The court emphasized adherence to pre-trial directions and the principles of discovery in medical negligence cases, impacting costs and liability judgments.

JUDGMENT

Azizul Azmi Adnan J:

Introduction

[1] These grounds of judgment relate to:

(a) an order of costs in the amount of RM500 given by the court against the defendants for failure to comply with pre-trial directions; and

(b) an unless order made by the court for the discovery of certain documents in the possession of the defendants.

Background Facts

[2] The first plaintiff is a minor. He suffers from cerebral palsy. Through his mother and litigation representative, he sued certain members of staff of Hospital Tuanku Ja'afar in Seremban for medical negligence related to the circumstances of his birth. The second and third plaintiffs are the first plaintiff's father and mother respectively. It was the plaintiffs' case that the negligence on the part of the defendants had led to cerebral hypoxia and ultimately to the condition from which the first plaintiff suffers.

[3] The suit was filed in October 2020.

[4] At a case management conference on 5 July 2021, trial was fixed for eight days in June 2022.

The Order Of Costs

[5] In the course of case management conferences, the court was informed that the plaintiffs wished to adduce expert testimony, and for this purpose expert reports would be prepared. The court directed that the expert reports comply with the requirements of O 40A of the Rules of 2012.

[6] At a case management conference held 12 July 2021, the court was informed that three of the plaintiffs' expert reports were ready. The court directed that the three reports be emailed to the defendants' counsel no later than the following Wednesday. Counsel for the defendants informed the court and the plaintiffs' solicitors of the identity of the defendants' experts. The court was further informed that defendants' expert reports would be ready within two months. The court directed that these reports be filed no later than the next case management conference date, which was fixed for 23 September 2021. The lawyers were informed by the court that further directions will be given regarding rebuttal reports to be prepared by the experts.

[7] The lawyers were also informed of the possibility that expert testimony would be received simultaneously at trial, in a process commonly known as hot-tubbing. The expert witnesses would testify after the witnesses of fact have testified.

[8] At the 23 September 2021 case management conference, the court was informed that the defendants' expert reports had yet to be filed, contrary to directions given on the last date. The court gave an unless order for such reports to be filed within a period of a further 8 weeks. Despite the unless order, the defendants' expert reports were only provided on 24 January 2022, approximately two months after the extended deadline set by the court, and four months after the original deadline.

[9] Before any deadlines are fixed for any matter in the course of case management conferences, it is customary that I ask the relevant party how long they require to attend to the matter. So it was in this case. The timelines were not plucked from thin air, but determined after taking into account input from solicitors.

[10] In a case management conference on 8 March 2022, counsel for the plaintiff was directed to prepare a table of experts' issues, which was to be discussed the next case management conference three weeks later, on 29 March 2022.

[11] I pause the narrative here to observe that, by the end of March 2022, there would be little more than two months to trial. Even though there was ample time given for the preparation of the expert reports, it was only after an unless order was given that the defendants were able to deliver their expert reports.

[12] The table of experts' issues is a document that is intended to summarise the issues upon which the experts have opined. These issues are set out in tabular form, which enables a reader to quickly ascertain the areas in which the experts are in disagreement. The direction by the court to prepare the table of experts' issues was intend