ISSUES RELATING TO NON-ATTENDANCE AT TRIAL – ORDER 12

Question 1

What happens when only the plaintiff attends?

Answer 1

(a) If notice of hearing was duly served, it may proceed ex parte
o This applies where the defendant (or the plaintiff, in case of a counterclaim), fails to show
o This is different to judgment In default of appearance → the court in this case will proceed to hear the advocate, bring out the witnesses, examine in chief the witness, give closing statements, etc. and only after all this will the matter proceed to judgement in default of appearance, which would be an ex partejudgement if the other party still does not show up
(a) If that notice of hearing was not duly served, it shall direct a second notice to be served, or
(b) If notice was not served within sufficient time or for sufficient reason the defendant was unable to attend, it may postpone hearing (Order 12, Rule 2, CPR)

Question 2

(Order 12, Rule 1, CPR)

Answer 2

When neither party attends court, the court may dismiss the suit

Question 3

What happens if only the defendant attends?

Answer 3

• If on the day of the hearing, only the defendant attends and they deny the claim, the suit shall be dismissed unless good cause is shown (which cause should be recorded in court)
• If the defendant admits any part of the claim the court shall give judgment against the defendant upon such admissions and shall dismiss the suit so far as relates to the rest of the claim except for good cause to be recorded in court
• If the defendant counterclaims they may prove their counterclaim so far as the burden of proof lies on them (Order 12, Rule 3, CPR)

Question 4

What are the circumstances where a suit can be dismissed before trial?

Answer 4

a. Dismissal for want of prosecution under Order 17 of the Civil Procedure Rules in a suit where no step has been taken for the period of one year;
b. Dismissal for failure to give security for costs under Order 26;
c. Failure to collect Summons or having failed to serve the Summons, the suit then abates under Order 5;
d. Withdrawal/discontinuance and adjustment of the suit by the plaintiff;
e. Out-of-court settlements; or
f. Other preliminary objections

Question 5

What are the three CPR rules when it comes to court attendance?

Answer 5

ORDER 12 CPR WHAT IT STATES
Rule 4 If only some of the plaintiff’s attend, the court may either proceed with the suit or make such orders as it may deem just

Rule 5 If only some of the defendants attend, the court may proceed with the suit and may give such judgment as is just in respect of the defendants who have not attended. Subject to Rule 2 and any law of limitation of actions, where a suit is dismissed under this Order, the plaintiff may bring a fresh suit (no res judicata or a suit that was dismissed)

Rule 6 However, when a suit is dismissed under Rule 3, no fresh suit may be brought in respect of the same cause of action

Question 6

(Order 12, Rule 7, CPR)

Answer 6

• Where under this Order judgment has been entered or suit has been dismissed, the court may on application set aside or vary the judgment or order upon such terms as may be just