SELANGOR BAR COMMITTEE S NOTES ON CHANGES TO THE RULES OF COURT 2012 INTRODUCTION 1. These notes have been prepared to assist members and pupils take note of the changes to Rules. These notes highlight the changes by comparing the new Rules to the Rules of High Court 1980. However only the substantial changes are highlighted. 1.1 Changes such as rephrased text and re-worded terms are not highlighted in these notes. 1.2 Changes to some Orders have corresponding changes to certain rules. (e.g. Summons in Chambers in O32 has been changed to Notice of Application ; thus all rules which previously referred to Summons automatically changes to Notice of Application ). (e.g. O25 has been deleted and replaced by directions under O34; thus all rules which previously referred to directions under O25 have either been deleted or changed to refer to O34) Such changes to the rules are not highlighted in these notes, though the changes to the Orders which lead to these corresponding changes in the rules are. 1
2. Please note that these notes are the analysis of the changes as understood by the Selangor Bar Committee and may differ with the views of others. Members are encouraged to read the Rules for themselves to understand and determine their effect. ORDER 1 - CITATION, APPLICATION, INTERPRETATION AND FORMS Rules come into force on 1 st August 2012. Exception Order 91(revised filing fees). Rules apply to both High Court & Sub Court. Exception proceedings where specific rules have been made. Exception criminal proceedings. Note that Rule 4 introduces some new definitions. Rule 8 spells out Orders which only apply to High Court. These are Orders which traditionally only applied to High Court. ORDER 1A - COURT OR JUDGE SHALL HAVE REGARD TO JUSTICE No material changes Previously Court shall have regard to justice. Changed to Court shall have regard to the overriding interest of justice. ORDER 2 - EFFECT OF NON-COMPLIANCE Rule 1(2) amended to stress that rules are procedural & overriding objective is to enable courts to deal with cases justly. 2
Rule 1(2) further states that parties must assist court to achieve this objective. Rule 1(3) removes court s discretion to set aside proceedings due to irregularity on its own. Therefore now court may only allow proceedings to be amended to cure irregularity. Rule 2 additional condition introduced for applications to set aside proceedings due to irregularity. Non-compliance must have occasioned injustice/prejudice which cannot be cured by amendment/costs. Notice of irregularity must be given before application filed. ORDER 3 TIME Rule 3 deleted court vacation period no longer excluded when computing time for service of pleadings. Rule 6 deleted no longer need to give notice of intention to proceed after a year s delay. ORDER 4 - CONSOLIDATION OF PROCEEDINGS ORDER 5 - MODE OF COMMENCEMENT OF PROCEEDINGS All proceedings commenced by Writ or Originating Summons. No more Petitions & Originating Motions. No more Summons in Sub Court. 3
Exceptions in O94 r2 (Appendix C) Bankruptcy, Winding up, Criminal proceedings, Election Offences, Matrimonial proceedings, Land reference, Admission to Bar. Deciding whether Writ or OS. Substantial dispute of facts file Writ. Proceedings under written law file Originating Summons. Sole/principal question involves construction of law/deed/contract etc. OR unlikely to be substantial dispute of fact file Originating Summons, unless plaintiff wants to file summary judgment or have an appropriate reason to begin by Writ. ORDER 6 - WRITS OF SUMMONS: GENERAL PROVISIONS Rule 1 only one form for Writ. Minor changes to the form of Writ. Teste no need name & titles of Chief Judge. Appearance to writ 14 days (no more 8 & 12 days). Rule 2 summarizes the old rules 2, 3 & 4 on items to be endorsed on the writ. Rule 6(1) deleted relates to writs for service outside jurisdiction. Under O11, notice of writ to be served out of jurisdiction still requires leave. ORDER 7 - ORIGINATING SUMMONS: GENERAL PROVISIONS Rule 1 deleted this order now applies to all OS. Rule 2 only two forms for OS (no more OS which requires appearance). Rule 4 deleted no more concurrent OS. 4
ORDER 8 - ORIGINATING AND OTHER MOTIONS Order Deleted. ORDER 9 PETITIONS Order Deleted. ORDER 10 - SERVICE OF ORIGINATING PROCESS: GENERAL PROVISIONS ORDER 11 - SERVICE OF PROCESS OUT OF JURISDICTION Rule 1 - added two new scenarios where permissible to serve writ outside jurisdiction with leave of court. Action brought under laws relating to carriage by air; & Claim to enforce judgment or award. Rule 9 (7) deletes application of Order 6 to OS (service through judicial authorities, Malaysian consuls etc.). ORDER 12 - ENTRY OF APPEARANCE TO WRIT Rule 2(4) if appearance does not state address or appears address stated is not genuine, besides setting aside the appearance Court may now direct party to provide address/genuine address; and direct that the appearance is valid. 5
