"It would no doubt be advantageous if the influence and persuasion of a Judge could be brought to bear on the parties so as to secure on the hearing of the summons for directions the robust exercise of the Court's power which we have advocated-and it would be still more advantageous if the summons could be heard by the Judge who is to try the action. But it is clear to us that the pressure on judicial time....makes it....impracticable." 1.

1

In America it was felt that the "pre-trial conference should be conducted by the judge rather than by a Master or subordinate official". Experience there appears to have shown that even in rural districts pre-trial conferences have been successfully employed "where the same judge has sat at the trial". In India the first hearing for the settlement of issues and the trial are before the same Judge.

56. In Ceylon, the Judicial Commission of 1936 which recommended there should be a special date for the settlement of issues, did not favour the disposal of this matter by a Master as it expressed the view that "the Judge settling the issues should be the same Judge who would thereafter try the case". The evidence before us was almost unanimous that the pre-trial investigation should be conducted by the trial judge. We have ourselves not recommended the appointment of Masters for reasons set out in Part II of our Report In our view, the nature and character of the preliminary investigation demands that it should be conducted by the Judge, and preferably the trial judge. It should be conducted informally in the presence of Proctors, Counsel and the parties. The procedure we have devised is new, but admittedly necessary. It is not a mere adoption of the particular procedure of any one country. It seeks to incorporate all the advantageous features contained in the procedure followed in progressive countries. We have also kept in constant view the special needs and requirements of our country. The real solution to the problem of avoiding lengthy trials lies principally in limiting" as much as possible the issues that have to be tried and (consequently) the number of witnesses and the amount of other material to be tendered at the trial". There can be no doubt that "the most effective way of saving costs is to limit and confine, at a stage as early as possible, the issues that have to be tried and therefore the fac's that have to be proved at the trial....the narrowing of the battle area is the prime necessity". The procedure for preliminary investigation is an attempt to provide a simple machinery to achieve this end. Some critics have been quite pessimistic about its chances of success. Our attention has been drawn to existing provisions in regard to discovery, inspection, interrogatories, admission of documents, etc., which are so seldom used. We realise that there is always "the risk that the conservatism natural to professional men" may tend to work against the success of the scheme. Our traditional methods and professional habits will have to be altered. Under the existing system, "although each party must disclose to the other the substance of the case to be met, the marshalling by each side of his forces for the day of trial is done "behind a screen which the other party may not penetrate....the object of procedure before trial is to secure that the parties are 'lined up fair-no advantage to the one side or the other-for the day of trial by a Judge who knows not only nothing whatever of the case, but whose duty it is to disclose a passive impartiality throughout the hearing." We recommend, and in this respect we are in the company of the Evershed Committee, both a "new approach and a "change of heart" in regard to this matter. It will be necessary for the judge to take a dominant and active part in these proceedings by a "robust application" of the various rules which have been devised for limiting issues and the evidence at the trial. The judge "should intervene actively and should use his influence on the parties to be reasonable and (1) Cmd. 8878 (1953), paragraphs 61 and 240.

accommodating"; he should endeavour to require the parties "to admit all facts not really disputed and to abandon any allegations they had no expectation of proving "; he should also consider applications to prove facts other than by oral testimony. The co-operation of the legal profession is essential. Lawyers must prepare their cases thoroughly, they must consult with their clients beforehand regarding the possibility of settlement and they must be willing to submit to the Court a fair statement of the facts and points of law and make available the documents and exhibits to be offered at the trial. Experience has shown, however, that "once lawyers are convinced that the pre-trial hearing is not an empty form, having for its sole result an expenditure of time in attending the hearing and in travelling to and from the Courthouse, but will result in the working out of the real issues, the saving of time at the trial, the disposing of claims and defences improvidently brought and improperly maintained, and in an opportunity with fair chance of success for compromise, the continued co-operation and interest of the Bar will be assured and the proceedings will come to be praised by everyone concerned ".

57. We are convinced that the procedure we have devised will, with the aid of Judges, Counsel and legal practitioners, "divest litigation of traditional characteristics which are expensive to litigants". This procedure will, apart from eliminating surprise at the trial stage, result in shortening and cheapening trials.

