SUMMONS FOR DIRECTIONS

*Refer O. 25 RHC

Summons for direction (SFD) is a pre-trial procedure where an application is made for the direction of the court as to the future course if the action.

According to O. 25 r 1 (1), the purpose of SFD is:

A stocktaking exercise to secure the just, expeditious and economical disposal

of the action To considers matters which have not been dealt with in interlocutory applications To give such directions as to the future course of the action.

Time of application:
Pff must take out a SFD within 1 month after close of pleadings (O. 25 r 1)

If pff fails to take out a SFD, def may: Himself take out a SFD as in a counterclaim
Case: Lau Mun & Ors v Chua Lai Seng & Ors

o It was stated that if the pff failed to take SFD the def ought to take the summons. Apply to dismiss pffs action on the ground that he has suffered prejudice due to the delay or that a fair trial is impossible.
Case: Hong Kong Bank Malaysia Berhad v Tan Tock Sing

o The def application to strike out the pffs application for SFD on the ground that it had been filed out of time was dismissed by the senior assistant registrar.

Held: SFD must be taken within 1 month from the date summary judgment was dismissed or 1 month from the date the pleadings are closed. The pff had taken out his SFD after the expiry of 1 month period w/out seeking an extension of time allowing him to do so. The SFD taken by the pff was out of time and as there is no application requesting an extension of time to do so, the SFD is dismissed.

The ct may either deal with defs application as a SFD or dismiss pffs action [O.

25 r 1 (5)]

O. 25 r 1 (2) set out when SFD is not required:

Action for summary judgment- O. 14 or O. 81 Where a trial w/out pleadings has been applied for- O. 18 r 22 Where an order for the determination of an issue before discovery has been made-

O. 24 r 4
Where directions has been given (in application for interim injuction)- O. 29 r 7 Where an order for the taking of an account has been made- O. 43 r 1

Which have been referred for trial to the registrar For the infringement of a patent.

O. 25 r 1 (1) set out the procedure of SFD:

Pff must within 1 month after the close of pleadings take out a SFD in Form 46

returnable is not less than 14 days. No affidavit is required and hearing is in chambers.

 Form 46 has 29 directions, all of which must be typed out. If any particular

direction is not required, then the number opposite that direction is struck out.

O. 25 r 2 (1):
When the summons comes for hearing the ct must consider whether it is possible

to deal with all the matters which are required to be considered or whether it is expedient to adjourn the consideration of all or any of those matters until a later stage.

O. 25 r 2 (2): If the ct considers all matters can be dealt with then it must deal with them forthwith.

O. 25 r 4: The ct must endeavour to secure that the parties make all reasonable admissions and agreements as to the conduct of the proceedings, and shall record any refusal by the parties to do so.

O. 25 r 6: It is the duty of all parties to the action and their solicitors to give all such information and produce all such documents on any hearing of the summons as the ct may reasonably require for the purposes of enabling it properly to deal with the summons.

O. 25 r 7:
Any party to whom the SFD is addressed must so far as is practicable apply at the

hearing of the summons for any order or directions which he may desire and which can be dealt with on an interlocutory application. In order to make that interlocutory application, he must not less than 7 days before the hearing of the SFD serve on the other parties a notice in Form 47 specifying those orders and

directions in so far as they differ from the orders and directions asked for by the summons.

O.25 r 8 provides a personal injuries cases: In personal injuries cases (running down cases), SFD is not required. There is an automatic discovery but the discovery is limited to the disclosure by p of only documents relating to special damages. In all actions for personal injury certain directions takes effect automatically, as soon as the pleadings are deemed to be closed.

SETTING DOWN FOR TRIAL

*Refer O. 34 RHC

The order to set down for trial (SDFT) only applies in actions begun by writ. O. 34 r 2 (1) provides that every order made on a SFD in a writ action must fix a period within which pff must set down the action for trial and must contain an estimate of the length of the trial and the number of witnesses.

The ct normally gives a period of 3-6 months for pff to set down the action for trial. Procedure for SDFT:
O. 34 r 3 (1) provides that pff must deliver to the registrar a request in Form 63

that the action be SDT together with 2 bundles (1 for record n 1 for judge) consisting of one copy of: The writ The pleadings All orders made on the SFD.

 The bundle is usually known as the bundle of pleadings.

