(iii) for the consolidation of the proceedings with another cause or matter pending in the High Court;

(iv) for the defining of issues by the parties, or any of them, including the exchange between the parties of memoranda for the purpose of clarifying issues;

(v) allowing any party to alter or amend the party’s indorsement or pleadings, or allowing amendment of a statement of issues;

(vi) requiring delivery of interrogatories, or discovery or inspection of documents;

(vii) requiring the making of inquiries or taking of accounts;

(viii) requiring the filing of lists of documents, either generally or with respect to specific matters;

(ix) an order in accordance with Order 36, rule 9(2);

(x) an order to the effect provided for in Order 39, rule 61(1) and (2);

(xi) providing for the exchange of documents or information between the parties, or for the transmission by the parties to the Registrar of documents or information electronically, including the filing or delivery of an affidavit of discovery and copies of the documents (not including documents over which privilege is claimed) in any schedule thereto, on such terms and subject to such conditions and exceptions as a Judge may direct;

(xii) for the examination upon oath before a Judge, Registrar or other officer of the Court, or any other person, and at any place, of any witness, in accordance with Part II of Order 39;

(xiii) on the application of any of the parties or of the Judge’s own motion, an order under Order 56, rule 8 or an order under Order 56A, rule 2;

(xiv) fix a timetable for the completion of pleadings, interlocutory applications and other pre-trial steps, and may for that purpose adopt any proposed timetable agreed by the parties or submitted by a party (which may be in the Form 1 in Appendix JJ) if satisfied that it is reasonable.

(2) Without prejudice to any enactment or rule of law by virtue of which documents or evidence are privileged from disclosure, to assist him in deciding whether or not to make any order or give any direction in accordance with sub-rule (1), the Judge may direct the parties, or any of them in relevant proceedings, to provide information in respect of the proceedings, including:

(a) a list of the persons expected to give evidence;

(b) particulars of any matter of a technical or scientific nature which may be at issue or may be the subject of evidence;

(c) a reasoned estimate of the time likely to be spent in—

(i) preparation of the proceedings for trial;

(ii) the trial of the proceedings, and

(iii) the examination or cross-examination (as the case may be) of each or any witness intended to be called by that party or by any other party;

(d) particulars of any arbitration arrangements or ADR process (within the meaning of Order 56A, rule 1) which may be available to the parties.

Case management

6. (1) A List Judge may—

(a) of that Judge’s own motion and after hearing the parties in relevant proceedings, or

(b) on the application of a party by motion on notice to the other party or parties at any time prior to the trial of the proceedings,

where satisfied that the proceedings should, by virtue of their complexity, the number of issues or parties, the volume of evidence, or for other special reason, be subject to case management, make a case management order.

(2) Where a case management order has been made, the List Judge shall fix a date for a case management conference, and may give any further directions for the completion prior to such conference of such, if any, steps in the proceedings (including the preparation of a case booklet in accordance with sub-rules (9) and (10)) as the List Judge considers appropriate.

(3) The case management conference shall be chaired and regulated by the List Judge or such Judge as the List Judge with the approval of the President of the High Court may nominate.

(4) Where the case management conference is adjourned, it shall be adjourned to a specific date.

(5) The case management conference shall be attended by the solicitor or counsel appearing for each of the parties or, where a party, not being a body corporate, does not have legal representation, by the party himself. Where the Judge chairing the case management conference considers it necessary or desirable, the Judge may direct that party, or, where the party is a body corporate, the proper officer of a party, attend the case management conference, notwithstanding the fact that the solicitor or counsel for that party will also attend the case management conference.

(6) Each solicitor or counsel attending the case management conference shall ensure that he is sufficiently familiar with the proceedings, and has authority from the party that he represents to deal with any matters that are likely to be dealt with at the conference.

(7) Where a party is represented by counsel, only the attendance of a single counsel at the case management conference will be allowed in the taxation or fixing of costs.

(8) The purpose of the case management conference shall be to ensure that the proceedings are prepared for trial in a manner which is just, expeditious and likely to minimise the costs of the proceedings, and in particular that, as soon as may be in advance of the trial:

(a) the issues, whether as to fact or law, are defined as clearly, as precisely and as concisely, as possible;

(b) all pleadings, affidavits and statements of issues are served;

(c) any applications by letter for particulars and replies thereto, any admissions, or requests for admissions, notices to admit documents or facts and replies thereto, and any affidavits made in pursuance of any notices to admit facts or documents, are served or delivered, as the case may be;

(d) all applications for relief of an interlocutory nature intended to be made by any of the parties are made;

(e) all written statements of witnesses and expert reports within the meaning of rule 17 have been or are served;

(f) any directions given or orders made in accordance with rule 4, or in the course of a case management conference have been complied with.

