IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 077 of 2007

Between:

TANIELA SMITH
Plaintiff

And:

MIN SIK PAK AND ANR.
Defendant

Before: Master Udit

Counsel: Mr D. Singh for the Plaintiff
Mr S. Kofe for the Defendant 

Date of Ruling: 19th December, 2008

RULING
(Convening of Pre-Trial Conference- agreed bundle of documents)

Introduction

[1]	On 8th August, 2007 the plaintiff filed a summons for interlocutory judgment inter-alia seeking the following orders.

(a)	That the defence filed herein the struck out and an interlocutory judgment be entered for the plaintiff for damages to be assessed on the ground that the defendant’s solicitors have failed to return the minutes of a pre trial conference despite several request from the plaintiff’s solicitors to do so.

(b)	That this action be entered for trial and a hearing date be set alternatively

(c)	That the pre-trial conference be dispensed with.

(d)	That the defendant’s or their solicitors personally do pay the costs of this application to the plaintiff on an indemnity basis within 7 days of the date of this order.

[2]	The application is supported by an affidavit of Jagdish Prasad of Tamavua, a law clerk employed by ‘D. Singh Lawyer’ of Suva. In paragraph 1 of the affidavit the deponent states that he has been duly authorised by the plaintiff to file this affidavit on his behalf. Furthermore in paragraph 2 he stresses of having personal knowledge of the matters contained in this action, as such is able to depose to the facts thereto. Since the affidavit contains information contained in the clients file which is in the custody of the solicitors, I will allow the clerk’s affidavit.

[3]	The summons was listed before me for 30th August, 2007. It was served to the defendant on 9th August, 2007. Twenty one days had already lapsed from the time of the service and the listing of the summons before me. Despite ample opportunity being given to the defendant, he opted not to file any answering affidavit. 

Consideration of the Issues

[4]	The principle issue pertaining to this application is the convening of a mandatory pre-trial conference. The uncontested complaint is that the defendant’s solicitors have not co-operated by not convening a pre-trial conference. Time and again the Counsel appear before me with this difficulty. It appears that there is a serious difficulty with some Practitioners regarding the convening of a Pre-trial Conference. Whilst there maybe many prevailing reasons but the dominant one seems to be a general lack of willingness on the part of those practitioners to comply with Rules and Orders of the Court. To such Practitioner the answer is simple. By conducting in such an un-profound manner, they are flouting the Rules and Orders of Court. Both, the rule and orders are there to be incontestably complied with unless otherwise ordered. 

[5]	It is for that reason I have decided to deliver this ruling to clearly state to the Practitioners significance of convening a meaningful a pre-trial conference. A "Conference" is defined in "The Concise Oxford Dictionary, 1990, at page 239 as:- 

(1)	a meeting for discussion

(2)	the linking of severed telephones, computer terminals, etc so that each user may communicate with the other simultaneously.
(emphasis added)

[6]	Following from the definition, the phrase "Pre-trial Conference" necessitates the meeting or discussion of counsel in a matter for the purposes of a trial. Therefore the practice of exchanging and executing minutes where no conference is held is not a pre-trial conference minutes under order 34, rule 2; Bhawis Pratap –v- Christian Mission Fellowship Civil Appeal No. ABU 0093/2005. Under the High Court Rules, such a conference is to be commenced after the completion of all pleadings and discoveries. Before an action is set down for trial the solicitors setting down the action for the trial must make written requests for the date of the hearing and state whether a pre-trial conference under the rule has been held and if not must state the reasons thereof".

[7]	I will begin by referring to Ord. 34, r. 2 of the High Court Rules 1988. For the sake of completeness I will recite the whole rule:

"Pre-trial conference (O. 34, r. 2)

2- (1)	The provisions of this rule apply only in proceedings in which all the parties are represented solicitors.

(2)	Before an action may be set down for trial the solicitor acting for any of the parties shall make a written request to all the other solicitors acting for other parties to the action to attend a conference at a mutually convenient time and place, with the object of reaching agreement as to possible ways of curtailing the duration of the trial, and, in particular, as to all or any of the following matters:-

(a)	the possibility of obtaining admission of facts or documents;

(b)	the holding of inspections and examinations;

(c)	the discovery of document;

(d)	the exchange between parties of reports of experts;

(e)	the plans, diagrams, photographs, models and similar articles to be used at the trial;

(f)	the quantum of damages; and

(g)	the consolidation of trials.

