AN ANALYSIS OF RECENT JUDICIAL DEVELOPMENTS IN SELECTED AREAS OF CIVIL PROCEDURE

• Citation: (1996) 8 SAcLJ 134
• Published date: 01 December 1996
• Date: 01 December 1996

The court’s involvement in the settlement process — New pleading rule in defamation proceedings alters position taken in recent case — Affidavit of the evidence in chief and oral evidence at trial — Determining whether a party has been surprised by the failure of his opponent to plead a material fact — Service on an agent or manager: the elements of Order 10, r 2 of the Rules of Court (1996) (RC) — Recovering the costs of bringing legal proceedings from the responsible party — The appropriate standard for setting aside a judgment in default — Failure to comply with the rules of discovery — Discovery beyond a preliminary issue — The right to conceal parts of a document on discovery — Representative proceedings pursuant to statute — Amendment pursuant to Order 20, rule 5(4) (RC) — Affidavits in interlocutory applications: source of information and belief— The scope of Order 29, rule 2(1) (RC) — Injunctions: application of American Cyanamid principles — Execution of the Anton Piller Order

THE COURT’S INVOLVEMENT IN THE SETTLEMENT PROCESS

The English Court of Appeal decision in In re R. (A Minor)1 raises important issues concerning the court’s role in promoting settlement. The father had sought a contact order in respect of his five-year-old daughter who was living with her mother. The mother opposed contact on the basis that it was not in the girl’s best interests at that stage. When counsel for the father had opened his case the assistant recorder said that the mother appeared to have no objection in principle to contact and suggested a trial period of supervised contact. The mother’s solicitor told the assistant recorder that she wished the case to be heard, following which the father gave evidence in chief and was cross-examined. The assistant recorder then commented that it was not acceptable for the mother to raise objections in principle and that if she continued to oppose the application she would seriously risk an inter partes costs order being made against her. Subsequently an interim contact order was made by consent. The mother argued before the Court of Appeal that the assistant recorder’s improper conduct of the trial had resulted in a settlement to which no true consent had been given, and that the order should be set aside. The Court of Appeal set aside the contact order and directed a re-hearing. Stuart-Smith LJ expressed the following principle in relation to the facts of the case:

A court, of course, always retains a discretion as to costs and undoubtedly can depart from the usual practice for good reason, but

the problems created here by the judge’s remarks are two-fold. First, in order to make such an order, he would have to conclude either that the mother was not acting bona fide or, at the very least, her opposition was unreasonable. There was no warrant for that view. Secondly, the mere warning or threat that there was a serious risk that she would be made to pay the costs might well lead the mother to conclude that the judge had already made up his mind that she was being unreasonable. I do not suppose the judge intended his remarks to be taken in that way, but I think that they could well have been misunderstood, and that is what the mother thought in this case. Indeed, she felt there was no point in going on. She was not going to win and she might well be penalised in costs if she lost. A judge may often have a laudable desire that the parties should resolve disputes, particularly family disputes, by agreement. I would not wish to say anything to discourage a court from doing so, but great care must be taken not to exert improper or undue pressure on a party to settle when he or she is unwilling to do so. In particular, the judge must take great care not to give the impression that he has decided the issue without hearing the evidence and argument upon it finally and for all time. In my judgment, in his commendable wish to try to avoid conflict between the parties here, the judge was in error in the two respects which I have indicated.2

The case reveals another concern which is of particular relevance to a dispute resolution process which culminates in a consent order. In the absence of an official record of the conduct of the proceedings in the court below, the Court of Appeal found it difficult to ascertain exactly what had transpired. It referred to three varying accounts of the events given by the assistant recorder and the solicitors for the parties. The Court of Appeal seemed to rely predominantly on the affidavit of one of the solicitors because of his considerable experience.3

There has yet to be a reported case involving a complaint concerning improper pressure by the court in the course of a settlement conference or dispute resolution process. Nevertheless, in the event that such a situation does arise, the availability of a verbatim record of the proceedings would greatly assist the reviewing court in determining whether the proceedings were properly conducted. A verbatim record would also ensure that judicial officers involved in dispute resolution are particularly conscious of their manner of approach towards the parties.

