Appreciating the essence of pre-trial conference

 

Trust Maanda
Legal Position

 

AS a way of curtailing court proceedings in a civil matter, there is a procedure in terms of the court rules, both in the Magistrates and High Courts, called pre-trial conference.

 

The process is essentially the same in both courts, and is meant to achieve the same purpose, with some variations between the rules of both courts.

The purpose of the pre-trial conference is to attempt to reach a settlement between the parties, and, where this is not possible, to identify issues for trial with a view to curtailing the proceedings.

The presence of both the parties and their legal practitioners, where parties are represented is required thereat.

 

The pre-trial conference is not a formality. It is an essential part of the court proceedings.

 

A party that does not turn up for a pre-trial conference on the day it is to be held will have judgment entered against him or her in his or her absence.

 

The judge would have put aside other work and studied the pleadings in order to prepare for the conference. Parties therefore have to attend a pre-trial conference.

A pre-trial conference is held when the necessary legal documents, known as pleadings, in legal language, are filed.

This filing of all the necessary documents is referred to as the closing of pleadings.

This means that all the papers relating to the assertions of the claim or defence would have been filed.

 

What will be left after the closing of pleadings is for the parties to attend a pre-trial conference before the judge or magistrate, whatever the case might be.

When pleadings are closed, a party who wishes to have the action brought to trial shall request the other parties to the action to attend a pre-trial conference at a mutually convenient time.

A pre-trial conference is a meeting between the presiding judge and attorneys to evaluate the parties’ claims and defences.

In the High Court, at a pre-trial conference, the parties shall attempt to reach an agreement on possible ways of expediting or curtailing the duration of the trial and on a list of matters.

They may reach an agreement on the obtaining of admissions of fact and of documents and the holding of any inspection or examination, the exchange of reports of experts; the giving of further particulars reasonably required for the purposes of trial.

It is at that conference that the parties define the real issues and the manner in which any particular issue may be proved.

 

They agree on who has the onus to prove what issue, that is germane to the determination of their dispute.

 

The parties will agree on an estimation of the probable duration of the trial; and prepare correspondence and other documents and to be handed in at the trial in the form of a paged bundle with copies for the court and all parties; and if it is practicable to do so, the parties shall attempt to reach a settlement of all or any of the matters in dispute.

Before a pre-trial conference is held, the parties must file a summary of evidence that they shall give ins support7 of their claim or defence.

A pre-trial conference is not just a process that the parties engage in for its sake.

 

It is a process where the parties must be serious in seeking a resolution to their case without proceeding to trial.

 

Where parties do not settle, they then should identify issues that should be referred for resolution at trial.

 

These are what are called triable issues.

The application for a pre-trial conference before a judge shall be accompanied by that party’s proposed pre-trial conference minute and summary of evidence all of which shall be served as soon as possible after filing upon all the other parties to the action.

Pre-trial conference is an attempt for the parties to find each other.

 

The judge actively engages the parties in order for them to agree on issues that are resolvable and reserve for trial only cases where there are triable issues which need evidence to be led on them at a full trial.

Where the parties agree, the judge shall record any decisions taken at the pre-trial conference and any agreements reached by the parties as to the matters considered; and make an order limiting the issues for trial to those not disposed of by admission or agreement.

Pre-trial conference is a very vital process in the resolution of disputes, which if the parties seriously approach, will have their differences resolved.

 

If the parties agree, an order by consent will be issued, thereby avoiding further delays and the costs of litigation.

 

This a process by which proceedings can be curtailed.

Trust Maands is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.