Rule 3 provision for Court to serve appearance for defendant has been deleted. Rule 4 time limit for entering appearance is 14 days regardless of jurisdiction (no more 8 day, 12 day or 10 day time limit). Further also 14 days to enter appearance for writ served outside jurisdiction. Rule 8 deleted new Rule 12 states no appearance required for Originating Summons. Rules 6 & 7 deleted no more conditional appearance. New rules 9, 10 & 11 added. Appearance not a waiver of irregularity. Defendant who intends to dispute proceedings shall enter normal appearance and file application accordingly. Application must be filed within time limited for filing of defence. If application dismissed file defence within 14 days. Rule 11 - Defendant may also apply to be served. ORDER 13 - DEFAULT OF APPEARANCE TO WRIT ORDER 14 - SUMMARY JUDGMENT Note Sub Court Affidavit in Reply must be served within 14 days of receipt of application and not 4 clear days before return date. 6
ORDER 14A - DISPOSAL OF CASE ON POINT OF LAW ORDER 15 - CAUSES OF ACTION, COUNTERCLAIMS AND PARTIES New rule 13A. Applies to actions relating to estate of deceased person or actions relating to trust property. Court may direct that notice of the action be served on persons who are not party to proceedings, but will/may be affected by any judgment given. Notice is a new form Form 17. Persons served may enter appearance and become a party. If no appearance, persons will be bound by any judgment given. Rules 18 to 26 deleted provisions relating to actions by paupers. ORDER 16 - THIRD PARTY AND SIMILAR PROCEEDINGS ORDER 17 INTERPLEADER Rule 4 although OS for interpleader must still be served personally, the interlocutory application for interpleader no longer need not be served personally. Rule 7A introduced where claimant withdraws claim or creditor admits claim court will proceed as if no claim made and make such orders as to costs/fees/expenses. 7
ORDER 18 PLEADINGS Rule 5 deleted pleadings can now be served during court vacation. Rule 12(1A) introduced general damages cannot to be quantified in pleadings. Rule 22 trial without pleadings now apply to all actions (previously claims for defamation, false imprisonment, fraud etc. excluded). ORDER 19 - DEFAULT OF PLEADINGS ORDER 20 AMENDMENTS Rule 6 deleted can now amend during court vacation. Rule 12 introduced parties can amend pleadings by agreement before trial. Agreement should be in writing No need to apply to court Simply file amended pleading and serve within 14 days Rule does not apply to addition / omission / substitution of parties ORDER 21 - WITHDRAWAL AND DISCONTINUANCE 8
ORDER 22 - PAYMENT INTO AND OUT OF COURT Order deleted. Note new Order 22B. ORDER 22A - INTERIM PAYMENTS ORDER 22B - OFFER TO SETTLE New Order. Any time before Court disposes of matter, a party may serve on any other party an offer to settle (Form 34). Party may withdraw offer before acceptance (Form 35). Offer is accepted by serving acceptance of offer (Form 36). If accept offer and do not pay party may either apply for judgment on the acceptance OR proceed to trial Offer is deemed to be made without prejudice save as to costs. Offer is not filed and cannot be disclosed in Court. Offer can only be disclosed when all issues, except costs, have been determined. Where plaintiff obtains judgment which is not better than offer, plaintiff only entitled to costs up to date of offer & defendant entitled to costs from that date. 9
Note provisions on two or more defendants where there is joint & several liability as well as offer to contribute between them. ORDER 23 - SECURITY FOR COSTS Rules 2A, 2B & 2C introduced allows for security of costs against non-parties. where a non-party has assigned the right to claim to plaintiff to avoid costs OR where non-party has contributed/agreed to contribute to plaintiff s costs in return for share in plaintiff s claim Court may order non-party to give security for the defendant s costs, if it is just to do so Application must be served on non-party personally ORDER 24 - DISCOVERY AND INSPECTION OF DOCUMENTS Rules 1 & 2 deleted no mutual discovery & discovery without order. Discovery only through court order. Rule 3 has been simplified and further describes the documents which may be subject to discovery. Court may order any party to serve list of documents in his possession/custody/power Court may also order party to file affidavit verifying list of documents Documents which may be ordered to discover are Documents which the party relies or will rely AND Documents which adversely affect his case / another party s case or which support another party s case 10
