surprise, but they have a very limited effect. Pleading being delivered at an early stage of the action when the facts may be imperfectly known, the object of the pleader is to put his case with sufficient vagueness and with such suitable alternatives that however the facts turn out his client will not be hampered. Consequently most pleadings contain many allegations of fact which are untrue or impossible to prove. At the trial a great part of these allegations is thrown overboard, but the opponent cannot risk being unprepared to meet them. The Court has, of course, power to order a party who has abandoned at the trial "matters alleged in his pleadings to bear his opponent's costs of meeting those allegations whatever the result of the action. Theoretically this should be a corrective, but it has not so proved in practice. Detailed special orders as to costs are rarely made "."

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48. The causes that have contributed to the length and expense of trials seem to be the same in England and in Ceylon. In England an attempt has been made to "alleviate the defects" and shorten and simplify trials by a procedure known as Summons for Directions. This procedure is intended to provide an opportunity for a "general stock-taking of the case with the object of arriving at the essentials of the dispute by arranging for proof of necessary facts in the shortest and cheapest manner". While this procedure has provided some measure of relief and improvement, experience has shown that it is by no means perfect and that many improvements are necessary. It is, however, a reliable basis for approaching our own problem. Procedure similar to this is also found in the United States of America, in Canada, and in Australia. It may be useful to examine briefly the provisions in these countries to be able to take some advantage, if possible, of what has been found to be beneficial elsewhere, only "to the extent that our own conditions make it likely that we shall here derive a corresponding advantage".

49. In the United States the advantages of some kind of proceedings to eliminate delays at the trial stage were recognized over twenty years ago. The purpose of such proceedings is "to simplify the issues, to obtain admissions and stipulations in order to avoid unnecessary proof, to discuss limitations of the number of expert witnesses, and to explore the possibility of compromise, adjustment or settlement". In 1938 the American Bar Association adopted the following recommendation :

"That Courts in the metropolitan areas should make provision for pre-trial hearings and other courts should give consideration to the procedure with a view of adopting it if justified by local conditions".

The special pre-trial procedure in America which has been described as the most revolutionary innovation of the century in civil procedure" has in main the same object in view as the English Summons for Directions. Rule 16 of the Rules of Civil Procedure for the District Courts of the United States contains the relevant provisions for pre-trial procedure. Its terms are as follows:

“Rule 16. Pre-trial Procedure. Formulating Issues:

In any action, the Court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider

(1) the simplification of the issues;

(2) the necessity or desirability of amendments to the pleadings;

(3) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(1) Ibid paragraph 227.

(4) the limitation of the number of expert witnesses;

(5) the advisability of a preliminary reference of issues to a Master for findings to be used as evidence when the trial is to be by jury;

(6) such other matters as may aid in the disposition of the action."

The Court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injus.ice. The Court in its discretion may establish by rule a pre-trial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all actions."

The benefits of pre-trial procedure have been described by the American Bar Association in the following words :

"The beneficial results of pre-trial procedure are many. As noted, a larger percentage of cases are settled or dismissed and so never come up for trial. Some of these might be dismissed or settled on the eve of trial without a pre-trial hearing, but while this saves trial time it involves a disruption of calendars. In the cases which are tried, much time and expense is saved through the elimination of spurious issues, simplification of methods of proof and elimination of "surprise at the trial.

"Pre-trial procedure is, of course, not a mechanical device that will run itself. Its success, more than that of most procedural mechanisms, depends on the attitude of the pre-trial judge, and of the bar. "Hard work and unflagging interest by the pre-trial judge are indispensable. He must never permit the pre-trial hearing to degenerate into merely routine procedure to be disposed of with the least possible expenditure of time. Extra time spent at the pre-trial hearing may save hours of trial, particularly so if a compromise can be effected. While in some instances there may be an apparent loss of time, it will be found that vast savings can be effected for the calendar as a whole by allowing opportunity for a full and fair presentation of the case at pre-trial. This presupposes, however, patient and earnest application by the pretrial judge."

50. In many provinces of the Dominion of Canada also there is a comparable procedure which "serves a definitely useful purpose, not only in procuring admission of documents and otherwise 'clearing the decks' but also in producing large numbers of settlements before trial". This procedure, however, does not provide opportunities for defining issues and for discovery. In the State of South Australia there is a procedure known as the Summons for Immediate Relief". On the hearing of every such summons the Court exercises its power " with a view to defining the issues really in controversy between the parties and to expediting and facilitating the trial thereof ". In these proceedings the Court has power

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(a) to call upon either party to prove by affidavit or otherwise such matters as the Court thinks proper;

(b) to direct any party or person to attend and to be examined or cross-examined on oath or otherwise or to produce any documents or class of documents for inspection;

(c) to modify the practice prescribed by the Rules of Court.