(9) The plaintiff, applicant or other party prosecuting the proceedings shall, in consultation with the other party or parties, prepare a case booklet to be lodged with the Registrar and served on the other party or parties not later than four clear days prior to the first date fixed for the case management conference.

(10) The case booklet shall contain—

(a) a case summary, comprising

(i) an agreed outline of the case and a chronology of relevant events;

(ii) a list of the issues;

(iii) an agreed statement of those issues that are in dispute, and

(b) pre-trial documentation in chronological sequence, including (where appropriate) copies of pleadings exchanged, affidavits filed (other than affidavits of service, or affidavits in support of or replying to any application for admission to a particular list or for case management), statements of issues, orders made or directions given, and, if the Judge so directs, any correspondence between the parties, not being expressed to be “without prejudice”, relating to the preparation of the case for trial.

(11) The case booklet shall be produced and maintained by the party responsible for preparing the same in such form, including electronic form as the appropriate List Judge may direct and, where that Judge so directs, shall be lodged or served by electronic means, and on such conditions and subject to such exceptions as that Judge may prescribe.

(12) The party responsible for preparing the case booklet shall, in consultation with the other party or parties, revise or add to its contents from time to time as necessary.

7. At the case management conference the Judge chairing the case management conference may:

(a) fix a timetable for the completion of preparation of the case for trial, and may for that purpose adopt any proposed timetable agreed by the parties if satisfied that it is timely, expeditious and reasonable;

(b) make any orders or give any directions which may be made or given in accordance with Order 36, rule 9(2), or rule 5 of this Order;

(c) if that Judge considers that there may be undue delay in, or that there may be cause for concern with, the conduct of the proceedings, and without prejudice to any powers conferred on a Judge by Order 33, rule 11, require the party appearing to be responsible therefor, or the proper officer of or solicitor or counsel instructed in the proceedings by that party, to attend before him to explain the course of the proceedings, and may thereupon make or give such ruling or direction as the Judge may consider appropriate for the purposes of ensuring that appropriate attention is given to the significant issues in the proceedings or for expediting the proceedings or the conduct thereof;

(d) without prejudice to any powers conferred on a Judge by Order 99, rule 37(13), disallow the costs of any indorsement of claim, pleading, statement of issues or other document in the proceedings which is insufficiently precise or, without prejudice to the generality of the foregoing, contains unnecessary matter, or is of unnecessary length, and award against that party the costs thereby occasioned to any other party;

(e) without prejudice to any powers conferred on a Judge by Order 33, rule 11 and Order 99, rule 37(13), disallow the costs of any party occasioned by a delay or default by that party in complying with a time limit for doing any act or taking any proceeding, and award against that party the costs thereby occasioned to any other party.

8. Case management of proceedings shall be concluded, on the occurrence of any of the following events:

(a) the issue of a certificate of readiness for trial;

(b) the making of a final order in, or the discontinuance or conclusion otherwise (including by settlement) of the proceedings before the issue of a certificate of readiness for trial;

(c) the making of an order by the List Judge determining that it is no longer consistent with the purposes referred to in rule 4 that the proceedings should remain subject to case management.

Pre-trial conferences

9. (1) Where no case management order has been made in proceedings, the proceedings shall, on being set down for trial, be listed by the Registrar before the List Judge, or such Judge as the List Judge with the approval of the President of the High Court may nominate, for a pre-trial conference.

(2) Where a case management order has been made in proceedings, the Judge chairing the case management conference shall fix a date for a pre-trial conference once all orders made or directions given in the course of the case management conference have been complied with.

(3) The List Judge may dispense with the requirement of a pre-trial conference in proceedings where satisfied that, because the significant issues in the proceedings are sufficiently clear and the proceedings are otherwise ready for trial, the proceedings do not require a pre-trial conference.

10. Each party shall, in consultation with their respective counsel, complete and lodge with the Registrar not later than four clear days before the date fixed for the pre-trial conference a pre-trial questionnaire, which shall be in the Form No 3 in Appendix X, with such modifications as are necessary.

11. (1) The pre-trial conference shall be chaired and regulated by the List Judge, or such Judge as the List Judge with the approval of the President of the High Court may nominate.

(2) Where the pre-trial conference is adjourned, it shall be adjourned to a specific date.

(3)(a) Where a party intends to be represented at the trial by a solicitor then the leading solicitor whom it is intended shall so represent the party shall attend the pre-trial conference.

(b) Where a party intends to be represented at the trial by solicitor and counsel then the leading counsel whom it is intended shall represent the party shall attend the pre-trial conference.