New rule 7(3) describes documents which may be subject to order for discovery of particular document. Documents which the party relies or will rely AND Documents which adversely affect or support a party s case Documents which may lead to information that may affect or support a party s case Rule 7(4) introduced cannot seek discovery of particular document unless order for general discovery obtained first (unless court thinks it necessary) Rule 7A introduced procedure for discovery before commencement of proceedings & discovery against non-party Purpose is to identify possible parties to proceedings Rule 8A introduced party ordered to give discovery shall remain under continuous duty to give discovery until proceedings conclude. Rule 12 describes documents which may be subject to an order to produce. Documents which the party relies or will rely AND Documents which adversely affect or support a party s case Documents which may lead to information that may affect or support a party s case Rule 16 (2), (3) & (4) deleted no more committal in event of failure to comply. Rule 16 (5) introduced party who fails to comply with order for discovery or order to produce, may not rely on those documents. ORDER 25 - SUMMONS FOR DIRECTIONS Order deleted. 11
ORDER 26 INTERROGATORIES Rule 1 (1) amended party must answer interrogatories within 14 days from date of service (previously Court prescribed time). Rule 6 (2) introduced party who fails to answer interrogatories sufficiently may be asked to give further and better particulars. ORDER 27 ADMISSIONS ORDER 28 - ORIGINATING SUMMONS PROCEDURE Rule 1 amended Order applies to all OS. Rules 2, 3 & 6 deleted no more OS requiring appearance. Rule 3A introduced OS to be heard in chambers unless expressly provided by Rules/law/practice direction. Rule 3B introduced for defendant to dispute jurisdiction, service, order extending validity, order for service outside jurisdiction, Malaysia not proper forum etc. Must apply to court within 21 days of service of OS Rule 3C introduced to regulate time limit for service of Affidavits. Affidavit in Support (if not served with OS) within 7 days of service of OS (ex parte OS must serve together) Affidavit in Reply within 21 days 12
Subsequent Affidavits within 14 days Rule 4 amended where order given because defendant does not appear, court may rehear OS if satisfied it is just to do so (previously may vary/revoke by subsequent order) ORDER 29 - INTERLOCUTORY INJUNCTIONS, INTERIM PRESERVATION OF PROPERTY Rule 1 (2) amended allows defendant to make ex-parte application (previously only plaintiff could apply) Rule 1 (2BA) amended court must fix inter partes date within 14 days of ex parte order (previously 21 days) Rule 3 amended where injunction granted before issue of originating process, and originating process is not issued within 2 days of injunction, court may discharge the injunction ORDER 30 RECEIVERS rule 6 (2) - interest changed from 8% to as Chief Judge may direct. ORDER 31 SALE OF IMMOVABLE PROPERTY BY ORDER OF COURT No material changes 13
ORDER 32 APPLICATIONS & PROCEEDINGS IN CHAMBERS Form for all interlocutory applications changed. All applications in chambers are to be done by Notice of Application in Form 57. No more Summons In Chambers. Rule 7 deleted - No more writ of subpoena for purposes of compelling witness to attend proceedings in Chambers Notice Of Application shall be heard in Chambers. Affidavit in Reply file/served within 14 days from the date of receipt of the sealed application and supporting affidavit (21 days if deponent outside Malaysia). ORDER 33 MODE OF TRIAL For trials with assistance of assessors, specific rules have been introduced which regulate appointment of assessor, objections to such appointments, their qualifications, remuneration etc. ORDER 34 PRE TRIAL CASE MANAGEMENT This Order has been revamped substantially. Rule 1 empowers court with wide powers to give directions for just, expeditious and economic disposal of cases (similar with current practice in NCvC and NCC courts). Failure to comply - court can dismiss the action, strike out the defence or counterclaim or make such other order. 14
Rule 2 powers to give pre-trial directions on conduct of proceedings, including mediation, filing of Bundle Of Pleadings, Common Bundle Part A, Bundle Of Documents involving Part B & C, Agreed Facts & Issues, time to file & exchange list of witness, time to file & exchange Witness Statements etc. Failure to comply or attend case management court may dismiss the action, strike out the defence or counterclaim, enter judgment or make such order. Rule 7 court shall endeavor to secure admissions and agreements on conduct of proceedings. Rule 8 parties shall give all information and documents as required by court during case management (except privileged documents). Rule 9 parties who want to apply for certain interlocutory orders (e.g. consolidation, transfer, amendment, security for costs, discovery, interrogatories etc.) need not file a separate application and can instead apply at case management date for such interlocutory orders or directions in Form 60. must serve Form 60 notice 7 days before case management date after case management and before trial, parties can still seek similar orders but need to file notice of application Rule 10 introduces automatic directions for personal injury cases. does not apply to personal injury cases of admiralty action (collision) and medical & dental negligence cases specific time limits provided for discovery, expert reports, sketch plan etc., as well as time period to set down for trial 15
