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Contributed by Nik Waheeda Nik Kamarulzaman, Officer, Bar Council
 
In an effort to create awareness and to continuously update its members on current legal developments, the Bar Council (BC), in collaboration with the Selangor Bar Committee, organised a seminar on the Proposed Combined Rules of Court (Proposed Rules) on Friday, 29 Jan 2010, at the Selangor Bar Auditorium.  This is the first segment of a proposed roadshow by the BC’s Task Force on Combined Rules (Task Force) in its bid to bring the proposal for a single set of civil procedure rules for the High Court and Subordinate Courts to the attention of the Members of the Bar.

This seminar is a follow-up event from an earlier dialogue session, held in August 2009 at the BC Auditorium, on the same issue.  Since then, the Task Force has been regularly updating Members of the Bar on the progress of the Proposed Rules via e-circulars.  From the seminar, BC hoped to obtain feedback from Members to assist the Task Force in reviewing the Proposed Rules.
 
About 40 members of the Selangor Bar, consisting of both practitioners and pupils in chambers, attended the seminar, which was led by Lim Chee Wee, the Vice-President of the Malaysian Bar and Nantha Balan, a senior practitioner and Task Force member.
 
Opening the seminar, Lim Chee Wee gave a brief introduction on how the Proposed Rules came about wherein BC initiated this project in 2005 and put together the first draft of the Proposed Rules following a similar move in Singapore.  He stated that the seminar’s purpose was only to highlight certain parts of the Proposed Rules and the drastic procedural changes that are in the pipeline.
 
Nantha Balan then proceeded to explain the genesis and rationale of the Proposed Rules, while emphasising that they are still very much a work-in-progress.  BC had sent various drafts of the Proposed Rules to the Judiciary Rules Committee for its feedback.  In the last two years, there have been discussions and meetings between the parties, namely the Judges Rules Committee, Attorney General's Chambers, the Task Force, Sabah Law Association and the Advocates’ Association of Sarawak on the content and substance of the Proposed Rules.

Nantha Balan cited and discussed some key examples of the proposed changes: 

(1) There will only be one mode of originating process known as “Claim”, and one application for all interlocutories, known as “Application”, but in respect of specific applications, e.g. for judicial review, the Rules will provide for a separate form of application.

(2) Some limited equitable jurisdiction (specific performance/rescission, etc.) to be extended to the lower Courts.

(3) All matters that are commenced will have a return date, i.e. similar to the current subordinate court practice of mention dates.
 
(4)  Statement of truth: The Rules require certain documents to be verified by a statement of truth by the party, his or her litigation friend or the legal representative of the party/ litigation friend.
 
(5) Mediation to be part of case management directive: mediation to be court-directed but voluntary, and will take place during case management, before a Judge/Registrar properly trained in mediation. Streamlining the Case Management process to enhance its effectiveness. In this regard, the process adopted in Hong Kong is being evaluated as to its effectiveness and suitability for the Malaysian context.
 
(6) Judicial Review (currently under review): leave of Court no longer required. 
 
Throughout the seminar, both speakers engaged the participants in brief discussions, and the participants eagerly shared their thoughts, views and concerns on the issues raised.  Generally, Members were not averse to the Subordinate Court Rules and the High Court Rules being combined, provided there are only minimal or incremental changes as opposed to radical changes.  The general view expressed was that the rules of court are not the cause of delay in the disposal of cases; rather, the problem lies more with the attitude of lawyers and of the Judiciary in handling and managing the cases before them.

Even with the proposed new rules, there could still be delays if the level of competence of the Registrars and Judges is not enhanced.  Delays would still occur if the court management system is not radically changed. Since it is acknowledged that cases are already moving quite rapidly (with minimal postponements and stringent case management supervision), which is due to the steps already put in place by the Chief Justice, it was felt that there is no necessity for the Rules to undergo radical changes.
 
All in all, the seminar was a success. We hope to elicit the same response in subsequent seminars to be held at other State Bars so as to fulfil the objective of informing Members of the Bar regarding the Proposed Combined Rules of Court.