CHAPTER VII-LISTING, DISCOVERY AND INSPECTION OF

DOCUMENTS

58. Under our present Code a plaintiff who sues on a document is required to produce it in Court along with the plaint (section 50); if he relies on other documents as evidence in support of his claim he is required to file a list of such documents at the time that plaint is filed. There is no requirement that the defendant should file a list of his documents at any time, though the special procedure for actions in the Courts of Requests puts the plaintiff and defendant in the same position (section 820 (2)). The Judicial Commission of 1936 commented on the absence of any provision to compel the defendant to file his documents or a list of them with his answer. In India too the position was the same as in Ceylon but quite recently some of the High Courts have enacted rules putting the defendant in the same position as the plaintiff. It is, we think, necessary to require the plaintiff who sues on a document to produce it when he files a plaint, but in regard to all other documents we can see no reason why both parties should not be placed on the same footing. It is not fair to require the plaintiff to disclose the documents on which he relies in support of his case as the defendant may thereby secure an advantage over the plaintiff. Evidence was given before us that the present procedure places the defendant in an advantageous position and even enables some defendants to "trim" their cases to meet the documentary position disclosed by the plaintiff. The judicial Commission of 1936 also recognized this when it stated:

"The Code should be altered by inserting a section putting the defendant on the same footing as the plaintiff in regard to the list of documents on which he relies. But we think that the time for listing documents on which parties rely might be altered and that they should not be required to list them until after the pleadings....

We have accordingly provided that ten days before the day fixed for preliminary investigation, or where no preliminary investigation has been

(1) Sessional Paper VI of 1936, paragraph 62.

ordered, before the trial, every party to the action who relies on any documents in support of his claim or defence should file a list of documents. This provision will not apply to documents produced only for purposes of cross-examination, or handed to a witness to refresh his memory. Where there is a preliminary investigation, parties will attend it with a full knowledge of the documents on which reliance is placed in the case; the Judge and parties will know both from the pleadings and the list of documents the scope of a case.

59. In regard to the discovery and inspection of documents we have allowed the present provisions to exist side by side with the additional powers we have vested in the Judge who conducts a preliminary investigation. We have already stated that it has been brought to our notice that the provisions in regard to discovery are not generally utilised by parties; in fact, even the Judicial Commission felt that the "provisions of section 101, notice to admit documents, and the provisions for production and inspection of documents should be more widely used". Probably the traditional method and the professional habit are, as we have pointed out elsewhere, responsible for this lack of enterprise. There is a general disinclination to disclose documents. On this point the Judicial Commission of 1936 made some interesting comments:

"There seems to be a general opinion that it is a rule of prudence to keep your documents concealed from the knowledge of the other side as long as you can, since, if you disclose them too soon, you are giving opportunity to the other side to shape its case accordingly or to forge documents to meet them, but we doubt this is often successful. You certainly encourage falsehood if you let people know that they can keep back documents at their convenience.

We agree that "the prompt listing of documents minimizes the chance of their being fabricated and gives the parties on both sides and the Judge a clearer perception of what the case is about ". Mere exhortations to adopt a "new approach" are unconvincing and unlikely to produce any beneficial results "so long as the traveller is bound to proceed along the old accustomed road". As long as the procedure is rigid and formal it is not likely that parties will readily avail themselves of its advantages. We have therefore provided a simple rule which is likely to produce substantial beneficial results.

60. We have combined discovery and inspection at the same stage by requiring every party at the time of filing his list of documents to indicate in the list itself if he has any objection to the inspection by the opposite side of any of the documents contained in that list. Apart from these "excluded documents" to the inspection of which objection has been raised, a party can inspect without any formality or difficulty all the documents on which the opposite party relies; where the opposite party refuses to give inspection though no objection was noted on the list, the Court will compel inspection on an ex-parte application. In regard to the Excluded Documents, an application with notice to the opposite party may be made to the Court for an order for inspection. We feel that this provision is as simple and informal as it is effective and will encourage parties to seek inspection. In the structure of the new draft Code it will be noticed that the preliminary steps like the discovery and inspection of documents are intended to be taken before the preliminary investigation; where such steps are not so taken or inadequately taken it will still be open for the investigating Judge to direct that such steps be taken. We have already iscussed the advantage of postponing the preliminary investigation to a Sessional Paper VI of 1936, paragraph 63.

stage after discovery and inspection. We attach great importance to this as it will ensure that parties have some fair idea of the case of both sides when they appear before the investigating Judge.

61. We have already stated that inspection of a non-excluded document may be summarily compelled by the Court. We have also further provided that where inspection of a non-excluded document has not been given though request be made therefor, secondary evidence of the contents of such documents may be given by the party applying for such inspection (0.20, r.7).