12. At the pre-trial conference, the Judge chairing the same—

(a) shall establish what steps remain to be taken to prepare the case for trial, the likely length of the trial and the arrangements, if any, for witnesses, information and communications technology (including video conferencing) and any other arrangements which require to be made for the trial,

(b) where the parties intend to rely on expert evidence, may make an order under Order 39, rule 60, and

(c) may make any orders and give any directions in accordance with Order 36, rule 9(2) or with this Order in respect of arrangements for the trial as that Judge considers necessary.

13. (1) Save where dispensed with by the Judge chairing the pre-trial conference, the plaintiff, applicant or other party prosecuting the proceedings shall, in consultation with the other party or parties, prepare and lodge with the Registrar, not later than four clear days before the pre-trial conference, the following materials (in this Order referred to as the “trial materials”):

(a) a trial booklet, indexed and in chronological sequence, and containing

(i) a list of the persons alleged by the parties, or any of them, to have been principally involved in the matters or events the subject of the proceedings;

(ii) the case summary contained in the case booklet, including a chronology of relevant events;

(iii) copies of any pleadings, affidavits (other than affidavits of service, or affidavits in support of or replying to any application for admission to a particular list or for case management), statements of issues, documents or extracts therefrom in respect of which agreement has been reached between the parties under sub-rule (3), correspondence and any other documents intended to be relied upon at the trial;

(iv) a booklet containing the expert reports on each side, and any reports of any single joint expert;

(v) where appropriate, a glossary of technical terms which are likely to be used in the course of the trial;

(vi) any other documents or things directed by the Judge chairing the pre-trial conference to be so lodged;

(b) a book of exhibits, appropriately numbered;

(c) concise written submissions of the parties on points or issues of law and

(d) a book of authorities, referred to in the written submissions referred to at (c).

(2) Where necessary, the party responsible for lodging the trial materials with the Registrar shall, in consultation with the other parties, update any of the trial materials following their lodgment with the Registrar.

(3) The Judge chairing the pre-trial conference may request the parties to consult with each other with a view to agreeing, where possible, upon a list of the documents and, as appropriate, any extracts from documents intended to be relied upon at the trial, in substitution for the trial materials referred to at paragraphs (a), (b) and (c) of sub-rule (1), or any of them.

(4) The trial materials shall be produced by the party responsible for preparing the same in such form, including electronic form, as the List Judge may direct and, where the List Judge so directs, shall be lodged or served by electronic means, and on such conditions and subject to such exceptions as the List Judge may prescribe.

Certificate of readiness for trial

14. (1) A certificate of readiness for trial (in the Form No 2 in Appendix JJ) shall be issued:

(a) by the Judge chairing, or who has chaired, the pre-trial conference, or

(b) by the List Judge, where that Judge has dispensed with the requirement of a pre-trial conference

where the Judge concerned considers that the proceedings are ready to proceed to trial.

(2) Where the Judge chairing a case management or pre-trial conference considers that the trial of the proceedings would be assisted by the appointment of an assessor, the Judge may make a recommendation to that effect, which shall be appended to the certificate of readiness for trial.

(3) Where the Judge chairing a case management or pre-trial conference considers that, in the interests of justice, another Judge should be the trial judge for the proceedings, such determination shall be appended to the certificate of readiness for trial.

(4) Upon the issue of a certificate of readiness for trial, the List Judge may, following consultation, if necessary, with the President of the High Court and with any other relevant Judge, fix a date or dates for the trial of the proceedings or of issues in the proceedings, whereupon the Registrar shall notify the parties in writing of the date or dates so fixed.

(5) The Registrar shall deliver to the trial Judge copies of the trial materials, and a copy of the certificate of readiness for trial.

(6) A plaintiff, applicant or other party prosecuting the proceedings who intends to call an expert witness must give notice of that intention, or confirm that intention, on setting down a case for trial or (where the proceedings are subject to case management) on the fixing of a trial date for the proceedings. Where a defendant, or other party, intends to call an expert witness, notice of that intention shall be given or confirmed within 30 days of the proceedings being set down for trial or (where the proceedings are subject to case management) a date being fixed for the trial of the proceedings. Such notice may be given by letter between the parties. In any case in which orders have been made or directions given concerning expert evidence in accordance with rule 5(1)(ix) or rule 12(b), it shall be sufficient that each party produce a certificate in writing at the pre-trial conference that all such orders or directions have been complied with or, if a pre-trial conference has been dispensed with, such certificate shall be delivered to the Registrar within 30 days of the proceedings being set down for trial or (where the proceedings are subject to case management) a date being fixed for the trial of the proceedings.

15. (1) The plaintiff, applicant or other party prosecuting the proceedings shall prepare and lodge any material updating the trial materials referred to in rule 13 with the Registrar, for delivery to the trial Judge, not less than fourteen days prior to the date fixed for the trial (or earlier if so directed by the List Judge).

