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after pre-trial procedure
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after pre-trial procedure
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Pre-trial ProceduresIntroduction The period between the close of pleadings and the trial is crucial for
preparing evidence and ensuring a smooth trial process.
Step 1: Setting the Matter Down for Trial
Definition
Setting down a matter for trial refers to the process of obtaining a trial date from the
court and informing the opposing party.
Set Down in the High Court
• The plaintiff must draft a notice addressed to the registrar, requesting a trial date.
• The notice includes:
• Case number and parties to the action
• Names of advocates and firms of attorneys
• Estimated number of days required for the trial (average: 3 days)
• The notice is filed with the registrar and served on the opposing side.
• The registrar places the matter on the awaiting trial roll.
• The parties must wait for a trial date to be allocated, which may take between 6
months to 2 years.
Set Down in the Magistrates Courts
• The plaintiff must deliver a notice of set down to the defendant within 15 court
days after pleadings have closed.
• The notice requests a trial date and informs the defendant that the matter has
been set down for trial.
• The clerk of the civil section assigns a court day on receipt of the notice and
endorses the notice with the trial date.
• At least 20 court days must elapse from the date of delivery of the notice to the
date of the trial.
Step 2: The Discovery Process
Definition
,The discovery process involves revealing documents and other recorded evidence for
inspection by the other side to avoid surprise at the trial.
Step 3: Technical and Medical Examinations
Definition
Technical and medical examinations may be necessary to determine the state of an
object or the nature and extent of a party's injuries.
Step 4: Obtaining Further Particulars for the Trial
Step 5: Issuing Subpoenas for Witnesses and Documents
Step 6: Arranging Special Evidence
• Expert witnesses: advance warning must be given to the other side to consult
their own experts.
• Evidence in the form of photographs, plans, diagrams, or models: the other side
may admit their accuracy to save time at the trial.
• Evidence on commission: obtaining evidence from a person who cannot or will
not come to court to testify in person.
• Evidence by interrogatories: a predetermined list of questions is put to the
witness.
Step 7: Pre-trial Conference
Definition
A pre-trial conference is a final attempt to settle the matter and discuss final
arrangements for the trial.
Step 8: Final Preparation for Trial and Advice on Evidence## Discovery
Step 2: What is Discovery?
"The purpose of discovery is to allow each party knowledge of, and eventual access to,
documents in the possession of the opposing party that might be relevant to the trial."
Discovery prevents parties from being taken by surprise, eliminates disputes about
issues where the evidence is incontrovertible, and secures the fair trial of the action in
accordance with the due process of the court.
Discovery Procedures
Notice to Discover
,When must discovery take place?
Discovery is usually prompted by a notice to discover served on a party by the opposing
party. The rules require that discovery should occur on oath, and so the lists or
schedules of the documents a party discovers are annexed to a discovery affidavit.
What must be discovered?
A notice to discover contains a request for the opposing party to discover on oath:
• All documents and tape recordings (including sound tracks, films, magnetic
tapes, records, or any other material on which visual images, sound, or other
information can be recorded) which relate to any matter in question in the
action;
• Which the other side have in their possession or control when the notice is
delivered, or which they have at any time in the past had in their possession or
control.
The Discovery Affidavit
High Court Form 11 and Magistrates Courts Form 13 prescribe what the discovery
affidavit referred to in rule 35(2) and 23(2), respectively, must look like.
The First Schedule lists those documents and tape recordings (extended meaning)
which are in the possession of the deposing party at the time the discovery affidavit is
deposed to.
Description Date Type
2/1/03 Letter of plaintiff to defendant copy document
7/1/03 Letter of defendant to plaintiff original document
... ... ...
The Second Schedule contains those documents and tape recordings (extended
meaning) which the deposing party objects to being inspected by the opposing party.
Reason for
Objection Document Description
Privileged A document implicating a party in a criminal offence
, Reason for
Objection Document Description
Privileged A document written by one spouse to another spouse
A written offer made without prejudice with the intention of settling a
Privileged matter
Privileged A document written by an attorney or advocate to his client, or vice versa
Note: The following documents are privileged and must be excluded from the schedules
altogether:
• Statements taken from witnesses for the purposes of the proceedings
• Communications between attorney and client, and attorney and advocate.
Discovery
Second Schedule
• Lists documents and tape recordings (extended meaning) that were in the
possession of the deposing party at one time, but are no longer in their
possession.
• Includes original copies of all letters dispatched by the deposing party.
• Less commonplace documents that are no longer in the deposing party's
possession, such as agreements, tend to be listed in the Second Schedule.
Exemptions from Discovery
• The following documents and tape recordings do not need to, and must not, be
listed in the schedules attached to a discovery affidavit:
• Statements of witnesses taken for the purposes of the proceedings.
• Communications between attorney and client and between attorney and
advocate.
• Pleadings, affidavits, and notices in the action.
Remedies for Failure to Discover
Notice to Inspect Undisclosed Documents
• Rule 35(3) of the High Court Rules and rule 23(3) of the Magistrates Courts Rules
set out the procedural steps that may be taken if the opposing party has not
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