Pre-Trial Case Management: Issues to be Tried and Agreed Facts (Part 2)

A. Introduction

This is Part 2 of the pre-trial case management series. We have previously written about the preparation of bundle of documents for trial.

This part will cover the preparation of issues to be tried and agreed facts.

B. Issues to be Tried

The filing of the issues to be tried is provided for under Order 34 rule 2(2)(j) of the Rules of Court 2012.

The issues to be tried should be confined to the four corners of the pleadings. Parties cannot include in the issues to be tried causes of action that were not pleaded.

The submissions by parties would then by confined by these issues to be tried. After the filing of the agreed issues to be tried, parties cannot detract from these issues and put forward a cause of action, defence or an argument which is not pleaded. The High Court in Lim Nyuk Foh v Datuk Zainal Abidin bin Haji Ahmad & Anor [2018] MLJU 800 held:

"Parties should confine their submissions based on the agreed issues to be tried, and not draft their own issues, for this will otherwise defeat the purpose of case management under Order 34 of the Rules of Court 2012".

The High Court further held that a decision based on an issue not pleaded would result in a breach of natural justice.

It is also common for parties to have separate issues to be tried when there are multiple defendants involved in a case. For example, when the plaintiff has distinct causes of action against the various defendants.

C. Agreed Facts

The filing of the agreed facts is provided for under Order 34 rule 2(2)(k) of the Rules of Court 2012.

The agreed facts generally contain assertions in pleadings that are agreed between parties. Just like the issues to be tried, it is also common for parties to have separate agreed facts when there are multiple defendants involved in a case. For example, a defendant would not want to agree to an assertion which only concerns the other defendants and one that does not relate to him.


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