(2) Where the requirement of a pre-trial conference has been dispensed with, but a certificate of readiness has issued, the plaintiff, applicant or other party prosecuting the proceedings shall consult with the other parties for the purpose of attempting to agree the trial materials referred to in rule 13, and subject to any agreement made in that regard, shall thereafter proceed in accordance with rule 13, and shall lodge the trial materials with the Registrar, for delivery to the trial Judge, not less than fourteen days prior to the date fixed for the trial.

(3) The trial Judge may, at any time following delivery to him of the trial materials referred to in rule 13, cause the matter to be listed before him for mention, for the purpose of making a direction in accordance with rule 16, or for the purpose of making any other direction or resolving or clarifying any other matter which, in that Judge’s opinion, will facilitate the efficient conduct of the trial, and may, for that purpose, request the Registrar to communicate to the parties any matter which may require resolution or clarification.

16. (1) The trial Judge may require the parties to prepare and deliver to the Registrar or produce in Court an agreed list of concise questions that are to be decided by the Court in order to determine the proceedings, or the decision by the Court on which will substantially facilitate the determination of the proceedings.

(2) Where the list of questions mentioned in sub-rule (1) is not agreed, each party shall furnish such a list.

Evidence

17. (1) Unless the List Judge otherwise orders, a party intending to rely upon the oral evidence of a witness as to fact or of an expert at trial shall, not later than 30 days prior to the date of such trial (if not previously done or required to be done), serve upon the other party or parties and file:

(a) in the case of a witness as to fact, a written statement, and

(b) in the case of an expert, a written report (in this rule referred to as an “expert report”),

consisting of a summary of the evidence to be given by that witness containing the essential elements of that evidence signed and dated by the witness or expert, as the case may be.

(2) A supplemental written statement or, as the case may be, expert report, containing a summary of evidence to be given by a witness or expert additional to the evidence summarised in his written statement or expert report, and signed and dated by him, may be served by the party intending to rely upon the oral evidence of the witness or expert concerned within the time specified in the preceding sub-rule, and sub-rules (3) and (4) of this rule shall apply mutatis mutandis to such supplemental written statement or supplemental expert report.

(3) A Judge may in exceptional circumstances and after hearing all of the parties, direct that the written statement or expert report referred to in sub-rule (1), or any part of that written statement or expert report, shall be treated as evidence in chief of the witness concerned, but only after it has been verified on oath by such witness.

(4) Where a direction is given under sub-rule (3), the witness concerned may, in giving his evidence in chief, be referred by counsel or, as the case may be, the solicitor, for the party adducing such evidence to the contents or, as the case may be, the part directed in accordance with sub-rule (3), of the written statement or expert report concerned.

(5) If during the course of the trial, on application by any party, it becomes apparent that any witness other than those notified is necessary, then with the leave of the trial Judge such witness may be called to give oral evidence, subject to such direction as to prior service of a written statement or, as the case may be, expert report, of a kind referred to in sub-rule (1) as the trial Judge shall make.

Costs

18. The costs of the hearing of any application for directions or orders in accordance with rule 4 shall, unless the Judge before whom that hearing takes place otherwise orders, be deemed to be costs in the cause.

19. The appropriate List Judge may prescribe requirements as to the form and content of bills of costs to be prepared in respect of relevant proceedings which have been made the subject of a case management order. Where the List Judge has not done so, such bills of costs shall be prepared in the manner prescribed by Order 99, rule 29.

20. The Court may limit the amount of a party’s expert fees and expenses that may be recovered from any other party.

21. Any costs occasioned by failure to comply with the provisions of any rule in this Order relating to the content of a form or by failure to comply with any directions contained in a form as to its completion shall be borne by or disallowed to the party using the same, unless the List Judge or, as the case may be, the trial Judge, shall otherwise direct.

III. Electronic service, exchange and lodgement of documents

22. (1) Documents required under or in accordance with this Order to be served, exchanged or inspected in proceedings (including any affidavit of discovery and copies of the documents (not including documents over which privilege is claimed) in any schedule thereto) may, where the President of the High Court by practice direction made in accordance with Order 63A, rule 31 (which practice direction may extend to proceedings to which this Order applies) permits, and on such terms and conditions and subject to such exceptions as the President of the High Court may by such practice direction specify, be served or exchanged, as the case may be, electronically.

(2) Documents required under this Order to be filed in proceedings may, where the President of the High Court by a practice direction referred to in sub-rule (1) permits, and on such terms and conditions and subject to such exceptions as the President of the High Court may by such practice direction specify, be filed electronically with the appropriate Registrar and stored by that Registrar in like manner.

[SI 255/16]

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