ORDER 35 PROCEEDINGS AT TRIAL Rule 2 in relation to applications to set aside Order which was given in absence of a party. application must be filed within 14 days from date of Order or such time as the court may allow (previously 7 days after trial) lays down the factors court shall take into account when hearing such applications ORDER 35A WITNESS STATEMENT Order has been deleted. Witness Statements now dealt with under Order 34. ORDER 36 TRIALS & INQUIRIES BY REGISTRAR ORDER 37 ASSESSMENT OF DAMAGES Rule 1 amended - Application for assessment shall be made by successful party within 1 month of judgment to registrar for directions and Order 34 shall apply. Registrar then shall give necessary directions including filing of notice of appointment. Subject to such directions, the notice of appointment shall be filed within 6 months of judgment (but cannot file until directions complied with). If successful party don t apply for directions or file notice of appointment within time, other party can apply. 16
Registrar can compel attendance of witnesses & production of documents and Order 35 shall apply. ORDER 38 EVIDENCE : GENERAL Rule 2 evidence in chief shall be given by way of witness statements (though court has discretion to dispense). However if said witness fails to attend trial and cannot be cross examined, his witness statement shall not be received by court. Witness Statement to be filed & served 7 days before trial. Rules 4 & 6 deleted on experts & accident. Writ of subpoena now known as subpoena. ORDER 39 EVIDENCE BY DEPOSITION : EXAMINERS OF THE COURT ORDER 40 COURT EXPERT ORDER 40A EXPERT OF PARTIES New Order introduced regulates expert evidence. Expert s duty is to court and not to party appointing him. 17
Evidence must be given in a report and report must state expert s qualifications, state any literature or material he relied on when making the report, contain a statement on what issues he is asked to comment on and the basis of his statement, state reasons of his opinion etc. Other party may seek clarification of report by seeking leave and putting written questions to expert. Expert s answers must be in writing and shall form part of his report. Court may direct two or more experts to discuss and agree on any issue; as well as prepare a report on reasons for disagreeing on an issue. However such discussion and agreement shall not bind parties, and will not be referred to by court unless parties agree. ORDER 41 - AFFIDAVITS New Rule 13 - affidavit of deponent affirmed overseas may be filed in English and unless the Court otherwise orders need not have BM translation. ORDER 42 JUDGMENT AND ORDERS Rule 1 summarizes and simplifies the previous rules 1 to 3. New Rule 1A judgment in proceedings heard in camera not available for public inspection unless Court allows. New Rule 2A subject to 1A, all judgments available for public inspection for a fee. 18
Rule 12 interest on judgment debt shall be at rate determined by CJ unless agreed by parties (previously 8%). Rule 12A regulates late payment charge on judgment debts for Islamic finance matters. ORDER 43 ACCOUNTS & INQUIRIES Rule 1(2) Order now applies to defendant with a counterclaim. Rules 3 (3) (6) introduces directions on account taking. Rule 5A introduced to regulate filing of documents before taking of accounts and inquiries. ORDER 44 PROCEEDINGS UNDER JUDGMENTS AND ORDERS ON EQUITY SIDE Rule 18 (2) - interest changed from 8% to as Chief Judge may direct. ORDER 45 ENFORCEMENT OF JUDGMENTS AND ORDERS Rule 1 amended to clarify that enforcement by charging order and appointment of receiver can only be done in High Court. Rule 11A new rule introduced whereby after the commencement of execution proceedings, the court may direct any party to appear before the court for the purposes of just & expeditious disposal of the execution proceedings including striking out of any writ of execution. 19
ORDER 46 WRITS OF EXECUTION : GENERAL Rule 6 (2A) defines what is meant by wholly executed to explain situations where a writ has not been wholly executed. Rule 26A provides Form for order suspending or staying execution. Court also has power to order person subject to execution to pay expenses/costs incurred before suspension. ORDER 47 WRITS OF SEIZURE AND SALE Rule 6 amended to state application may be made ex parte as well as state required contents of the affidavit in support. Rule further amended to state court may order release of property seized if sufficient cause shown. Rule 7 amended to introduce various new conditions for the sale of immovable property. Rules 8 & 9 newly introduced to regulate seizure of stock and securities. ORDER 48 EXAMINATION OF JUDGMENT DEBTOR ORDER 49 GARNISHEE PROCEEDINGS New Rule 1(3) explains that any debt due or accruing debt includes current and deposit accounts in Bank. 20
