Moving Forward: Amendments to the Rules of Court 2012 in tandem with the Covid-19 pandemic

The Covid-19 pandemic has impacted many sectors of the economy including the legal profession. As early as March 2020, the government of Malaysia has imposed a Movement Control Order (MCO) and some variation of the same to fight back against the spread of Covid-19. However, this has inevitably led to several delays and postponement of hearings or trials impacting the administration of justice in Malaysia.

To circumvent these issues whilst preventing backlog of cases, we have seen the Malaysian Judiciary putting in place several measures to adopt the use of technology in dealing with cases. This can be seen by the recent amendments to the Courts of Judicature Act 1964, Subordinate Courts Acts 1948 and most recently, significant amendments to the Rules of Court 2012 (ROC 2012) which enable the Courts and lawyers to conduct virtual hearings and trials to take into account the various restrictions due to the pandemic.

The recent amendments in the ROC 2012 which came into effect on 15 December 2020 have now made the adoption of using technology as a permanent feature in the administration of justice in Malaysia. Here’s how the recent amendments to ROC 2012 will positively change Malaysia’s legal landscape in our view.

1. Service of Documents through Electronic Means

Previously, the traditional means of serving documents are to do so personally, by AR Registered Post, Fax, any other method agreed between parties or other methods as Court may direct.

However, with the new Order 62 Rule 6(1)(cc), parties can now effect service of document by way of electronic communication. This amendment will be exercised in accordance with any practice direction issued in the near future. That being said, the term ‘electronic communication’ was not defined in the recent amendment.  Therefore, we may need the Courts to determine in future cases as to whether this method of service includes service via email, instant messaging applications or perhaps social media platforms.

In addition to the above, it must be noted that the new Order 92 Rule 3B now provides wider powers to the Chief Justice in issuing Practice Directions to ensure better effect is given to the ROC 2012 if the Chief Justice opines that it is in the interest of justice, public safety, public health or propriety or for other sufficient reason to do so.

2. Service by Electronic Filing  System (EFS)

The current Court’s electronic filing system (EFS) acts as a portal for filing of documents to the court electronically. Since the MCO and/or CMCO, the Courts in Malaysia stopped accepting service of hard copies of documents. Hence, the only means for parties to serve documents to the Courts is via the EFS. 

The new Rule 17 added to Order 63A of the ROC 2012 now provides that the service of documents can be by way of the EFS between the parties’ solicitors as well. However, the catch is that the party must either be a registered user of the EFS or is represented by a solicitor in order for this electronic method of service to be considered as effective personal service. If a party instructs their solicitor to receive the document in such a manner, they are deemed to have agreed to be served using the electronic filing service. However, it should be noted that this method of service is not available to documents which require actual personal service such as a Writ, Originating Summons and any other originating process.

Once the document is served by one registered user to another and is received by the court’s computer system, the electronic transmission will be deemed to be effective service. For the purpose of proving service, a record of service issued by the Court’s computer system or service bureau which indicates the date and time of such service can be filed via the electronic filing service.

3. Online hearing

One of the most important amendments to the ROC 2012 is the introduction of Order 33A. Order 33A essentially incorporates and gives effect to the recent amendments to the Courts of Judicature Act 1964. This new order governs the rules for hearing or trials to be conducted via ‘Remote Communication Technology’ (‘RCT’). RCT is defined in Order 1 Rule 4 as a live video link, a live television link or any other electronic means of communication.

The Court or the Registrar, by their own motion or upon the application by any party, may now direct parties to use RCT for hearings or any proceedings.

For trials and especially for the testimony of witnesses, the new Order 33A Rule 3 now allows a witness to give evidence via RCT during a period and at a place to be specified by the Court. A prisoner can also attend or give evidence via RCT, but this is subject to consent from both the accused and the public prosecutor, and the Officer in Charge of the prison. In order to ensure a smooth operation of virtual hearings, the Court and registrar will also consider whether there are sufficient administrative and technical facilities or arrangements available to the person, witness or prisoner before directing them to attend court via RCT.

The amendments took into account the potential technical difficulties faced when parties are using technology. Take for an example, if the RCT stops working at any point of time during the proceeding, the Court or Registrar may revoke, suspend or vary their direction in relation to carrying out proceedings via RCT.

In terms of the delivery of judgment, there is a new addition of Rule 1(5) in Order 42 which allows judgments to be pronounced through RCT and such delivery shall be reflected in the judgment or order as per the addition of Rule 5(3).

This new provision has illuminated the opportunity of making legal proceedings more accessible especially during this pandemic which is in line with the overarching ideal of “justice for all”.

4. Encouraging Parties to Mediate

Parties have always been encouraged to consider amicably resolving their disputes before deciding to proceed to trial. For example, at a pre-trial case management (PTCM) session, the Court may advise parties to consider the possibility of a settlement to secure expeditious and economical disposal of an action. This is now further enhanced in the new provision of rule 2(1A) in Order 34 which governs PTCM directions where a High Court Judge now has the power to refer parties to mediation if the Judge identifies issues which can be resolved by way of mediation.

On top of that, the new Order 34 Rule 2(1B) now specifically states that all running down matters, i.e road accident claims shall be referred to mediation which was not provided for prior to the recent amendments.

5.The Rule of 3 Adjournments

As mentioned earlier, many case managements, hearings and/or trials have been vacated or adjourned due to the various movement control orders imposed by the Government. To remedy this issue and the backlog of cases, the Court by way of the amended Order 34 Rule 5 of the ROC 2012, the Court can only adjourn pre-trial case management (PTCM) no more than three times unless there are circumstances requiring otherwise.

On the other hand, according to the amended Order 35 Rule 3 of ROC 2012, a trial can be adjourned for a maximum of 3 times unless the Court is of the opinion that any further adjournment would be for the interest of justice.

6. Small Claims Procedure

For the purposes of Small Claims Procedure pursuant to Order 93 of the ROC 2012 which applies to claims with a value of RM 5,000 and below ordinarily has effect between a plaintiff and defendant. The recent amendment now allows any ‘authorized person’ to represent a Defendant. Any authorized person in the context of a company or an organization includes any person who serves as a full-time paid employee and authorized by the company in which the company or organisation is a party.

Conclusion

In summary, the main amendments of ROC 2012 are a reflection of how the Courts and the legal profession are adapting to the new methods in digitalising the legal system for the administration of justice.

However, are all litigants and lawyers digitally literate and equipped to take this technological leap? And most importantly, do we have proper safeguards in place to curb the inherent problems when using technology? It remains to be seen whether the shift into a new era of digitalisation in the administration of justice would be a double-edged sword. Nonetheless, this is very much a positive first step in the right direction for our legal industry to embrace technology.