51. In India too there is procedure somewhat similar, which has existed from 1882 (Vide Orders X, XIV and XV of the Code of 1908). This procedure has probably not all the advantages of either the English or the American procedure. In the light of the information we gathered by examining the procedure existing in the countries we have just referred to, we questioned the witnesses who appeared before us on the desirability of introducing some similar procedure in Ceylon specially designed to suit our needs. Almost all the witnesses who appeared before us, and in particular the representatives of the Ceylon Judicial Service Association, favoured some procedure which would tend to shorten and cheapen the actual trial. The Law Society of Ceylon was not altogether in favour of this procedure, not because they did not accept its utility but because they feared such proceedings might tend in certain types of cases to result in the duplication of the trial. We have given due consideration to the evidence we heard on this point. We have also borne in mind the fact that the framers of our present Code did not think it expedient to incorporate the provisions of the Indian Code of 1882 on this point. The reasons for their unwillingness to adopt the provisions in the Indian Code of 1882 in regard to the settlement of issue, etc., were stated thus:

“In India, such settlement is effected at the 'first hearing'; under the Ceylon Code, it will take place at the trial. The delay and expense inseparable from two separate hearings' will thus be avoided, and so will the risk of evidence being concocted to suit issues settled weeks and perhaps months previously. Moreover, in Ceylon the number of our Judges and Commissioners is comparatively limited, and as they have to do both civil and criminal work, it is obviously impossible that they "can afford the time necessary for two 'hearings' in the same case; and to insist upon such a procedure would involve suitors in vexatious delays and put them to the expense of making two journeys from their homes to the court-house (in some cases far distant) where one would suffice."

It will be conceded that some of the fears expressed in the above passage in regard to the availability of Judges cannot worry us now. But there does seem to be some substance in the fear about two 'hearings' at least in certain types of cases.

52. It has been stated that a circumstance that makes this procedure "relatively inexpensive and successful" in the United States and in the Dominion of Canada is the fusion of the branches of the profession. In England it has been apprehended this procedure may turn out to be "disproportionately expensive". The same consideration will apply to conditions in Ceylon. This is a danger we realize should be avoided, because the resulting situation may turn out to be worse than the existing one. It is, however, conceded on all sides that the procedure has manifest advantages provided adequate safeguards exist to eliminate expense. We also realize that in the smaller type of cases the advantages of judicial intervention at a stage prior to trial are not substantial. We are satisfied that we should not make this procedure apply to all cases as in England, the United States, and in the Dominion of Canada. We have made the procedure optional leaving it to the parties to adopt it where they find it useful; we have reserved to the Court the power to make it obligatory in any particular case where it considers such a course necessary for the efficient disposal of the case; we have also vested in the Court power to decide whether this procedure should be followed in any particular case where the parties are at variance on this point. We have called this procedure "Preliminary Investigation ", as it is really an investigation (1) Report of the Attorney-General on the draft Code of 1889.

to ascertain the real points at issue between the parties, to eliminate unnecessary proof, to secure admissions wherever possible, and to explore the possibilities of a settlement. This procedure seeks to incorporate the beneficial features of the English Summons for Directions, the American Pre-trial Procedure, and the Indian First Hearing for the settlement of issues, while it endeavours to keep clear of those provisions contained in the procedure of those countries which experience has shown are likely to be disadvantageous.

