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On 11 August 2009 the Bar Council arranged a forum to discuss with the Members of the Malaysian Bar the progress of the proposal for a single set of Civil Procedure Rules for the High Court and Subordinate Courts. Around 50 Members, including senior practitioners, attended the forum which took place at 4.00 pm at the Bar Council Auditorium.

The Vice President of the Malaysian Bar, Mr Lim Chee Wee, moderated the meeting with panelists Dato’ Cecil Abraham, Chairman of the Bar Council Task Force on Combined Rules and Daryl Goon, a member of the Task Force.

Background

The proposal for a single set of rules was first mooted by the Civil Procedure Rules Committee (CPRC) of the Bar Council in 2005 based closely on the Singapore model, with the paramount objective of making the entire court process fast and simple and to do away with technicalities and superfluous rules, which add little, if any weight to achieving justice of the case.

The Judiciary has now reverted with its own proposed set of rules, and invited the Bar to sit together with the Judges involved, namely the Chief Judges of Malaya and Sabah and Sarawak  (CJM and CJSS) and several senior Judges of the Federal Court, Court of Appeal and the High Courts of Malaya and Sabah and Sarawak, to discuss this proposal.

Major Changes

The Rules primarily follow the UK Civil Procedure Rules (UK CPR). Some of the major changes highlighted were:

•	The sections of the proposed Rules will be known as ‘Parts’;
•	There will be only one mode of originating process;
•	The Statement of Case must be verified by a Statement of Truth signed by the solicitor and client;
•	There will no longer be applications for summary judgment under Order 14, Order 14A, Order 18 rule 19, Order 18 rule 11 and Order 33 rule 2 of the Rules of the High Court 1980. All these will be incorporated under a new procedure, Summary Disposal with a unified test;
•	Extensions of time cannot be mutually agreed upon by the parties and will only be granted by the Court;
•	There will be changes to Judicial Review, eg leave of Court is no longer required;
•	Test in consolidation of proceedings will be ‘whether it is just to consolidate’;
•	Mediation will be made compulsory at the Case Management stage;
•	The validity of originating process will now be one year with a maximum of three renewals;
•	Leave may no longer be required for committal proceedings;
•	Some limited equitable jurisdiction (specific performance/rescission, etc) will be extended to the lower Courts;
•	There will be no more filing of appearances/conditional appearances. All matters that are commenced will have a return date, ie similar to the current Subordinate Courts’ practice of mention dates; and
•	There will be a wider use of witness statements in trials.

Aim of these Rules

The overriding objective of the proposed Rules is described in the proposed Part 1, namely to enable the Courts to deal with cases justly and expeditiously. The framework for how cases can be dealt with justly, includes the following, adopted from the UK CPR:

•	ensuring that the parties are on an equal footing;
•	saving expense;
•	dealing with the case in ways which are proportionate to the:
	(i)	amount of money involved;
	(ii)	importance of the case;
	(iii)	complexity of the issues; and
	(iv)	financial position of each party.
•	ensuring that cases are dealt with expeditiously and fairly; and
•	allotting to each case an appropriate share of the Court’s resources, while taking into account the need to allot resources to other cases.

Members’ Concerns

From the discussions and feedback received, it was evident that the Malaysian Bar found the proposed changes disconcerting based on the following:

•	Some members of the Judiciary are unfamiliar with and are learning to grapple with the present Rules; any fundamental change would only worsen the present problems;
•	Changes to the Court rules should be made on an incremental basis so as to avoid uncertainty or confusion. Radical changes will also require the creation of new jurisprudence;
•	There is already a wealth of jurisprudence for summary disposal of matters (ie ‘triable issues’ and ‘plain and obvious case’) and it is unnecessary to replace it with the creation of new jurisprudence which is inherently uncertain (ie ‘justice of the case’);
•	Some of the changes based on the English experience of the CPR have been heavily criticised by English practitioners themselves;
•	Litigation should remain litigant-driven instead of court-driven, with Courts’ supervision;
•	Malaysia practises an adversarial system, where it is undesirable for the Court to descend into the arena of litigants;
•	Any conferment of equitable jurisdiction on Lower Court Judges may potentially bear undesirable results because of the varying degree of their experience, competency and commercial knowledge;
•	The Courts can give a wide range of directions at the Case Management stage, including the nature of evidence and how it is to be adduced before the Court;
•	By disallowing parties to extend time by agreement, the Courts may, indirectly:
	(i)	cause a flood of applications for extension of time; which would take up valuable judicial time;
	(ii)	encourage parties to put in a ‘sham’ or ’proforma’ defence just so that they are able to meet the stipulated time-frame; and
	(iii)	face an increase in the number of applications for amendment;
•	The criteria for deciding how to deal with a case justly is too broad and open to interpretation;
•	The new Rules which will be applicable to the Subordinate Courts may make it more difficult for young practitioners to practise in the Subordinate Courts as opposed to the current Subordinate Court Rules which are fairly more straightforward; and
•	The Task Force’s suggestion for a review of costs does not seem to have been addressed.

Members have raised the possibility that in the event the Judiciary is not amenable to the Bar’s concerns and disagrees with the Bar on the need to avoid fundamental changes to the present Rules, then the proposed Rules ought to be opposed by way of an Extraordinary General Meeting (EGM).

Action Plan

All Members present were unanimous on the following:

1	The Bar is not happy with the proposed radical changes.
2	There must be proper consultation with the Bar with regard to the changes. In this regard, the President of the Bar together with the Chairman of the Task Force have met with the CJM, raised these concerns and a letter has been written to that effect, including a request for the proposed Rules to be permitted for dissemination to all Members for information and feedback. The Roadshow on the proposed Rules will be held in other regions for the benefit of the entire Bar.
3	There is a need to simplify and bring up-to-date some aspects of the current Rules, and this must be done on an incremental basis. In this regard, the Singapore approach to updating the rules is a far more sensible and practical approach.
4	The Bar Council will continue updating Members on the status of the proposed Rules on a timely basis.
5	Additionally, the Vice President informed that a separate meeting with the Sabah and Sarawak Bars and the Attorney General’s Chambers will be held soon to take a common stand on some of the problem areas.