62. Evidence before us was strong, and our experience supports this evidence, that much time is wasted in preparing to prove documents which really need no proof at all. This also involves unnecessary worry and expense to litigants. We have therefore provided that every document other than an excluded document named in a list of documents filed by any party should be prima facie evidence, if produced from proper custody

(a) that the document is what it purports to be; and

(b) that any writing, signature or initials appearing in the document is that of or those of the person or persons whose writing, signature or initials, it or they purport to be,

and should be admitted in evidence without proof except where notice that any such document or class of such document is challenged as to its authenticity is given to the party listing such document

(i) at or before the preliminary investigation;

(ii) where there is no preliminary investigation, within five days of date of filing such list of documents and such list of documents is filed not less than 20 days before the day fixed at the trial.

It will be noted that where there is no preliminary investigation and the party wants to avail itself of this advantage the list of documents has to be filed not less than 20 days before the day fixed for trial. In cases where there is no preliminary investigation it is not possible to make this provision more effective because of the time factor involved in the progress of the case. Provision has also been made that where a document is admitted in terms of the provision referred to, the contents of such document should be received as evidence of the facts stated therein without calling the maker as a witness provided the statements contained therein would be admissible if given in evidence orally by the maker of the document.

63. It has been brought to our notice that considerable hardship is experienced in commercial cases where parties take advantage of the normal rules of evidence to require proof of documents which ought ordinarily to be admitted. There are likely to be no serious difficulties in regard to these matters where the actions go through the process of preliminary investigation because the investigating Judge has sufficient power to take suitable steps to prevent hardship or embarrassment to any party. Cases which go to trial without preliminary investigation need some special consideration. For this type of case we have provided that where the authenticity or the contents of a document whether executed within or outside the Island relating to carriage of goods by sea or to conveyance of goods by rail are challenged the costs of proving the authenticity or the contents thereof should irrespective of the decision of the case, be borne by the party challenging such authenticity or contents unless the Court certifies that in all the circumstances of the case legal proof of the authenticity or of the contents of the case was properly and reasonably called for.

64. Witnesses who appeared before us stated that in actions for personal injuries sustained as a result of collisions hardship is caused by the inability of the parties to obtain certified copies of the relevant entries made in the Information Book in the course of Police investigations. We have been informed that at least in some places it appears to be the practice for a police officer in charge of a station to issue certified copies on a request by the Court. This is not a uniform or regular practice, nor does there seem to be any rule of law entitling the Court to make this request from a police officer, nor to enforce theorder in the event of non-compliance. We do not think that a Court should be placed in the awkward position of having to make a request where it cannot enforce compliance; we think this is obnoxious in principle. We note that in England too the same difficulties have existed and the matter has received the attention of the Evershed Committee. We have given this matter our most anxious consideration and we feel that the Court should be permitted to authorise the issue by the officer in charge of a Police Station of certified copies of statements made by persons who are parties to the action or their servants or agents or those who may be regarded as their servants or agents.

65. In regard to any other statement we do not think the Court should compel the issue of certified copies except with the consent of the person who has made such statement; nor do we think that the Court should authorise the issue of certified copies where criminal proceedings are pending in a Court of Law in respect of any offence alleged to have been committed in relation to such collision.

CHAPTER VIII-PROVISIONS OF THE CODE TO APPLY TO CROWN

66. Strong representations have been made to us that the privileges enjoyed by the Crown in civil litigation should cease to exist. Witnesses further urged that the immunity of the Crown against the tortious acts of its servants should be abolished. We explained to the witnesses who pressed this matter before us that questions of substantive law are outside our purview.

67. In regard to procedure we have made provision to put the Crown on the same footing as the ordinary litigant. In the main enactment we have provided that the provisions of the Code should apply to the Crown unless otherwise expressly provided to the contrary. It was always understood that the Crown would, though not expressly bound by the rules in regard to discovery, &c., extend to the subject all the opportunities necessary for a redress of real grievances. Our attention has been drawn to the observations, contained in the judgment of the Supreme Court in the case of Mackie vs. the Attorney-General :

"Full advantage was taken of the defective machinery of the Estate Duty Ordinance (Ch. 187) and of our Code of Civil Procedure for refusing to disclose information which, if available, would have helped to shorten the proceedings which followed.

... In

this country the Crown, as a litigant still enjoys many immunities and privileges which have been swept away by the provisions of the Crown Proceedings Act 1947 in England. So long as these and other immunities and privileges continue to exist, officers of the Crown should, for reasons of fairness and in the interests of justice, respect the long established and honourable convention 'not to throw any difficulty in the way of any proceeding for the purpose of bringing matters before a Court of justice where any real point of difficulty that requires judicial decision has occurred. ....unless there be some plain over-ruling principle of public interest concerned which cannot be disregarded".