53. In regard to actions governed by the Old Procedure a special date is given to enable parties to decide whether a preliminary investigation is at all necessary; on that day the parties will indicate their views to Court which has, however, the discretion to super-impose its will if it considers a pre-trial investigation at all necessary. As this is a special date after the close of pleadings, parties will be able to inform the Court, where preliminary investigation is found to be unnecessary, how long a case is likely to last. The Court can then fix the trial with some real knowledge of the time the case is likely to take. In actions governed by the new procedure after the close of pleadings provision is made for application to be made to fix a date for preliminary investigation; provision is also made for objecting parties to have their objections recorded and for the Court to exercise its discretion either to allow or disallow a preliminary investigation. We have deliberately departed from the English practice in regard to the stage at which preliminary investigation is held. According to the English practice, the Summons for Directions follows the close of pleadings. We are clearly of the view that in cases where preliminary investigation is necessary, no appreciable advantage can be derived from this procedure unless parties have some knowledge not only of each others' documents but also have in their possession information of all important matters necessary for the proper understanding of the points of dispute whether obtained by interrogatories or otherwise. To achieve this end we have provided that the discovery and inspection and admission of documents should precede the stage of preliminary investigation. This incidentally gives the parties themselves full opportunities to direct the case along channels they may choose; and at the stage of investigation the Court is given the power to give directions to parties for the purpose of securing efficiency and expedition. We are convinced that there can be no really effective 'stock-taking' unless the investigating Judge has before him and the parties have with them all the material likely to be available at the trial. We are glad to note that the Evershed Committee in England has come to the same conclusion on this matter. It has found that "the general opinion is that this step in the action, if it is to be useful, should be at a later rather than an earlier stage and this is in accordance with modern development". Accordingly, this Committee has recommended that the Summons for Directions should be postponed "until after discovery has been completed, discovery having become,.... a matter normally carried out automatically by the parties and without the intervention of Court". At this investigation the Court is invested with wide powers to confer and discuss with the parties or their Proctors and question them or call upon them to state their respective cases and to direct the production of documents for its inspection or the inspection of any of the parties, with a view to consider

(a) the simplification of issues;

(b) the necessity or desirability of amendment to the pleadings;

(c) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(d) the desirability of consolidating two or more pending actions.

(1) Cmd. 8878, paragraphs 60, 105, 134, 212-214 and 240.

For this purpose the Court is empowered to order the amendment of pleadings, discovery and inspection of documents, interrogatories, examination of accounts, or inspection of movable and immovable property. The Court is also required to keep a record of (a) admissions by parties of facts or documents; (b) agreements of parties in regard to (i) the mode of proof of any fact or document, (ii) experts; and (c) consent of parties either wholly excluding the right of appeal or limiting it to questions of law only. To enable the Court to settle the issues correctly the Court is permitted to examine any person or have any document produced before it. To ensure the effectiveness of these proceedings and to prevent the re-canvassing of matters properly dealt with at this stage, provision is made that all orders of Court, and all matters entered of record by consent of parties, shall control the subsequent course of the action unless modified at the trial to prevent manifest injustice. This provision is important as it does not permit a party to go back on the proceedings; otherwise these proceedings will have no value or usefulness; it is, however, possible for the Judge to interfere where there is any real hardship or injustice. Provision is also made to facilitate proof by relaxing the rigours of proof normally required. Suffi-cient discretion is vested in the Court to order evidence to be tendered by affidavit, the existing absolute right to cross-examine the deponent to be called only when he considers it necessary; evidence of any particular fact may also be permitted to be given at the trial by statement on oath of information and belief, or by the production of documents or entries or otherwise as the Court may direct.

54. We have reserved to the Court power to examine any person where it finds that the issues in case cannot be correctly framed without such examination. We have also provided that

(1) Where a Court is of opinion that cases may be disposed of on the issues of law only, it may set down such issues of law for trial first.

(2) Where on the issues being framed a Court is satisfied that no further argument or evidence than the parties can at once adduce is required, it may, where no injustice will result, with the consent of parties proceed to decide the issues at once without fixing the case for trial.

These two provisions will suit conditions prevailing here and will result in the saving of time and expense.

55. We have departed from the English practice on another matter of some importance. We are of the defini'e view that preliminary investigation is almost as important a judicial function as the trial, and that it should therefore be conducted by the Judge, preferably by the trial Judge. In England, Summons for Directions is taken by the Master; but it is conceded that there will be a considerable advantage if this summons could be taken before the Judge who would ultimately hear the case. It was pointed out by Mr. Justice Horridge and other Judges who appeared before the Royal Commission on the Despatch of Business at Common Law that "the Judge who is to try the case is able to "influence the parties to act reasonably in the matter of admissions, modes of proof and the like, and undoubtedly the taking of summons by the Judge in the New Procedure list has tended to create a standard of reasonableness in 'running down' cases with the effect of considerably shortening the proceedings ". This Commission favoured Masters taking it only because they feared "a very heavy demand on judicial time". The Evershed Committee also appreciated the value and importance of a Judge taking the summons for directions. It has stated as follows:

"It would no doubt be better if the summons could be heard by a Judge, better stili, by the judge who was later to try the case. As things are this idea seems impossible.