ORDER 50 CHARGING ORDERS, STOP ORDERS ETC. ORDER 51 RECEIVERS : EQUITABLE EXECUTION ORDER 51A RATEABLE DISTRIBUTION Rule 4(d) changed prohibitory order shall cease to affect property after 12 months (previously 6 months). ORDER 52 COMMITTAL ORDER 53 APPLICATION FOR JUDICIAL REVIEW Rule 3(6) application for judicial review shall be made within 3 months from date grounds of application arose or decision communicated (previously 40 days). note that any application to extend time must now be heard inter partes Rule 6 amended applications for discovery, interrogatories and cross examination of deponent can be made anytime during proceedings (previously limited to 14 days after leave granted). 21
ORDER 54 deleted There is no Order 54 ORDER 55 APPEALS TO HIGH COURT FROM SUBORDINATE COURTS This Order only applies to appeals from Subordinate Courts (previously also applied to appeals from Statutory Bodies, which is now governed by O55A) Substantial changes to appeal procedure. All appeals shall be by way of re-hearing. Rules 3 & 4 - Appeals after trial. Notice of Appeal (Form 111) filed/served within 14 days of decision. File only in Sub Court Pay RM1,000 as security for costs of appeal within same 14 days Apply for notes & grounds within same 14 days Record of Appeal filed/served within 1 month of filing Notice of Appeal (irrespective of whether notes & grounds available) Rule 4(1) stipulates contents of Record. No need to include Notes, Grounds & sealed Judgment if not ready Notes, Grounds, sealed Judgment & amended Memorandum of Appeal can be filed as Supplementary Record without leave Absence of Grounds shall not prevent appellant from proceeding with appeal Note requirement to forward and secure approval of draft index for Record before filing 22
Rule 5 - Appeals other than from trial (include interlocutory appeals). Notice of Appeal (Form 111A) filed/served within 14 days of decision. File in Sub Court, extend copy to High Court Record of Appeal filed/served within 1 month of filing Notice of Appeal Rule 5(3) stipulates contents of Record. No Notes & Grounds Rule 8 notice of cross appeal to be filed within 14 days of service of Record of Appeal (previously 7 days from service of memorandum of appeal). Besides these, no other material changes. Therefore no changes relating to restriction on fresh evidence, amendments, cases where a party fails to appear etc. ORDER 55A APPEALS TO HIGH COURT UNDER WRITTEN LAW New Order governing appeals to High Court under any written law (e.g. would apply to decisions of the Labour Office). Appeal by Originating Summons stating grounds and supported by Affidavit. Affidavit must exhibit all documents parties consider relevant Affidavit to exhibit Notes, Grounds & Decision (if available) Must file within 1 month of date of decision or date decision was notified ORDER 56 APPEALS FROM REGISTRAR OF HIGH COURT TO JUDGE IN CHAMBERS Rule 3 Appeal must be filed within 14 days from date of decision (previously 10 days). ORDER 57 TRANSFER OF PROCEEDINGS New Order regulating transfer of proceedings between courts. 23
For transfer of proceedings between courts of co-ordinate jurisdiction, any court can make such order on application of party. For transfer of proceedings between High Court and Sub Court, only High Court can make such order on application of party. For transfer of proceedings between Sessions Court and Magistrates Court, only Sessions Court can make such order on application of party. In determining whether to transfer, must consider whether Court to hear matter is located/located near cause of action arose, defendant s address, facts occurred, land where dispute situated or any other reasons which is in interest of justice. Rules 2 to 4 regulate the procedure on transfer. states the documents, cause papers and notices to be sent empowers new Court to give such directions as are required ORDER 58 deleted There is no Order 58. ORDER 59 COSTS Substantial changes to this Order. Court now award costs without having costs taxed. Taxation of bill of costs has been removed. 24
Rule 1 contains definitions and explanation of certain words. Rule 1(3) explains the meaning and effect of various costs terminology e.g. meaning of costs in any event, costs here & below, costs thrown away etc.) Rule 2 and Rule 3 (1) & (2) are maintained. Rule 4 Court will take into account offer of contribution and offer of settlement (Order 22B) when deciding on costs. Rule 5 maintains previous Rule 7 (1) & (2) in relation to costs arising from misconduct or neglect. Rule 6 maintains previous Rule 8 but with some amendments, in relation to personal liability of solicitor. Rule 7 provides Court may deal with costs at any stage of proceedings or after conclusion of proceedings; though costs only to be paid after conclusion of proceedings unless order to contrary. At conclusion of proceedings, Court to hear submissions on costs and order such costs as deem fit Submissions may be part of substantive submissions or separately on costs alone Submission of costs shall enclose bill of costs (Form 117) which will include particulars of getting up for work done and disbursements Court hearing appeal can determine costs for appeal, costs of proceedings below and costs of any connected proceedings Where costs determined in respect of High Court, allocatur certificate shall be issued by Registrar upon payment of allocatur fee (4% of costs) 25