(3)	If any solicitor refuses to attend such a conference, the solicitor requesting the same may apply to the court for an order that such conference be held, and the court may order that such conference be held as such time and place and for such purpose as shall be specified in the order, or may order that such conference need not be held. 

(4)	At the conclusion of any such conference the solicitors attending it shall draw up and sign a minute containing a succinct statement of 

(a)	the matters, if any, upon which they are agreed

(b)	the issues whether of fact, law or procedure remaining for determination by court.

(5)	When a solicitor sets an action down for trial or makes a written request for the date of the hearing thereof he must state in writing whether pre-trial conference under this rule has been held and if not must state the reasons thereof." 

[8]	In order to ease some of the difficulties of convening a pre-trial conference, the directions currently given by the court is appropriately couched. The general directions are still given under Ord. 25 of the High Court Rules 1988 pursuant to the Summons for Directions. Every effort is made to give directions to suit the facts of each individual case. But that too needs the co-operation of the Practitioners. 

[9]	The change in the Direction Orders is to the filing of the documents. Affidavit Verifying List of Documents is now ordered to be filed simultaneously by all the parties to the proceedings. This is to overcome the former practice of waiting for the plaintiff to first file the documents before other parties do. Next, the parties are to compulsorily exchange the documents. The normal practice in the past has been for the parties to inspect the documents. The reason as why an order for compulsory exchange of documents is made is to ensure that Counsel for each party is able to read the documents and the pleadings in advance before convening a pre-trial conference. Only after the exchange of documents, Counsel are to convene a pre-trial conference. 

[10]	There have been concerns raised by Practitioners that due to geographical location, pre-trial conference becomes an expensive affair particularly if it is to be done properly. In so far as the geographical location is concerned, with the modern technology there are a number of ways pre-trial conference may be convened. Pre-trial conferences can be conducted over a tele-conference, emails, and voice over the internet. I leave the means by which pre-trial conference is convened to the practitioners. Counsel are to ensure that pre-trial conference is seriously attended to. If a Counsel appears in a pre-trial conference without having the full knowledge of the facts and evidence of a case and for that reason a conference is to be vacated, the Counsel may be liable to pay costs personally. 

[11]	As a starting point, it is important for the plaintiff’s Counsel to draft a comprehensive pre-trial conference minutes and forward it to all the respective parties for consideration. In that regard a maximum number of facts which is capable of being admitted is to be included in the draft. Thereafter, the mandatory meeting be held. During the meeting parties must have with them soft copies of the draft minutes so that it can be finalised and possibly executed at the conclusion of the meeting. The practice of finalising minutes three or four weeks after convening the conference should be stopped at once. 

[12]	Since I often review pre-trial conference minutes, I have noted the facts admitted and issues raised are only those from the pleadings. This practice must be abandoned at once. Certainly, once the totality of the evidence (after exchange of documents) is considered a number of issues in the pleadings are automatically self-resolved. They must be properly reflected in the pre-trial conference minute. It makes no sense if Counsel merely regurgitates the issues in the pleadings. I will reiterate here that the whole purpose of a pre-trial conference is to look at the totality of the evidence to be adduced in the trial together with the pleading. That would ensure that the issues are considered and condensed in pre-trial conference minutes.

[13] 	Once the draft pre-trial conference minutes are circulated, Counsel may convene conference over the telephone via a Teleconference or other electronic means. But this is to be only used in simple and straight forward cases. Whilst convening the pre-trial conference over the telephone or internet parties should have access to all the documents. Such a conference should not be any inferior standard to one convened in the physical presence of counsel. The preamble to the minutes must correctly state in the minutes as to the manner in which the conference was held. Be that as it may ultimately there is no substitute to convening a pre-trial conference on a round table.

[14]	There can be substantive discussion via e-mail or written documents. But it does not have to be one way transaction. There has to be a meeting of minds. If the telephone conference or written conference via e-mail has failed, Counsel should appear before the Master for a pre-trial conference. The reason pre-trial conference is to be convened between the Counsel is that they are the ones who are familiar with the case, facts and law. Needless to mention, they conduct the trial. At this juncture, I may add that counsel conducting trial must do the conference and not a junior Counsel or Solicitor’s Clerk.

[15]	The parameter of a case is contained in the respective pleadings. Thus the pre-trial conference minutes must contain only those matters which are within the bounds of pleadings. If amendments are required after discovery or pre trial conference it must be sought without delay. This will resolve the complaint of parties seeking to include matter not specifically contained in the pleadings.

