15/12/2021
PRE TRIAL
Many people keep on asking me questions with regard to the pre-trial conference and its purpose. The pre-trial conference if often held by the plaintiff’s attorneys and the defendant’s attorneys after the close of the pleadings. By the close of the pleadings I mean when the defendant’s attorneys have served the plea on the plaintiff. If the plea is accompanied by the special plea by the defendant then the plaintiff must serve and file the replication to the defendant’s special plea. The special plea is often raised by the defendant that the plaintiff has failed to prove non-pecuniary damages in terms of the regulations of the RAF Act. Now, once the defendant has pleaded and the plaintiff has replicated to the special pleas then the parties may call for the pre-trial conference in terms of the rules of the court. The pre-trial conference must be held six weeks before the trial. The purpose of the pre-trial conference are the following:
1. The parties must decide on the separation of issues in terms of rule 33(4). The separation of issues we are referring to the general damages, future loss of earnings and/or earning capacity and the merits. The parties may decide to deal with the merits first, as the merits are in dispute. The merits mean the manner in which the accident occurred. When the merits are in dispute by the defendant it will not be prudent to deal with both merits and quantum at the same time. It is prudent for an attorney to finalize the merits before you deal with quantum. You must know your case first and that it will be successful on the merits before you deal with the quantum because if you deal with the quantum the experts get involved in the matter. The experts must prepare the medico-legal reports which are costly and also be instructed to prepare the joint minutes if the defendant has also appointed the experts. The experts have to be reserved for the trial. Reservation of experts for the trial if costly because whether the matter is settled or not the cost of reservation of the experts must be paid by the either party. If the plaintiff is successful with claim then the defendant will be liable for the cost of the reservation of experts, medico-legal reports and the joint minutes. Therefore, the parties may agree during the pre-trial conference to separate the merits from quantum in terms of rule 33(4) if the merits are in dispute.
2. The parties will discuss the issue of settling the merits or merits jointly with the quantum during the pre-trial conference. Make no mistake the matter may be settled during the pre-trial conference. If you run your matter from the beginning professionally and diligently you can settle it during the pre-trial conference. Why should you drag the matter to the door step of the court when you have done your work? When you get instructions from the claimant, you investigate the merits of the matter. You obtain all statements of the witnesses, insured driver, contents of the docket, records of the proceedings if there was a criminal trial of the insured driver, copy of the charge sheet, letter indicating the outcome of the criminal prosecution, photographs of the scene of the accident and rough sketch, plan and key by the claimant and the witnesses. Then you prepare the merits assessment reports and prepare the bundle of photographs and its narration. These documents must be served on the RAF. The RAF will assess the merits and give you an offer of settlement. In other words you make their work easier by preparing those documents. Once you are satisfied with the merits then you can refer the claimant to the experts because you have a solid case. It is like when you are building a house you must have a solid foundation otherwise your building will collapse. Settlement proposal must be discussed during the pre-trial conference and the defendant must react thereto
3. The other purpose of the pre-trial conference is that the parties will discuss which documents will be used at the trial without any proof thereof to narrow issues at the trial. Those documents can be handed to the court as evidence without proof thereof if the parties have agreed during a pre-trial conference. The parties can also agree on preparation of bundles of documents and the documents to be included in the bundles for use by the parties and court. Those bundle of documents will be paginated by the plaintiff’s attorneys/RAF. The RAF may supplement the bundle of documents. In other words, the RAF can prepare the supplementary bundle of documents.
4. The other aspect to be decided during the pre-trial conference is whether either party has suffered prejudice for non-compliance of the rules of the court by either party during litigation. For an example, you are served with the notice to discover in terms of rule 35(1)(6)(8)(10) and you fail to discover in terms of the rules, the other party will suffer prejudice in his preparation for trial. The documents included in the first schedule to the discovery affidavit are important for the other party to know. Those documents are going to be used during the trial and if the discovery affidavit is served then the party served with the discovery affidavit may request the documents set out on first schedule to discovery affidavit in order to prepare for trial. He may not be aware of other documents and he will be aware of them once the discovery affidavit is served. The parties may agree on a period within which the discovery affidavit will be served during the pre-trial conference. Now, the non-compliance of the rules of the court can be remedied during the pre-trial conference.
5. During the pre-trial conference the parties may agree on experts to be called during the trial. You need not call all experts during the trial to curtail the cost of litigation. You may also agree on the issue of joint minutes to be prepared by the experts. You must agree which experts must prepare the joint minutes if you want to verify certain things in order to settle the matter. In most cases, the issue of future loss of earnings is a problem and therefore an issue of future employability of the plaintiff is a problem. Therefore joint minutes of experts such as Industrial psychologist and the actuaries are important for the purpose of the trial. The parties may also agree during the pre-trial conference for either party to obtain an addendum to a certain medico-legal report or obtain an updated medico-legal report in order to assess whether the parties can settle the quantum.
6. The parties will deal with questions prepared by both parties in terms of rule 37(4) – pre-trial conference agenda/questions or the list of questions for the purpose of the pre-trial conference in terms of rule 37(4). If there are other outstanding medico-legal reports by either party then the parties my agree on a date of service and filing of those medico-legal reports or documents.
7. The parties may agree on having a second pre-trial conference before the trial in order to settle the matter.
8. The duration of the trial must be agreed upon by the parties during the pre-trial conference. Once the pre-trial conference is held, a pre-trial minutes must be prepared for the court and the parties must sign the pre-trial minutes.
9. Once such a pre-trial minutes is registered in court the parties may apply for the judicial pre-trial conference before the Judge in terms of rule 37(8)(a).
10. The matter can be settled and finalised during a pre-trial conference and that will save the costs of the trial.