Rule 8 provides special matters to be taken into consideration in determining costs. offer of contribution or settlement (O22B) conduct of parties conduct in relation to attempts to resolve matter extent parties followed directions Rule 9 - maintains previous Rule 6 in relation to restriction of discretion. Rule 10 where party has failed to establish a claim or issue which was unnecessarily raised, Court can make appropriate order of costs against said party. Rule 11 where plaintiff without leave discontinues action or withdraws claim, defendant may ask that costs be granted to him or be entitled to costs of Sub Court action; and if costs not paid within 7 days, he can sign judgment for them. Same effect for appeals withdrawn under O56. Rule 12 maintains previous Rule 12 but with some amendments, in relation to powers of Registrar to determine costs. Rule 13 maintains previous Rule 16 but with some amendments, in relation to set off where party liable to pay costs also entitled to receive costs. Rule 14 maintains previous Rule 19 in relation to fees for more than one counsel, but removes the stipulated time limit. Rule 15 maintains previous Rule 27 but with amendments, in relation to costs payable by another or out of fund. 26
Rule 16 stipulates basis for assessment for costs. In assessing costs, Court shall have regard to all relevant circumstances, particularly: complexity of matter, difficulty or novelty of questions involved skill, knowledge, responsibility of counsel as well as time and labour expended number and importance of documents place and circumstances business transacted importance of matter to client value of claim fees payable to counsel in respect of other items in same matter which has reduced work here Costs shall be determined on a standard basis, unless Court considers appropriate for costs to be on indemnity basis When assessing on standard basis Court shall allow reasonable amount of all costs reasonably incurred. Doubts resolved in favour of paying party When assessing on indemnity basis Court shall allow all costs unless unreasonable amount or unreasonably incurred. Doubts resolved in favour of paying party If Court does not indicate basis, costs shall be determined on standard basis If Sub Court matter brought in High Court, party only entitled to costs as if proceedings filed in Sub Court, unless Judge certifies that action justified to be filed in High Court Rule 17 maintains previous Rule 28 but with amendments, in relation to costs payable to solicitor by own client. Rule 18 maintains previous Rule 30 but with amendments, in relation to costs payable to trustee out of trust fund. 27
Rule 19 Costs payable for High Court trial at discretion of Court and shall be determined at conclusion of trial. Factors in Rule 16 relevant. Rule 20 Costs payable for Sub Court interlocutory applications Magistrates Court not exceeding RM2500 & Sessions Court not exceeding RM8000. Rule 21 Costs payable for High Court interlocutory applications which are outside ambit of Rule 22 - at discretion of Court and factors in Rule 16 relevant. Rule 22 provides scale costs for interlocutory judgment in all three courts Where defendant pays on receipt of writ first scale in Appendix Part 1 Where judgment in default entered second scale in Appendix Part 1 Where application for summary judgment, judgment after striking out, judgment on disposal of point of law, judgment on admission, judgment for failure to comply directions etc. third scale in Appendix Part 1 Also entitled to additional costs as allowed in Appendix Part 2 Where costs on indemnity basis, further entitled to additional costs as allowed in Appendix Part 3 However this Part does not apply to judgment where damages are to be assessed as well as relief for charge actions Appendix Part 4 allows for further costs in certain designated cases. Rule 23 - Costs payable for Sub Court trial according to fixed scale of costs. Attendance in open court for mention, JDS etc. additional RM100 each attendance Judgment by admission no advocacy costs Where after matter fixed for trial; claim withdrawn, matter settled etc. only half advocacy costs allowed 28