[16]	It is compulsory for the parties to convene pre-trial conference. It will very rarely be the case that the Court may dispense with the pre-trial conference. Time and again the Court has reminded the parties of the importance of convening a pre-trial conference. The Court of Appeal in George Transport Limited -v- Laisa Vosawale Civil Appeal No. ABU 0035/2004 (11 November, 2005) in respect of a pre-trial conference minutes at paragraph 18 of the judgment said:-

"Ord. 34, r. 2 of the High Court Rules requires a pre-trial conference to be held before an action may be set down for trial. It appears that no such conference was held although we were told that draft minutes had been prepared. It does not seem that any of the matters set out in Ord. 32, r. 2 (2) were properly addressed. In view of the short comings in the manner in which this litigation was conducted, the omission to comply with the rules was serious and can not be condoned". 
(emphasis added)

[17]	In Bhawis Pratap –v- Christian Mission Fellowship Civil Appeal No. ABU 0093/2005 (14 July 2006) the Court of Appeal at paragraph 9 of the judgment said:-

"We pause here to observe (not for the first time) that the practice of exchanging so called "minutes of a pre-trial conference" when no conference had in fact taken place and therefore no minutes had actually been taken is not compliance with the mandatory requirements of RHC O 34 rule 2. It is a practice which should be discontinued".
(emphasis added)

[18]	Our Court of Appeal in Lemeki Damu v East West South Pacific Ltd Civil Appeal No:ABU0076/2004, at page 3 para 8 of the judgment said:-

"8]. The so-called minutes of a pre-trial conference said to have been held on 10 July 2002 were wholly unsatisfactory. None of the matters set out in RHC O 34 was considered. Once again, the Court is moved to observe that circumvention or avoidance of the mandatory provisions of Order 34 cannot be condoned."
(emphasis added)

[19]	 Scott J in Viliame Namino v Attorney General Suva High Court Civil Action No: HBC 34/1995 (17th February, 2000) on pre-trial at page 5 had this to say:-

"The rules of the Court Summons for Directions and the Pre-trial are conference are all there to for a serious purpose which is to help secure a swift, efficient and just disposal of matters at issue. They are not mere formalities. "
(emphasis added)

[20]	Ord. 34, r. 2(2) clearly sets out a number of issues which the Counsel need to discuss. In summary it includes admissions of facts and documents, exchange of expert reports, documents, diagrams, photographs, models and similar articles to be used in the trial, quantum of damages etc. etc. 

[21] Ord. 34, r. 3 is mandatory. It expressly states that a solicitor who refuses to attend such a pre-trial conference may be forced to convene a pre-trial conference upon an application by the opposing party. It a timely reminder to solicitors that every application made in Court incurs expenditure. Obviously, it needs to be mentioned that non-compliance is a serious cause for concern. The Master of Rolls, Lord Woolf in The English Court of Appeal in Lownes v Babcock Power(1198) TLR 84 Ltd(8.2.98 ) at 85 on the issue of delay said:

"Inordinate and inexcusable delay in civil litigation caused by default on the part of solicitors was totally unacceptable. Prejudice to the client resulting from the striking out of his action had to be balanced against the prejudice to the other party, other litigants and the administration of justice in general."
(emphasis added)

His Lordship further said:-

"It was in the interests of solicitors to handle cases in the business-like way. Delay had an effect in extra work on the plaintiff’s solicitors, the defendants’ solicitors and client. Additional costs were incurred".
(emphasis added)

[22]	The reason I have made reference to a number of judicial commentaries on the pre-trial conferences is to restate its importance and more so that it must be undertaken with thoroughness. It is not merely a formal procedural step. Infact it is one single document which should disclose the entire case including the issues of facts and law.

[23]	 In addition to the judicial pronouncements the need for the pre-trial conference is also emphasised in the Rules. Pre-Trial conference minute is an essential document to be included in the Copy Pleadings, (O 34 rule 4(2)), which States:-

"2 The party taking out the summons shall file in the registry two certified true copies (which may be Photostat copies or copies made by a similar process) of the following documents, bound up in book form in chronological order:-

(a)	writ of summons

(b)	the pleadings…any request or order for further and better particulars and the particulars given;

(c)	the minutes of a pre-trial conference, if any, held under rule 2; and 

(d)	all orders made on a summons for direction."
(emphasis is mine)

Without the minutes the Copy Pleading will not be accepted for filing by the Registry and without a copy pleading no trial will be set down.

