ADJOURNMENTS & DELAY

This is particularly when the case has been fixed after

consultation with the otherside`s lawyer. In civil cases
before the HC, we are expected to arrange the trial
INTRODUCTION date by negotiating with the other side lawyer and the (B)Civil cases Appeal cases and Trial Case: which take priority
It is a systematic failure because we have the fused system. It isregistrar about the available date for the courts and If it is civil case you must take into account three
not so for the English system which is not fused . the parties concerned. Thus ,as early arrangement things: (1) We must take into account the nature of the case. If it
has been made, we aren’t expected to apply for an 1.The stage of the case is a criminal caser before the HC it should be given
In England, they can’t ask for adjournment to extend the case evenadjournment. 2. Extent of the progress priority and the court wil understand it because the
though he has another case at the same time in another court. The The normal practice in both civil and criminal cases is 3. The level of the court person will be in jail and having the charges hanging on
barrister is expected to hand the brief to the solicitor if cant attend that the trial will only be fixed after the registrar has The judges in HC think they should always take his neck. This should take priority even over a criminal
the court on that day, therefore the solicitor will call clerks fromconsulted both parties. precedent. Cases which has been heard should be case in lower court.
across England to look for a barrister to handle the case in the last the primary priority if there is a case first started in
minute. This is because the English bar is separated and the The problem would arise when the case is fixed w/out the Magistrate Court then this should be give priority (2) The nature of appeal whether it is a criminal or civil
solicitor will be the one who remains with the case through out thethe lawyer being consulted. This happens to HC in because tendency of the Magistrate being transferred case, is another issue. If it is a criminal case and stay of
time filling all papers. That is why he is also known as solicitor in interlocutory application. When we file the summons, and possibility of denevo. execution , it should take priority e.g. if it involves death
record. we will find that the date on the summons are In Malaysia the practice of the HC in not like sentence.
according to the courts convenient and not ours. This England where the case is not heard from day to day Likewise , if it is a corperal punishment the court will not
When a barrister accepts the brief he must check whether he is may case problem but there is a practice to handle till the end. It is fixed for specified period only and this impose the stroke penalty first but if it is a jail sentence
available or not for the trial. If he is not available, it is unethical forthis problem. In case the application is in local court might cause injustice to the client as they might forget only the punishment will be carried out.
him to accept the brief because he has to apply for an adjournmentthen we can ask to adjourn ( letter ) till afternoon. h\the testimony.
later. The basic practice is that we should appear before If in case we need an adjournment for our own reason (3) We consider the seriousness of the offence as well.
the court to apply for adjournment but this can also be such as Holiday, make sure the holiday is during the
In ELS cases go on from day to day till the case end and in thedone by asking/sending our clerks or legal assistance court’s vacation. If it is an emergency eg taken ill we (4) The period OKT has been in remand .
event the case exceeds the day fixed for hearing, then theto court. However this is only possible in exceptional must get MC from the Government Doctor. The
barristers is expected to continue with the case. If he has somecases i.e outstation, certain demise or labour. doctor must state whether can attend court or not. He As between the COA and the Federal Court, FC will take
other matter during the extension, he has to give back the brief to Things to be taken into account when applying for might be called to clarify the MC in the court . So he priority but we still have to take into account all the 4
the solicitor and the solicitor has to look for a new barrister . This an adjournment must be careful. factors above.
problem is caused by the division of bar between solicitor and Even in civil cases sometime if there are some amount of
barrister. 1. The nature of the matter either civil/criminal If we are serious in arranging a settlement and we interest running against one party this should to be taken
POINTS: (A) Criminal cases-Criminal matters always take don’t intend to continue the case then we can have into account .
(1) If the barrister has another case at the same time, he is priority particularly if our client is in prison or in adjournment. This will save time. When we are
expected to give back the brief to the solicitor who will find a new remand though he is innocent OR applying for adjournment and we are present we Between Syariah and Civil Courts, which take priority
barrister for the case. If the client is in jail on the ground that he can’t afford should state the date which we are free. Always .