Where on trial date but before trial begins; claim withdrawn, judgment given, action dismissed etc. only half advocacy costs allowed Where after trial begins; claim withdrawn, judgment given, action dismissed etc. full advocacy costs allowed Trial adjourned at request of a party; party may be required to pay costs not exceeding ¼ of advocacy costs Witnesses may be allowed a reasonable fee and travelling allowance Rule 24 An award for costs shall carry such interest rate as provided under O42, from date of award until full payment. ORDER 60 THE REGISTRY ORDER 61 SITTINGS, VACATION AND OFFICE HOURS ORDER 62 - SERVICE OF DOCUMENTS Rule 6(1) ordinary service now includes service by facsimile or in manner agreed between parties. Rule 6(3) - regulates service by facsimile the party serving the document and the party on whom the document is served must be represented by solicitor solicitor on whom document is served has indicated that he is willing to accept service by facsimile at a specified number (inscription of fax number on 29
solicitor s writing paper shall be deemed to show willingness to accept service by fax); the document must be transmitted to this number the hard copy of the document is served within 3 days after the day of service by facsimile. ORDER 63 - PAPER, PRINTING, NOTICES AND COPIES Rule 1 cause papers may now be printed on both sides of paper. ORDER 63A - ELECTRONIC FILING New Order provides rules regulating implementation of e-filing system, service bureaus & online filing. Rule 7(4) Registrar may allow document to be filed other than by e-filing. Rules 9(1) and (2) - Document is deemed filed upon successful payment into the Court s computer system. Document is deemed to be sealed and issued upon successful payment into the Court s computer system. Rule 9(3) - If upon application the Registrar is satisfied for any reason that a document should be treated as filed at some earlier date and time, he may order the document to be amended to reflect such earlier date and time. Rule 10 when time begin to run for service Document not requiring seal of court filed online from time Registrar s notification is received Document not requiring seal of court filed at service bureau from successful payment of prescribed fee 30
Document requiring seal of court from time sealed document is received in computer system of solicitor (if received on holiday deemed received on next working day Rules 11 to 13 regulate notifications, amendments and affidavits. Rules 14 to 16 prescribes presumptions on application of e-filing system, prevailing information is event of discrepancy and interpretations. ORDER 64 CHANGE OF SOLICITOR ORDER 65 - SERVICE OF FOREIGN PROCESS New Rule 2A - service of foreign legal process may be effected by methods of service in these Rules. ORDER 66 OBTAINING EVIDENCE FOR FOREIGN COURT ORDER 67 RECIPROCAL ENFORCEMENT OF JUDGMENTS ORDER 68 deleted There is no Order 68. 31
ORDER 69 ARBITRATION PROCEEDINGS Order has been completely re-drafted Makes references to claims under the 2005 and 1952 Acts Provides procedure on commencement of claim, applications to set aside award, applications to refer questions of law, preliminary questions of law, enforcement of awards, registration of foreign awards, stay of proceedings, extension of time, service out of jurisdiction and others ORDER 70 - ADMIRALTY PROCEEDINGS Order has substantial changes Rule 2 (1A) provides for admiralty action in personam (previously only actions in rem). New rules in relation to issue of writ & appearance, proceedings relating to International Oil Pollution Compensation Fund, service out of jurisdiction, warrant of arrest, service of writ, execution of warrant of arrest, service on ships and many more ORDER 71 - NON-CONTENTIOUS PROBATE PROCEEDINGS Rule 5(1) application for a grant must be by originating summons in Form 5 and shall be supported by an affidavit setting out the information in Form 159. information in Form 159 is the same as those set out in the Petition (Form 168) of RHC. The word petition has been replaced with originating summons. 32
New Rule 47A replaces old 46A, 46B & 46C relating to deposit & inspection of original wills in Court. Rule 48 deleted relating to power of Registrar to require applications be made. New Rule 49 Memorandum and Notice of resealing of Grant shall be in Forms 168 & 169. ORDER 72 CONTENTIOUS PROBATE PROCEEDINGS Rule 11 service of Statement of Claim 14 days after filing of rule 9 Affidavit (previously 8 days). Rule 17 deleted relating to applications by motion. ORDER 73 PROCEEDINGS BY AND AGAINST THE GOVERNMENT ORDER 74 - DEBTORS ACT 1957 New Rule 3A adopts O37 r3 Sub Court Rules, relating to issue of judgment debtor summons not preventing application for order of arrest. New Rules 11A to 11D - adopts O37 r13 - r16 Sub Court Rules, relating to judgment debtor summons. New Rule 23 - adopts O37 r23 Sub Court Rules, relating to costs. 33
