To Members and Pupils in Chambers,
RE: MEETING WITH DATO PENGARAH LOWER COURTS IPOH TO DISCUSS ISSUES RAISED BY THE LAWYERS IN RESPECT OF CIVIL LAW PRACTICE
We refer to the above matter.
The Perak Bar Committee had a meeting with the Pengarah of the Lower Courts and some of its officers on 6.8.2024 and a follow up meeting on 24.9.2024 to address some of the issues / complaints raised by our members which the Perak Bar collated and submitted for discussion by letter dated 7.5.2024.
In the said meeting both sides raised issues of common interest to ensure that the proceedings in the Lower Courts proceeded smoothly and in compliance with the law. Herein below, we set out the issues raised and the consensus reached. As some matters bordered on judicial discretion during trial or hearing, we could only highlight the issues raised and requested that some flexibility be exercised by the judicial officers.
There was a requirement that the first page of the bank statements submitted with the application for refund of deposits must be CTC by the bank where the firm operates its account. This requirement was purportedly based on a direction from the Chief Justice’s Office dated 11.4.2023 and was particularly a requirement in matters relating to writs of seizure and sale. Although, we have issued a circular that pursuant to the Bar Council meeting with the Chief Justice, the Chief Justice has informed has that no such directive was given by the Chief Justice’s Office and that the first page of the bank statement need only be CTC by the Solicitor concerned. Despite our circular, the issue persisted as we continued to receive complaints from the members that the bank statement still needed to be CTC by the bank. We then wrote to the Chief Registrar to clarify the matter. The problem was in Borang Permohonan Bayaran Balik Deposit (Borang CPK 11) as there was the requirement that the bank statement be CTC by the bank or the courts. We highlighted the problem to the Chief Registrar and in response in the newly issued Borang CPK 11 (copy enclosed) the requirement for the CTC by the bank has been deleted and the following addition is made, that is, Reminder, “Semua salinan dokumen bukan asal perlu disahkan sekurang – kurangnya oleh kumpulan sokongan gred 29 dan keatas dengan perakuan sebagai “SALINAN BENAR DARIPADA YANG ASAL”. As regards the requirement under “Reminder” henceforth a requesting for refund must enclose a copy of the first page of the bank statement and ONLY state in the covering letter that it is a true copy of the first page of the firm’s bank statement and the CTC will be done by the authorized court officer on the bank statement. There is no requirement for the Solicitor to CTC the bank statement. We hope with this the issue is deemed resolved.
There were complaints that in some cases there was undue delay in refund of deposits by the court. A case in point was No. AA-76J-358-09/2019. The complaint was taken cognizance off and the case in point has been resolved. According to the court the delay in refund is usually due to the lack of compliance with requirements in Borang CPK 11 and if the documents are in order the refund will be done within 2 weeks to 1 month. Our advise to Solicitors is comply with the requirements as set out in Borang CPK 11.
Under the existing electronic filing system (EFS) only one original receipt is issued at the point of payment. It is a treasury requirement that the original receipt must be enclosed because any further receipt generated in the EFS is only a copy. Therefore, we urge members to please comply with this requirement.
2) No execution / auction during the fasting month
We received complaints that executions as well as auctions were not carried out in cases of Writ of Seizure & Sale during the fasting month in Ipoh although they were carried out in other courts in Perak. We raised this matter and we were assured it will not happen.
3) Delay in fixing of first execution date in matters under Ipoh Sessions Court
It was brought to our attention that it takes 4 months to get the first execution date for Ipoh Sessions Court matters whereas the it only takes 1 month for the Ipoh Magistrate Court matters. This matter has been sorted out whereby the officers in charge of execution proceedings have been directed to give equal importance to executions proceedings from the Sessions as well as the Magistrates Court.