[24]	The importance of pre-trial conference can not be over-emphasised. At the hearing of the O 34 summons, (before the Registrar), now the Master enquires from the parties as to the prospects of settlement (O.34, r. 4(3)). I have to record that some solicitors question the authority of the Court, when they are asked the prospects of settlement. This is the rule under which the court exercises such a power. Where it appears to the parties that settlement is possible, the summons must be adjourned to allow the parties to settle; O. 34 rule 4(4), and if necessary for the Registrar or Master to facilitate settlement. Of course any settlement discussion will be futile unless the Counsel know the full brief. It is only possible to do that during the pre-trial conference and with comprehensive discovery.

[25]	With this, I refer to Order.25, "Summons for Directions". Often summons for direction and orders made thereto are taken very lightly by the parties. A summons for direction, after the completion of the pleading, is the first step towards trial preparation. During the hearing the Court is required to "consider all the matters"; O.25, r.2. This phrase "……imposes an independent duty upon the Court itself to consider all the matters required to be dealt with on the summons for direction, and at what stage to deal with such matters…….."see para 25/41/3B, P. 490 of The White Book". It is for this reason "…..the Court is entitled to and ought to receive the fullest assistance and cooperation of the parties……"; (see para 25/41 3B P. 490 of The White Book. This court is required to do, irrespective of the agreement of the parties. The Summons for Direction becomes a pivotal application to deal with all the interlocutory matters. In fact it is the summons which charts the flow of the case. A carefully obtained order will eliminate many minor but routine obstacles to the convening of the pre trial conference later. That takes me to the next question which is; what should a pre-trial conference minute contain?

Contents of Pre trial Conference Minutes

[26]	The matters which must be contained in a pre-trial conference minutes is provided in O. 34 Rule 2(4). 

[27]	In addition to the rules, how and what needs to be done in the whole process of a pre-trial conference is set out in Practice Direction No: 1/200. For the sake of completeness the Direction states:-

"Order 34 Pre-trial Conference and Setting Down for Trial

It is apparent that pre-trial conferences are not being carried out in accordance with the High Court Rules. The purpose and efficacy of holding such conferences, an important interlocutory step, is thereby lost.

The parties arrive at Court for the trial with many matters, which should have been agreed, not agreed. Facts, which on a realistic appraisal by Counsel are no longer in issue, have therefore still to unnecessarily. Documents or exhibits not to be challenged should also have been agreed, to avoid time-wasting proof.

Summonses for setting down for trial now go before a Judge [see Chief Registrar’s Practice Direction 27 July 1998].

The Judge will review the case position pursuant to powers provided under Ord. 34, Rule 2(6).

In particular the Judge will be inquiring of Counsel or litigants:

1.	Whether a Pre-trial conference has taken place and if it has been adequate. This means the judge will look into the question of whether the conference has been adequate also.

2.	Whether proper discovery has been given and complied.

3.	The possibility of further admissions, agreement on some evidence, which is not seriously challenged, and which could shorten the trial.

4.	The number of witnesses to be called.

5.	The names of witnesses.

6.	Whether there are any difficulties with the availability of witnesses, or difficulties of attendance.

7.	The length of trial – a re-examination of the earlier estimate, a more realistic estimation.

8.	The legal issues; and the desirability of and need for written submissions.

9.	Whether the trial is ready to proceed. 

Only when the trial judge is satisfied that the case is ready for trial in all these aspects, will a trial date be allocated.

If Counsel is unprepared, or unable to assist with these issues at the hearing of the summons to enter for trial, the judge may decline to hear Counsel, decline to enter for trial, or he may enter for trial (if there has been unnecessary delay by either or any litigant to the proceedings) and may consider this failure to comply with Ord. 34 when he comes to consider an order of costs at the end of the trial [Ord. 62, Rule 10]."

[28]	Now Order 34 is heard by the Master, who has the same powers as the judge to consider issues in dispute. Under the circumstances where solicitors for no good reason refrain from convening pre-trial conferences, they will find themselves paying indemnity costs and not the parties. This is because pre-trial conference under the rules is exclusively a matter for the counsel and not the parties. Order 34, Rule 2(1) provides that pre-trial conference is only necessary where "all the parties are represented by solicitors." Since parties are not directly involved it is only fair and just that they should not be burden with costs occasioned by their legal representatives. 

