Making the Case for a Pre-Action Protocol in Malaysian Civil Litigation

On 03.02.2020, the Chief Judge of Malaya had released a new Practice Direction No. 1/2020 (“PD No. 1/2020”) detailing, amongst other things, the handling of case managements in civil cases before trial. On 23.12.2020, PD No. 1/2020 was expanded via Practice Direction No.1/2021 to expand its application to number of new cases.

Purpose of the Practice Directions

The purpose of these Practice Directions is notable as it was designed to streamline the handling of cases that are being filed in the civil courts whilst also ensuring that cases are disposed of in a timely manner. Amongst the guidelines released include, amongst other things:

• The first round of e-Reviews are to be held 30 days after the filing of a writ;
• Failure to successfully serve a writ by the date of this first e-Review may lead to further directions from the Registrar to file a Substituted Service application and for a further e-Review to be fixed 14 days after the date of the first e-Review to ensure compliance;
• Failure to file an application for substituted service within the stipulated time period and/or failure to serve the writ upon the grant of an order for substituted service may lead to a cost order and/or render the action susceptible to a striking out;
• Any interlocutory applications are to be filed within 14 days from the date of the first e-Review; and 
• Pre-trial directions to be given following the second e-Review and is to be complied with within 30 days from the date of the second e-Review. Parties are free to make applications for interrogatories or discovery of documents at this stage;
• For the third e-Review, a case management will be fixed to be heard before the judge and upon completion of the above pre-trial directions within those 30 days, dates for trial are to be fixed not more than 6 months from the date of a filing of the writ.

From the above, the common themes that can be extracted is that the judiciary is attempting to push for civil cases to be completed in a faster manner and to reduce the backlog of cases. Whilst this is commendable, it is with respect a tough ask for the conduct of cases to meet the strict deadlines imposed by these guidelines, especially in relation to the filing of interlocutories when a case is still in a state of factual flux.

In this case, it can be said that in order to truly maximise the efficacy of these guidelines, a case should be made for a pre-action protocol to be released and enforced together with PD No.1/2020 to ensure a greater management of civil cases that appear before the courts.

A pre-action protocol allows for guidance in the conduct of litigation before the filing of an action where a failure to comply can lead to greater cost penalties in your case or even a stay of proceedings until the pre-action protocol is complied with. A pre-action protocol was introduced in England and Wales as part of sweeping reforms to their civil procedure rules culminating in the introduction of 16 pre-action protocols for specific claims (as of 12.02.2020) which include matters relating to:

• Resolution of Package Travel Claims;
• Construction and Engineering Disputes;
• Debt Claims;
• Media and Communications Claims;
• Personal Injury Claims;
• Resolution of Clinical Disputes;
• Professional Negligence;
• Judicial Review;
• Disease and Illness Claims;
• Housing Conditions Claims (England);
• Housing Disrepair Cases (Wales);
• Possession claims based on Mortgage or Home Purchase Plan arreras in respect of Residential Property;
• Possession Claims by Social Landlords;
• Low Value Personal Injury Claims in Road Traffic Accidents;
• Damages in relation to the Physical State of Commercial Property at Termination of a Tenancy; and
• Low Value Personal Injury (Employers’ Liability and Public Liability) Claims.

Where a claim does not have a specific pre-action protocol assigned to it, parties conducting litigation in England and Wales are required to comply with the Practice Direction-Pre-Action Conduct and Protocols as a general guide.

Objective of the Protocols

The objective of these protocols is to ensure, amongst other things, that sufficient information is exchanged beforehand in order to allow parties to understand each other’s positions, to try to settle issues without proceedings, to consider alternative dispute resolution methods and to reduce the costs of resolving the dispute.

Further to this, parties are expected to take this opportunity to identify, narrow and resolve the legal, factual or expert issues that may arise from a potential claim. This will be done through the exchange of correspondence and information with concise details of the claim and to include the basis of a claim, with a summary of facts and the calculation of damages, where applicable.

The responding party will then reply within 14 days for simple cases or 3 months in complex cases to provide explanations as to facts and parts of the claim that are in dispute and to further furnish information on whether a counterclaim will be filed as well as details thereof.

Parties are also expected to disclose key documents relevant to the issues in dispute. It is through the exchange of information that parties should review their respective positions to consider what evidence is lacking and to further seek a narrowing down of the issues in dispute before proceeding with a claim.

From the above, it is clear that the English judiciary’s emphasis on the pre-action protocol is to ensure that cases are settled out of court and/or only truly deserving cases are litigated in the courts to ensure the best use of valuable judicial resources. It is here that it is submitted that the Malaysian Judiciary should consider the enactment of a similar protocol to one that is in force in England and Wales (modified to suit the Malaysian context) so that parties may achieve the same objectives in the course of their litigation.

This will allow parties to know the facts of their case well enough to adhere to the guidelines of PD No.1/2020 such as the need to file interlocutory applications within 14 days post the second e-Review, amongst other things. It is commonplace to find that fact investigations are still taking place even after the filing of a writ and this does lead to delays in the conduct and subsequent disposal of a case.

Conclusion

It is notable that the Malaysian Bar has attempted to explore the enactment of a pre-action protocol for personal injury cases in early 2007 but this did not materialize (instead a personal injury compendium was drafted to create guidelines as to the estimation of quantum of damages for personal injuries).

However, notwithstanding this, it is imperative that we should not abandon any attempts to create a pre-action protocol that is suitable for Malaysian court practice. The machinery of justice must allow for ever-constant improvements to be made in order to ensure that the interest of justice is truly upheld.