ORDER 75 DISTRESS ACT 1951 ORDER 76 DISABILITY Rule 1 - refers to the Mental Health Act 2001 instead of Mental Disorders Ordinance 1952 & refers to minor instead of infant. New Rule 1A jurisdiction of the High Court to grant leave pursuant to the Mental Health Act 2001 to bring proceedings against a person. The terms guardian ad litem and next friend are replaced with litigation representative. Rule 4(9) deleted. ORDER 77 PARTNERS ORDER 78 DEFAMATION ACTIONS ORDER 79 MONEYLENDERS ACTIONS Rule 3 additional particular to be pleaded in statement of claim i.e. the form in which the money was lent. 34
Rule 5 deleted presumably cannot proceed by Originating Summons. ORDER 80 ADMINISTRATION AND SIMILAR ACTIONS ORDER 81- ACTIONS FOR SPECIFIC PERFORMANCE, SUMMARY JUDGMENT ORDER 82 DEBENTURE HOLDERS ACTION : RECEIVER S REGISTER ORDER 83 - CHARGE ACTIONS Amended to reflect that Originating Summons used does not require appearance and therefore no more notice of appointment. Rule 2(1) references to appearance deleted Rule 2(2) references to notice of appointment deleted. OS (not notice of appointment) to be served 4 days before hearing Rule 2(4) references to notice of appointment deleted. Where hearing adjourned, then the plaintiff must serve a written notice of the adjourned hearing (instead of notice of appointment) 2 days before adjourned hearing. However this requirement only necessary where defendant was absent from the earlier hearing Rule 2(5) codifies requirement to prove service by affidavit of service 35
Rule 3(3) amended affidavit need only state amount due under charge as at date of hearing (previously must state loan sum, repayment sum, installment in arrears etc.). Rule 3(7) deleted affidavit no longer need to state sum of daily interest. ORDER 84 PROCEEDINGS RELATING TO INFANTS ORDER 85 BILLS OF SALE ACT 1950 References in Order to summons ex parte amended to ex parte originating summons. Rule 3 deleted refers to appearance for OS (now irrelevant). ORDER 85A - PROCEEDINGS ARISING OUT OF HIRE-PURCHASE AGREEMENTS Adopts Order 46 Sub Court Rules. ORDER 86 INHERITANCE (FAMILY PROVISION) ACT 1971 ORDER 86A - EMPLOYMENT ACT 1955 Adopts Order 39 Sub Court Rules. 36
ORDER 87 TRADE MARKS ACT 1976 ORDER 88 COMPANIES ACT 1965 Rule 2 amended except for proceedings relating to winding up and capital reduction, all other proceedings shall be commenced by Originating Summons. Rules 3 to 6 deleted relating to actions to commence by petition and motion as well as entitlement of proceedings. Rule 7(1) to (3) deleted relating to summons for directions. Note Rule 7(4) & (5) still applies on directions to be given. ORDER 89 SUMMARY PROCEEDINGS FOR POSSESSION OF LAND Rule 2 introduces a Note which shall be included at the end of the Originating Summons. New Rule 3 (2) where plaintiff unable to identify occupant, he must state in supporting affidavit the reasonable steps taken to identify occupants. ORDER 90 LODGMENT IN COURT AND PAYMENT TO SHERIFF New Rule 6 (3) parties may apply to court for monies lodged in court to be deposited in an interest bearing account in a bank. 37
New Rule 8 (3) applications with respect funds in court which do not exceed RM50,000 may be made to Registrar (previously RM5,000). Rule 11 (5) deleted no notice to collector of estate duty. Rule 18 (3) deleted provision that interest not payable for monies deposited with sheriff deleted. ORDER 91 COURT FEES ORDER 92 MISCELLANEOUS Rule 1(3) - An affidavit in a foreign language shall be filed with translation by annexing the affidavit and translation as exhibits to translator s affidavit. Rule 1(4) - In urgent cases, proceedings may be commenced in English is allowed, provided that a certificate of urgency is filed copies of BM version filed within 2 weeks. Rule 2A Where document filed with insufficient fees, Registrar shall accept document and give notice to solicitor to make good shortfall within 7 days, failing which document is rejected. If excess fees paid, there is no refund. Rule 3 deleted Registrar can no longer reject document for non-compliance with rules. ORDER 93 - SMALL CLAIMS PROCEDURE Adopts Order 54 Sub Court Rules 38
ORDER 94 - REPEAL, SAVING AND TRANSITIONAL PROVISIONS Rule 1 repeals Rules of High Court & Sub Court Rules. Order 5 rule 1 do not apply to proceedings in Appendix C, which are proceedings provided under any written law. Any other proceedings provided under written law shall be commenced by OS and in accordance with these rules. Actions commenced by Petition, Originating Motion or Motion before commencement of these rules, shall proceed under old rules. APPENDIX C LIST OF EXEMPTED LAWS (1) Item (2) Proceedings (3) Written Law 1. Bankruptcy proceedings Bankruptcy Act 1967 2. Proceedings relating to the winding up Companies Act 1965 of companies and capital reduction 3. Criminal proceedings Criminal Procedure Code [Act 593] 4. Proceedings under the Elections Offences Elections Offences Act 1954 [Act 5] Act 1954 5. Matrimonial proceedings Law Reform (Marriage and Divorce) Act 1976 [Act 164] 6. Land reference Land Acquisition Act 1960 [Act 486] 39
7. Admission to the Bar Legal Profession Act 1976 [Act 166] Advocates Ordinance of Sabah [Sabah Cap. 2] Advocates Ordinance of Sarawak [Sarawak Cap. 110] 40