Then pff must, within 24 hours, notify all other parties to the action in Form 64

[O. 34 r 5 (1)].
It is the duty of all parties to the action to inform the registrar w/out delayif the

action is likely to be settled or withdrawn or the length of the trial is likely to be affected [O. 34 r5 (2)]. This will enable the registrar to remove the matter from the list and it will save the cts time.

O. 34 r 4 set out the directions relating to list of actions to be SDFT: The Chief Justice has powers to give directions Specifying the lists in which actions are to be SDFT Determining the date of the trial In applications (to a ct/judge/registrar) to fix, delete or alter any such date of the trial.

O. 34 rr 2 (2) and 7A provides a failure to SDFT: Where pff does not, within the period directed by the ct, set the action down for trial, def may: Himself set the action down for trial (in a counterclaim by D) Apply to the ct to dismiss pffs action for want of prosecution.

Then the ct may order the action to be dismissed or make such order as it thinks just.

DISMISSAL FOR WANT OF PROSECUTION

Pffs action may be dismissed for want of prosecution: i. ii. Under the Rules Under the inherent jurisdiction of the ct.

i.

Dismissal under the Rules: There are various provisions under the rules where the court may set aside or strike out proceedings for want of prosecution. Pffs action begun by writ may be dismissed for want of prosecution under:
Failure to deliver a statement of claim- O. 19 r 1 Failure to make a discovery of documents- O. 24 r 16 Failure to take out a SFD- O. 25 r 1 (4) Failure to answer interrogatories from def- O. 26 r 7 Failure to set down the action for trial- O. 34 rr 2 and 7A O. 28 r 10 stated that, pffs action begun by originating summons may also be

dismissed for want of prosecution if he fails to proceed with dispatch.

Def may apply to the ct under O. 34 r 2 to dismiss pffs action for want of

prosecution. The ct has discretion to dismiss pffs action unless pff can provide reasonable excuse.
Case: Syed Mahadzir bin Syed Abdullah v Ketua Polis Negara

o Pff did not submit the statement of claim when requested by def. the ct said that, pffs action is liable to be dismissed for want of prosecution if there is non-compliance with the rules. o Held: it has the discretion whether to strike out pffs claim and told pff to submit the statement of claim within 14 days.

ii. Dismissal under inherent jurisdiction of court: Case: Birkett v James o

Held: the inherent power of the ct to dismiss pffs action for want of prosecution should only be exercised where: Pffs default had been intentional and contumelious There had been inordinate and inexcusable delay on pff or his lawyers part which has prejudiced def.

Contumelious conduct: Means disobedience of a peremptory (final) order or an abuse of the process of the ct.
Case: Wallersteiner v Moir

o Held: pffs inordinate

and inexcusable

delay was

intentional and contumelious and an abuse of the process of the ct. it had prejudiced the course of justice. It may also debar any fresh action by pff.

Inordinate and inexcusable delay:

The inordinate and inexcusable delay by pff must have prejudiced the course of justice.

Case: Lim Heng Hoo v Tan Hock Hai

o The tenant (pff) brought an action against the landlord (def) for damages and obtained an interim injunction restraining def from developing the land close to pffs house. After the close of pleadings, pff did not apply for SFD and did not set down the matter for trial. Def applied under O. 34 r 2to have the action dismissed for want of prosecution. The HC allowed Defs application. Pff appealed. o Held: the delay was long and inexcusable and prejudiced def. Hence, pffs action was dismissed.
Case: Datuk Samy Vellu v Karpal Singh

o Def (karpal singh) applied to dismiss pffs action for want of prosecution under O. 34 r 2 on ground of delay. o Held: the delay of over 6 years in prosecuting the action was inordinate or excessive and inexcusable. The ct also said that prejudice is not limited to matters affecting proof such as the disappearance of a witness or documentary evidence. A professional (like def who is a lawyer) may be prejudiced by having an action hanging over his head indefinitely. Thus, pffs action was dismissed. Pff is not barred from taking a fresh action.
Case: Palaniappan v Ramanathan

o Held:

 dismissal of previous action for want of prosecution does not bar pff from instituting a fresh action. The second action must be of the same subject matter and pff must pay the costs of the first action. Positions where limitation period has not expired.

Case: Bailey v Bailey Held: where the limitation period has not expired but the delay or conduct was: Intentional or contumelious The limitation period is irrelevant. Pff would be barred from taking a fresh action which would be an abuse of the process of the ct. Not contumelious
-

Since pff could bring a new action, it is not proper to dismiss pffs action. Following Birkett, where the delay/conduct was not contumelious, it is conclusive reason for not dismissing pffs action.