Agreed bundle of documents

[29]	Another matter closely related to pre-trial conference is the compiling of agreed bundle of documents. A similar problem is encountered to that of a pre-trial conference. The requirement of compiling documents for trial is nothing new. The guideline as to agreed bundle of documents was given before the coming in to force of the High Court Rule 1988. Practice Direction N0:3 of 1986, which was issued by the then Chief Registrar states:-

"I am directed to draw the attention of all legal practitioners to the following 
Procedures that is intended to take effect immediately in the Civil Jurisdiction of the [High Court].

1.	In civil actions it would be of great convenience and assistance to the trial Judge to have the opportunity before the trial to read the correspondence and other documents in the case including the reports of medical and other expects which have been agreed between the parties.

2.	Solicitors should agree upon the documents to be used as soon as possible after directions have been given. The documents should be bundled up and properly paged in chronological order and a copy made for the use of the trial Judge and lodge with the Chief Registrar not less than seven days before the date upon which the trial is set down for hearing.

3.	Any documents whose admission in evidence is contested may be excluded from the bundle, but a note as to the existence of such document should be made on the agreed bundle.

4.	If before or during a case a documents, not included in the agreed bundle, conies into the possession of the solicitor for any party, he should, if he intends to use it, inform his opponent in sufficient time to enable him to object to its use, and advise the Court of his intention in this regard."

This direction is still in extant. That is the basis under which direction is given by the Court for the compiling and filing of bundle of documents. 

[30]	The parties, usually the plaintiff, when compiling the documents may do so under the following sub-headings:-

(a)	"Agreed documents": 

This comprises of all documents which are not in dispute. Their admissibility is not in contention.

(b)	"Cross-examination Required"

These are class of documents for which admissibility is not opposed subject to the availability for cross-examination of the author or person in authority. Where a particular witness does not testify, those documents on application before the Judge during trial, may be expunged from the record.

[31]	Apart from the bound bundle of documents, are some documents the admissibility of which is seriously challenged. They must be tendered in Court through the normal process and rules of evidence.

[32]	When compiling documents, only documents relevant to and will actually be referred to in the trial by the parties adducing them be including in the bundle. All irrelevant document which have no evidential value as matter of general rule must be excluded. 

Consideration of this application

[33]	I have read the documents in this file. The affidavit filed for and on behalf of the plaintiff clearly stipulates that the plaintiff’s solicitors have tried their best to convene the pre-trial conference. In order to convene the pre-trial conference successfully and tactfully the solicitors on 29th March, 2007 made an offer for settlement of the case with the full particulars. In addition a medical report issued by the Colonial War Memorial Hospital dated the 7th February, 2007 has also been disclosed. On 7th May, 2007 the plaintiff’s solicitors wrote to the defendant’s solicitors. The details of the correspondence which has transpired between the Counsel is disclosed. When nothing transpired on 4th June, 2007, on 12th June, 2007 defendants’ solicitors responded by saying "we refer to your letter of even date and advise that the pre-trial conference minutes does not raise several issues and shall send you a draft minute for proposal". No such pre-trial conference minute was sent for perusal. 

[34]	On the hand the plaintiff solicitor prepared draft minutes which could easily have been the basis for a pre-trial conference. Having read all the documents in this file and the circumstances in which this pre-trial conference has been dragged, I find that the defendants solicitors are not pursuing this action with the speed and vigour with which the plaintiff had intended to proceed with the action. 

[35]	I will pause here to say that the plaintiff is only complying with the rules and is within the timeline prescribed by the rules. He is not doing anything which may abridge the time provided by the rules. The defendant’s solicitors have not reciprocated by responding to the letters send to them. Under the circumstances, I find that there is delay on the part of the defendants solicitors in convening the pre-trial conference.

[36]	In view of the finding which I have made, I will now order for the parties to convene pre-trial conference on or before 20 January, 2008, failing which parties to appear before me for a pre-trial conference.

[37]	This application would not have been necessary had the defendants solicitors co-orporated in this matter. Under the circumstances I will award a cost of $200.00 to the plaintiff’s Counsel. This cost is to be paid by the defendants’ solicitors personally. 

[38]	In this instance, I am not awarding indemnity costs, because of the general practice and procedure point taken by the plaintiff and defendant for which a decision as this is absolutely necessary. But in future the Counsel personally (and not the parties) will be liable for costs for failing to effectively participate or convene a conference. 

J. J. Udit
Master

19 December, 2008