(2) the system in England is that the case will be heard from day tobail it is not advisable to apply for an adjournment. remember to bring our diary. No jurisprudence that one court should take priority over
day therefore there is no right of adjournment and delay. This is highly unjust. the other. We must take into account the nature of the
The suggestion is that the bail should be high and Appeal Cases case and the same consideration should apply above
However in our system, it is not possible because the bar is fused,affordable enough to ensure attendance. When applying for an adjournment we should rather than the nature of the court. SC tends to hear
The advocate is also the solicitor. So: consider carefully because it can cause family matters that should be next to criminal matters. It
(1) though its technically possible to have adjournment and delay , We can find people being jailed longer than the period Inconvenient to the court -In our system there could is because the fluxion of time tends to alter the balance
but difficult for the advocate to hand over the file to another new prescribe in the law for such alleged offence simply be a number of judges sitting as panels and it will take between the two parties. E.g. between husband and wife
lawyer because the case overruns the period originally fixed for the because he can’t afford to pay bail.Eg Recent a long time for the same panel of judges to sit where the child has been abducted it will take a long
hearing. discovery in Sarawak OKT was in the prison for 25 together again. If the case is adjourn the same panel time to have him back .
years pending his trial as he was ??? of judges will have to sit again.
(2) it appears that he does not need to file to another advocate COSTS FOR ADJOURNMENT
because the period of overrunning does not occur. The court will So the court must check whether the OKT is in jail or If we are the Appellant we can aspect the respondent When a party applies for adjournment w/out good
only hear the case within the period fixed and if the case extends, not and if so adjournment should be refused. to be impatient to impose the judgement obtained by reasons the judge may allow the application provided the
the court will order an adjournment. Normally the court will consider the period of remand him earlier because he will be interested with his right cost of the day will be given to the other party, or the
served by the OKT while passing a sentence in case and not the appeal. There might be accusation on us judge might even dismiss the application with the cost
It must be noted that adjournment is not as a matter of right. Hence, he guilty. for trying to delay or deny their fruit of justice. We incurred or which could have incurred.
if our diary shows that we are busy, we should not take up the case could aspect the appeal judge not to sympathise our For example, if the case was delayed for 10 days than
. Give some one else to take it. The injustice rising out from adjournment is because; appeal if we apply for an adjournment we would have to bare the costs for that period covering
1.The court does not allow for custodial the legal expenses witnesses etc.This will only apply to
2.The fact that the OKT is in jail becayse he cannot If we find the date has been fixed at our inconvenient civil cases and therefore an adjournment would seem to
LPA (Practice & Etiquette) Rules 1978 afford bail write for an adjournment. Writing in is not an be an expensive proposition here. We should always ask
Rule 6 (a) an advocate and solicitor shall not accept any brief 3.He has been jailed and the court rectified this by application, but only giving a notice for application, for the costs to be taxed. The costs tax must be paid
unless he is reasonably certain of being able to appear and giving retrospective imprisonment. because we must present before the court in order to forthwith as compared to the normal practice. In normal
represent the client on the required day. apply. practice the costs is paid at the end of the case. But
It is suggested that the court should develop a fast Since the appellate judges will refuse adjournment when we apply for adjournment it might cause some
Rule 24 states that track to help person in jail at the same time the and consider them to be superior even if we give inconvenient thus the court might order us to pay the
(a) an advocate and solicitor shall make every effort to be ready for lawyers should not ask for adjournment reasonable excuse. It is better to hand the case to costs first , sometime the court may order the lawyer to
trial on the day fixed. another lawyer as appellate advocacy is allowed. It is bare personally if it suspect that the lawyer ask for
(b) and A & S may apply for postponement of a case fixed for A man should not be kept in fear of imprisonment or better to have senior lawyers for the appellate adjournment due to his incompetentcy,.
hearing for good and cogent reasons only a criminal charge hanging on his head as this will advocacy as the appellate court will appreciate it.
(c) except in an emergency , it is improper for an advocate and affect his mind and life. Tam Pak v Cham Boon Sun[1992]2 MLJ 271
solicitor to apply for a postponement in the absence of counsel for
the other side unless he has given the counsel concerned at least If it is a HC criminal case it usually involves capital
48 hours notice of his intention to make the application. offence and no bail is given in law, there is a
possibility OKT will be in jail for 3-4 years till he is
heard.