I set out the ten amendments to
the Rules of Court 2012 (ROC 2012) which comes
into force on 15 December 2020. Some of these changes include service of court
papers by electronic means, virtual hearings, and the restrictions on
adjournments of trials. There are also minor additions to the Rules of the
Court of Appeal 1994 (see the Rules of the Court of
Appeal (Amendment) 2020) and to the Rules of the Federal Court
1995 (see the Rules of the Federal
Court (Amendment) 2020).
#1: Service by Electronic Communication
Ordinarily, service of the originating process can be effected only by personal service or by prepaid AR registered post to the defendant’s last known address.
First, there will be an additional provision to allow by service “by means of electronic communication in accordance with any practice direction issued for that purpose” (as an addition to Order 10 rule 1(1) of the ROC 2012).
Second, there will be a corresponding addition to the service of documents by ordinary service in Order 62 rule 6(1)(cc) of the ROC 2012. The mode of service will also include by means of electronic communication.
We will have to wait for the Court’s practice direction to set out the procedure and safeguards to allow for service by electronic communication. How will the plaintiff or the defendant be certain that there has been proper service through email for instance?
I would also imagine that future contracts will start to include provisions for service of legal process through electronic communication. There will also be the designated email address for service of legal process
#2: Service of Court Documents by Electronic Filing System
The electronic filing system (EFS) is currently used for only electronically filing court documents. We have seen the EFS expanded to nearly every single tier of court and all throughout Malaysia.
The natural extension of the EFS is to allow for the service of court papers between the parties’ solicitors. Such electronic service through EFS would follow the Singapore model.
There will be a new rule 17 to Order 63A of the ROC 2012. Once the parties have solicitors on record, or that party is a registered user in EFS, the court documents can be served electronically between the registered users of EFS. The electronic transmission will be deemed personal service.
This is very much welcomed. There will be less need for process servers or clerk to physically serve documents within the deadline. Lawyers have to merely ensure that they have stable IT infrastructure for all the EFS filing and service. The EFS itself must always remain up and running.
Nonetheless, there will still be some forms of court documents that will require actual personal service. For instance, some Court Orders contain a penal notice warning the directors of a company of the need to comply. Those Court Orders would still have to be served physically on the directors.
#3: Virtual Court Hearings
In line with the amendments to the Courts of Judicature Act 1964, we see the new provisions in the ROC2012 to allow for virtual court hearings.
First, the new Order 33A of the ROC2012 sets out proceedings through remote communication technology. ‘Remote communication technology’ is inserted as a new defined term in Order 1 rule 4 of the ROC2012.
The new Order 33A essentially allows for:
- Subject to the Court’s practice direction, the Court or Registrar may direct any matter to be heard or conducted through remote communication technology. Court may exercise this on its own motion or upon any party’s application (Order 33A rule 2).
- Attendance of person, witness or prisoner by way of remote communication technology. Sufficient administrative and technical facilities and arrangements must be made at the place where evidence is given (Order 33A rule 3).
- The virtual hearing may be broadcasted to allow the public to see and hear proceedings (Order 33A rule 5).
Second, the pronouncement of every judgment or order of the Court can be carried out through remote communication technology – Order 42 rule 1(5). This fact shall be reflected in the judgment or order – Order 42 rule 5(3).
Separately, the Rules of the Court of Appeal 1994 will have a new Rule 95A to allow for proceedings by way of remote communication technology.
At the Federal Court, the Rules of the Federal Court 1995 will also have a new Rule 127A for proceedings by way of remote communication technology.
In addition, there is a new Rule 107(5) for applications for leave to appeal. The Court may allow the parties to submit and reply orally according to an allocated time as may be specified in the practice direction.
This provision codifies the ability for the Federal Court to limit the time to orally submit. Presently, the time limit is 20 minutes per party when submissions are made in person in open court. There is no time limit if submissions are made through a virtual hearing.
#4: Emphasis on Mediation
Order 34 of the ROC2012 covers pre-trial case management directions. There will now be a greater emphasis on mediation.
First, the new Order 34 rule 2(1A): If a High Court Judge identifies that an issue arising in the action or proceedings can be resolved by way of mediation, the Judge may refer the parties to mediation as prescribed by practice directions issued from time to time.
Second, the new Order 34 rule 2(1B): all running down cases shall be subject to mediation.
#5: Three Adjournments
There is the tightening up of adjournments of pre-trial case management and of trials.
First, for pre-trial case management sessions, a pre-trial case management may be adjourned not more than three times. This is unless the circumstances otherwise require. See the new Order 34 rule 5.
Second, a Judge may, if he thinks it is expedient in the interest of justice, adjourn a trial not more than three times. This is unless the circumstances otherwise require. See the new Order 35 rule 3.
It is not clear what will entail adjourning a trial not more than three times. It would appear that it is not restricted to merely the start of a trial being adjourned. Some trial proceedings may last for many days and many weeks. What if there is a need to adjourn one or two days out of a stretch of 50 days of trial?
#6: Notice of Appeal to High Court against Any Decision Other After Trial
A minor amendment to Order 55 rule 5(2) of the ROC 2012. This provision is for an appeal to the High Court from any decision other than a decision made after trial by the Subordinate Court. The amendment makes the clarification that the notice of appeal shall be served within the time limited for the filing of appeal.
#7: Service of Foreign Process in Malaysia
A minor addition for service of a foreign legal process in Malaysia under Order 65 rule 2 of the ROC 2012.
Order 65 rule 2(1) and (2) allow for the foreign tribunal to send a letter of request for service to the Minister.
The new Order 65 rule 2(2A) sets out that if the Minister considers that the letter of request is non-compliant, the Minister will inform the requesting foreign court or tribunal.
#8: Admiralty Proceedings – Service
This addition is specific to admiralty proceedings under Order 70 of the ROC 2012.
The new Order 70 rule 10(1A) allows for the Court, in exceptional circumstances, to direct service of the writ in an action in rem or a warrant of arrest by affixing and followed immediately by an electronic communication.
#9: General Practice Directions
The Chief Justice will have wider powers to issue practice directions. This is provided in the amended Order 92 rule 3B of the ROC2012.
These will be practice directions necessary for the better carrying out of the ROC2012 or if the Chief Justice is of the opinion that the circumstances warrant that it is necessary in the interest of the dispensation of justice, public safety, public security, public health or proprietary or for other sufficient reason to do so.
This new provision will future proof practice directions in case of some future pandemic or other public security situation
#10: Small Claims Procedure
There is some slight tidying up of the small claims procedure in Order 93 of the ROC2012.
In particular, the amended Order 93 rule 1(2) defines who is an ‘authorized person’ for the purposes of Order 93.