An Introduction To Civil Procedure

Some understanding of civil procedure can go a long way in helping bankers understand the mechanism of loan recovery. Although at this stage the process of loan recovery will be in the hands of the bank’s lawyers, a little understanding of the mechanism may help the bankers to decide on and give proper instructions to their lawyers.

Knowledge of civil procedure is of paramount importance if the process of loan recovery is to be a success.

In SA Andavan v Registrar of Land Titles, Negeri Sembilan [1977] 2 MLJ 222, Ajaib Singh J (as he then was) advised as follows :

… parties in a civil suit should observe the rules of procedure with mericulous care because failure to do so may well result in irreparable set-backs for them and it is not often for the court to take it upon itself to free the parties from difficulties of their own making and put them on their feet again.

For the purposes of recovery of a debt, secured or otherwise, a civil action is commenced. The rules and procedures in respect thereof are governed by the Rules of the High Court 1980 for actions in the High Court and actions in the Subordinate Courts are governed by the Subordinate Courts Rules 1980. The rules and procedures in the High Court are basically similar to that in the Subordinate Courts.

Civil procedure regulates all proceedings in Court. The Rules of the High Court 1980 (which came into force on 1 April 1980) provides for the ‘just, expeditious and economical’ disposal of such proceedings.

When a lawyer is consulted regarding litigation, his client is in effect seeking advice as to his rights and obligations on the facts pertaining to his claim or the claim against him. The lawyer will then decide whether the case is contentious or non-contentious. A contentious case will involve a trial. A non-contentious case does not involve the trial of an action.

On receiving instructions from the client, the lawyer will determine :

(a) whether an action in Court or an application to Court is necessary;
(b) the parties to the action or application;
(c) the cause of action; and
(d) the proper relief or claim sought by the client.

In other words, the lawyer takes instructions from the client and on those instructions he/she determines the cause and the form of action properly to be taken in accordance to civil procedure.