4) Issuance of Certificate of Non – Apperance (CNA)
A complaint was received that in Tapah Magistrate Court, Kuala Kangsar Magistrate Court and one Registrar in Ipoh High Court have rejected the CNA which were filed after the lapse of 14 days from the date of service the Writ and instead Solicitors were instructed to wait for the first mention date before filing in the CAN. This ran contrary to Order 13 Rule 1 of the Rules of Court. We were informed that the matter has been sorted out.
5) Inappropriate language by judicial officers
We highlighted that there was a complaint that inappropriate court language was used by judicial officers in the performance of their duty especially when addressing counsel such as “KAMU.” Assurance was given that the necessary step will be taken to curb this.
6) Filing of Statement Agreed Facts and of Issues to be Tried – Plaintiff’s and Defendant’s Version
Some Solicitors are Filing Statement Agreed Facts and of Issues to be Tried – Plaintiff’s and Defendant’s Version. Filing of these two documents are provided under Order 34 Rule 2 (j) and (k) ROC. Although filing of such documents as Plaintiff’s and Defendant’s does not accord with the meaning “Agreed” and does not fulfil its purpose the EFS does not reject such filing. The Pengarah Lower Court agreed that there cannot be two versions of Statement Agreed Facts and of Issues to be Tried. However, as this falls within the jurisdiction of the judicial officer handling the case the Solicitors are urged to take this matter up with the Presiding Judicial Officer to reject or ignore the same if it did not accord with the intended purpose of narrowing down issues. At the same time the PBC urges Solicitors to file only one Statement Agreed Facts and of Issues to be Tried and in the event no agreement can be reached request the Court to exclude filing of such documents or file one with the endorsement “NIL”.
7) Witness Statements
In some courts, the Presiding Officers have instructed Counsel and Witness to read the Witness Statement question by question and answer by answer before marking the Witness Statement. Although this matter comes within the purview of judicial function, the Pengarah was of the view that such necessity does not exist as the Witness is only required to affirm that it is his Witness Statement as regards the issue to tried and that the answers are true to his knowledge, belief and understanding and that he does not intend to make any amendments to the answers. Thereafter, the Witness Statement should be marked to save time. However, the Pengarah said he will look into the matter.
In some courts directive was given that the Witness Statements must be filed before the matter is fixed for hearing and this posed a problem as some witnesses are only available near the hearing dates or only available on the date of hearing. We brought up this issue and the Pengarah said the matter has been resolved. If possible, file the Witness Statements at least 1 to 2 weeks before the hearing date.
8) Conduct of Matters on Hearing Date
In some courts on the date fixed for hearing of the matter counsels are either compelled to settle the matter or to proceed and close the case on the same day even though all witnesses are not available. As a last resort counsels are compelled to withdraw their case with liberty to file afresh. The Pengarah although of the view that this issue fell within the scope of judicial function opined that it is not right and will take up the matter with the relevant Judges/Magistrate.
9) Fixing of hearing dates
The issue of some judicial officer compelling counsels to accept hearing dates which are not suitable was raised. The Pengarah agreed that hearing dates must be fixed according to the free dates of the parties and will take up the matter with his judicial officers.
10) Filing of Orders for Notice of Application
The concern was raised about orders emanating from Notice of Applications heard via zoom / E-review which are heard in chambers but recorded as open court whereby the payment for the order escalates from RM80.00 to RM200.00. This inconsistency means higher disbursement for clients. The Pengarah agreed that he will have a meeting with the judicial officers to address the uncertainty as regards this issue.
11) Indiscriminate postponement of matter fixed for hearing by court
The above issue was raised and the matter has been resolved.
12) Postponement of matter fixed for hearing without prior notice to the Solicitors
The above issue was raised and the matter has been resolved.
We hope the above resolves some of the issues raised. However, in the event the matters resolved crops up please don’t hesitate to contact the Perak Bar with details of the matter in question.
Download FORM-CPK11 Here
Regards.
S.V.NAMASOO
Chairman
Courts Liaison & Civil Practice
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