Filing of Witness and Document Lists in Civil Trials

Filing of Witness and Document Lists in Civil Trials

Introduction

The Supreme Court of Sri Lanka, in the case of Niyakulage Dilruk Sanjeewa Fernando v. Meddakandage Anilka Rohini Perera, has delivered a significant ruling concerning the procedural requirements for filing lists of witnesses and documents in civil litigation. The case, cited as SC/APPEAL/1/2025, revolves around whether a trial court can reject an entire list of witnesses and documents for late filing, and how judicial discretion should be exercised in such instances.

This judgment offers crucial insights into the application of Civil Procedure Code sections 121 and 175, especially in light of recent amendments introduced by Act No. 29 of 2023.

Case Reference

• Case No: SC/APPEAL/1/2025

• Date of Judgment: 10.02.2025

• Bench:

Justice Mahinda Samayawardhena

Justice P. Padman Surasena

Justice E.A.G.R. Amarasekara

Case Background

The case originated from the District Court of Panadura, where the plaintiff, Niyakulage Dilruk Sanjeewa Fernando, sought to introduce a list of witnesses and documents 14 days before the second date of trial. The defendant objected, citing that the list was filed late, violating Section 121(2) of the Civil Procedure Code. The District Judge upheld the objection and rejected the entire list.

The High Court of Civil Appeal (Kalutara) affirmed this decision, leading to the plaintiff’s appeal before the Supreme Court.

Legal Issues

1. Was the rejection of the plaintiff’s entire list of witnesses and documents legally justified?

2. Should the courts adopt a strict or flexible interpretation of procedural deadlines?

3. What is the impact of the Civil Procedure Code (Amendment) Act, No. 29 of 2023, on filing witness and document lists?

Supreme Court’s Analysis and Decision

1. Timelines for Filing Witness and Document Lists

The Court revisited the historical evolution of Section 121:

• Before the 2017 Amendment: Filing lists of witnesses and documents was not classified as a pre-trial step.

• 2017 Amendment (Act No. 8 of 2017): Introduced pre-trial procedures but did not amend Sections 121 and 175, creating ambiguity.

• 2023 Amendment (Act No. 29 of 2023): Clearly established pre-trial timelines for filing documents and witnesses, making early submission mandatory.

The Court emphasized that under the pre-2023 law, the deadline for filing witness lists was 15 days before the first fixed trial date, not any postponed date. Since the plaintiff filed his list only 14 days before the second trial date, the filing was non-compliant.

2. Judicial Discretion in Late Filing of Lists

Justice Samayawardhena ruled that rejecting the entire list was excessive. Courts should assess each document and witness separately rather than dismissing an entire submission due to a single procedural defect.

The correct approach, as established in previous rulings (Rogers Agencies (Pvt) Ltd v. People’s Merchant Bank Ltd [2005] 3 Sri LR 210, Salih v. Hemawathie [2004] 3 Sri LR 91), is to permit marking of documents where the opposing party is not prejudiced.

3. The Role of Section 175 – Court’s Discretion to Allow Late Documents

The Court reaffirmed that Section 175 allows discretion to admit unlisted witnesses or documents if:

• It serves the interests of justice.

• No substantial prejudice is caused to the opposing party.

• The document was pleaded in the plaint or previously disclosed.

In this case, Deed No. 10421, which the plaintiff attempted to mark, was already referred to in the plaint. The Court found that its rejection violated the principles of fairness.

4. Application of the 2023 Amendment to the Civil Procedure Code

The new law now requires parties to file their witness and document lists 30 days before the pre-trial conference rather than before the trial itself. The amendment also provides:

• Pre-trial hearings to facilitate settlements.

• Provisions under Section 142D for late submission of documents under certain conditions.

• Court discretion under Section 175 to permit unlisted witnesses/documents at trial.

The Supreme Court clarified that while the 2023 Amendment does not apply retrospectively, its principles should guide current judicial interpretations.

Supreme Court’s Ruling

The Supreme Court allowed the appeal, setting aside the orders of the District Court and the High Court. It directed the District Judge to allow Deed No. 10421 to be marked and proceed with the trial. However, no costs were awarded.

Key Takeaways from SC/APPEAL/1/2025

1. Strict adherence to procedural deadlines must be balanced with fairness.

• Courts should avoid rigid technicalities that prevent justice.

• Entire lists should not be rejected due to a single non-compliance issue.

2. The objective of filing witness and document lists is to prevent surprise, not to create procedural traps.

• If the opposing party had prior knowledge of a document, late filing should not automatically exclude it.

3. Section 175 grants courts discretion to admit unlisted witnesses or documents when justified.

• If “special circumstances” exist, courts should allow late submissions.

• Factors such as the nature of the document, prior references in pleadings, and lack of prejudice to the opposing party should be considered.

4. The 2023 Civil Procedure Code Amendments emphasize pre-trial efficiency.

• The pre-trial conference is now the main stage for document and witness disclosure.

• Courts should actively work towards settlements instead of mechanically fixing cases for trial.

Conclusion

The Supreme Court’s judgment in SC/APPEAL/1/2025 is a landmark ruling on procedural fairness in Sri Lankan civil litigation. It underscores the need for a balance between strict procedural compliance and the administration of justice.

With the 2023 amendments, litigation in Sri Lanka is moving towards a more efficient, transparent, and fair process. This ruling serves as a guiding precedent for judges, lawyers, and litigants, ensuring that technicalities do not obstruct substantive justice.