CASE MANAGEMENT UNDER ORDER 11

Question 1

What is a Pre Trial conference?

Answer 1

• Pre-trial procedure is simply a conference between opposing counsel, conducted under the supervision and guidance of the court, for the purpose of: o Crystallizing issues; o Eliminating matters that are not actually in controversy; and
  o Stipulating as many facts as can be agreed upon
• The pre-trial procedure is spread across three separate pre-trial conferences, namely:
  o Case conference – Order 11, Rule 3, CPR; o Settlement conference – Order 11, Rule 5, CPR; and
  o Trial conference – Order 11, Rule 7, CPR

Question 2

Which suits does Pre Trial apply to?

Answer 2

• This order shall apply to all suits except small claims as defined under Order 11, Rule 3(1) or such other suits as the court may by order exempt from this requirement (Order 11, Rule 1)

Question 3

What is the purpose of Pre Trial?

Answer 3

• The aim is to deal with preliminary issues well in advance so that the trial once commenced must proceed on a day to day basis without unnecessary interruptions
• Time allocation is dealt with at this stage
• With a view to furthering expeditious disposal of cases and case management, the court shall within 30 days after the close of pleadings convene a Case Conference in which it shall deal with the issues laid out in Order 11, Rule 3(1)
• In addition to any other general power, the court may also case conference on matters arising under Order 11, Rule 3(2)

Question 4

What is the timetable for case conferencing according to the CPR orders?

Answer 4

CPR PROVISION WHAT IT STATES
Order 11, Rule 2 Once pleadings are closed under Order 2, Rule 13, the parties are supposed to complete, file and serve within 10 days a Pre-trial Questionnaire appearing in Appendix B
Order 11, Rule 3 Within 30 days after close of the pleadings the court convenes a Case Conference. Parties are expected to make sure that they have filed in the pre-trial questionnaire before the court convenes the Case Conference
Order 11, Rule 4 After the Case Conference, a Case Conference Order in terms of Appendix C is made
Order 11, Rule 5(1) Within 60 days of Case Conference in case of fast track cases and 90 days in multi-track cases, the court convenes a Settlement Conference. This is meant to explore avenues for settlement or narrowing down the issues
Order 11, Rule 5(2) 7 days before the settlement conference, parties are to prepare and exchange a Settlement Conference Brief which contains summary of the facts including issues and admissions, summary of the law to be relied upon, final list of witnesses and statements and expert reports and relevant portions of the documents to be relied upon
Order 11, Rule 7 30 days before the hearing, a Trial Conference is to be convened by the court to plan trial time, explore expeditious ways of introducing evidence, amend pleadings, deal with admissions, allow adduction of affidavit evidence, make orders for commissions, expert evidence, ADR, etc. At the end of Trial Conference, the parties sign a Trial Conference Memorandum in Appendix E and the court proceeds to make orders necessary for the conduct of the suit
Order 11, Rule 8 The Parties are bound by the memorandum signed herein unless the court decides otherwise
Order 11, Rule 7(2) This rule imposes a duty on every party and or his advocate to strictly comply with the provisions of Order 11, Rule 3(2) and to give such information as the judge may require, including but not limited to the number of the witnesses expected to be called and the nature of their evidence, to enable the court to consider and settle the length of time which will probably be required for the hearing of the suit
Any willful failure or omission of compliance with any of the provisions under Order 11, Rule 7 is deemed to
be a violation of the overriding objective as stipulated in Section 1A and 1B of the Act and the court may
order costs against the defaulting party unless for reasons to be recorded, the court orders otherwise

Question 5

What is DISCOVERY?

Answer 5

• Discovery is available in civil cases as provided for in the Civil Procedure Rules
• Order 11, Rule 3(2) states that the court may order that evidence be given on the basis of affidavit evidence or give orders for discovery or production or inspection or interrogatories which may be appropriate to the case
• A party may serve a Notice of Examination on an opposing party, indicating a time and place where the party must attend to answer questions under oath. The examination is recorded, and where requested, transcribed

Question 6

What are the two types of DISCOVERY?

Answer 6

• There are two types of discovery, which are Discovery of Facts and Discovery of Documents

Question 7

Section 134(1), Evidence Act

Answer 7

provides that an advocate shall not disclose communication made to them by their client nor
disclose documents provided by clients or legal advice given to the client; it is a professional privilege

Question 8

What is DISCOVERY OF DOCUMENTS?

Answer 8

• This is done to secure as far as possible the disclosure on oath of all material documents in the possession or power of the opposite party and to put an end to what might otherwise lead to a protracted inquiry as to the material documents actually in the possession or power of the opposite party
• The general rules relating to discovery are that it should be voluntary and automatic in that you do not need the leave of court to issue discoveries until the other party objects to it
• There are, however, limits to discovery, as privileged information is not subject to the process
• A party can apply to the court to cross-examine any person who has put in any affidavit evidence in order to obtain more Information that one feels is within the knowledge of the party to be examined
• Discovery is administered by the litigants but under the court’s direction, and hence the parties must agree on a discovery plan if they wish to obtain evidence through the discovery process

Question 9

What is discovery of FACTS?

Answer 9

• This is done by way of interrogatories (meaning to question or enquire) and can only be issued with leave of court
• The purpose of interrogatories is to know the nature of the case of the opponent and to elicit facts that support your own case – you can do it directly by obtaining admissions or by impeaching or destroying the case of the opponent
• The general rule is that the court will always allow interrogatories that will assist in the administration and dispensation of justice and also those that will shorten litigation, reduce costs and save time
• The court will also only allow interrogatories that are relevant to the matters in issue
• Interrogatories will not be allowed if they seek facts which are confidential, are injurious to public safety and security, are scandalous, irrelevant or lack bona fides, are based on questions of law, are administered unreasonably, or are vexatious and oppressive