NEW PLEADING RULE IN DEFAMATION PROCEEDINGS ALTERS POSITION TAKEN IN RECENT CASE

In Lee Kuan Yew v Vinocur,4 the court, having surveyed the authorities on the subject, concluded that it was not necessary for the plaintiff to specifically plead the malicious attitude of the defendants and injury to the plaintiffs’ feelings for the purpose of claiming aggravated damages. The court justified this outcome as the plaintiffs’ pleas — that they had ‘been gravely injured in [their/his] character, credit and reputation’ and had been brought ‘into public scandal, odium and contempt’ — encompassed injury to feelings.5 The court accepted that damages for defamation would include aggravated damages which are the necessary and immediate consequence of the injury to their ‘character, credit and reputation,’ and their being brought into ‘public scandal, odium and contempt’.6 Furthermore, the court found that as the defendants had been aware of the plaintiffs’ intention to claim aggravated damages by reason of previous applications for summary judgment, they could not have been surprised or embarrassed by the omission to plead the specific facts which gave rise to these damages.7

The new rule 3(3A) of Order 78, which was introduced by the Rules of Court, 1996, requires the plaintiff to give full particulars in the statement of claim of the facts and matters on which he relies in support of his claim for damages, including details of any conduct by the defendant which it is alleged has increased the loss suffered, and of any loss which is peculiar to the plaintiff’s own circumstances.8 This provision extends to all damages claimed including aggravated damages, and therefore modifies the decision of the High Court in Lee Kuan Yew v Vinocur. The position under the new rule 3(3A) is that all circumstances giving rise to aggravated damages must be pleaded. Moreover, as this provision requires ‘…details of any conduct by the defendant which it is alleged has increased the loss suffered…’, malice, where it is the basis for a claim for aggravated damages, must be specifically pleaded. This would accord with Order 18, rule 12(1), which requires an allegation of malice, where it is a ground for a claim, to be pleaded in the statement of claim.9

AFFIDAVIT OF THE EVIDENCE IN CHIEF AND ORAL EVIDENCE AT THE TRIAL

The general rule is that the witness may not give evidence at the trial or hearing ‘the substance of which is not contained in his affidavit’.10Obviously, this provision does not extend to evidence concerning ‘matters which have arisen after the filing of the affidavit’.11 The court does have a general discretion in the interest of justice to allow the witness12 to give part or all of his evidence orally at the trial or hearing.13 In Lee Kuan Yew & Ors. v John Vinocur & Ors,14 which concerned a defamation action, the High Court ruled that as the plaintiffs merely wanted to amplify the evidence in their affidavits on the issue of malice and hurt to their feelings, such oral evidence would not contravene the general rule restricting the evidence at trial to the scope of the affidavit.15 Accordingly, the plaintiffs were allowed to testify.16 The court concluded that this decision would not conflict with the policy considerations behind the pre-trial disclosure of affidavit evidence; namely, the expeditious disposal of proceedings, the saving of costs and the elimination of surprise.

As yet it is unclear whether this decision will be limited to defamation suits involving similar issues. There may well be other circumstances in which amplification by a claimant (or even a non-claimant witness) of his affidavit evidence is justified on the same basis. For example, a claim for emotional harm may require oral evidence to express the intensity of the claimant’s reaction to the defendant’s wrongful act. However, there must be some limitation here if such licence is not to proliferate into a general practice which would offend the policy consideration of expeditiousness in the disposal of proceedings. If the right to amplify the evidence in the affidavit is generally permitted the time-saving advantage of this recently introduced procedure would be lost.

DETERMINING WHETHER A PARTY HAS BEEN SURPRISED BY THE FAILURE OF HIS OPPONENT TO PLEAD A MATERIAL FACT

No doubt, it is imperative that the court reaches its conclusion on the best evidence available. However, the courts must also observe the equally important procedural principle that the parties should be cognisant of all material matters to be raised at trial so that they are not misled, prejudiced, embarrassed or otherwise taken by surprise. In short, the parties’ right to

effectively present their cases must be carefully guarded. If this essential requirement of the adversarial process is ignored...