Act of Parliament · As enacted
Civil Procedure Code (Amendment) Act 2023
Official English translation. Where it differs from the Sinhala or Tamil text, the Act itself says which text prevails.
Official translationFrom Department of Government Printing, unchanged
s 1Short title
This Act may be cited as the Civil Procedure Code
(Amendment) Act, No. 29 of 2023.
s 2Amendment of section 5 of Chapter 101
Section 5 of the Civil Procedure Code (Chapter 101)
(hereinafter referred to as the “principal enactment”) is hereby amended by the insertion, immediately after the definition of the expression “decree”, of the following new definitions:-
“ “document” includes a document in electronic form;
“document in electronic form” includes -
any information consisting of any contemporaneous recording or reproduction thereof or any information contained in a statement produced by a computer within the meaning of the Evidence (Special Provisions)
Act, No. 14 of 1995;
any information contained in a data message, electronic document, electronic record, electronic communication or other information or transaction in electronic form within the meaning of the Electronic
Transactions Act, No. 19 of 2006;
such other document or information or record or communication or transaction in electronic form that may be specified by any other written law;
such other document or information or record or communication that is stored on devices, servers and back-up systems in any medium that encompasses computer technology or any such document or information or record or communication that has been deleted; or
any metadata and other embedded data which is not typically visible on a computer screen or print out;”.
s 3Amendment of section 18 of the principal enactment
Section 18 of the principal enactment is hereby amended in subsection (1) thereof, by the substitution for the words “before the hearing,” of the words “before the day first fixed for the pre-trial conference,”.
s 4Amendment of section 22 of the principal enactment
Section 22 of the principal enactment is hereby amended as follows:-
by the substitution for the words “before the hearing.” of the words “before the day first fixed for pre-trial conference.”; and
by the repeal of the marginal note thereof and substitution therefor of the following marginal note:-
“Objections for non-joinder or mis joinder to be taken before the day first fixed for pre-trial conference.”.
s 5Replacement of Chapter XA in the principal enactment
Chapter XA (section 79A) of the principal enactment is hereby repealed and the following Chapter is substituted therefor: -
“CHAPTER XA
FIXING DAY OF PRE-TRIAL CONFERENCE
79A. The court shall-
upon the filing of the answer; or
where a replication is permitted, on the last day of the period of time allowed for the filing of the replication, whether such replication is filed or not, appoint a date not less than three months and not exceeding five months from such date, for pre-trial conference to be commenced, either in the presence of all parties to the action or such parties as are present.”.
s 6Insertion of new Chapter XB in the principal enactment
The following new Chapter is hereby inserted immediately after Chapter XA of the principal enactment and shall have effect as Chapter XB of that enactment: -
“CHAPTER XB
PRE-TRIAL STEPS TO BE TAKEN BEFORE THE
PRE-TRIAL CONFERENCE
79B. The parties shall, in addition to any other pre-trial step that may be taken by such parties before the case is fixed for pre-trial conference, tender -
their proposed admissions and issues of fact and law in writing;
Date for pre-trial conference order
Pre-trial steps to be taken before the date fixed for the pre-trial conference
(i) lists of witnesses to be called by such parties at the trial; and
lists of documents relied upon by such parties and to be produced at the trial;
copies of documents listed in the lists of documents which are in the possession of or under the control of such parties, to the registry of the court, not less than thirty days before the date first fixed for the pre-trial conference and after giving notice to all other parties with proof of service thereof.
79C.
Tendering of documents in electronic form
Notwithstanding anything to the contrary contained in the Evidence (Special
Provisions) Act, No. 14 of 1995, Electronic
Transactions Act, No. 19 of 2006 or any other written law, where any party proposes to tender any document in electronic form, the provisions of this section shall apply in relation to the tendering of such documents.
Any party proposing to tender documents in electronic form shall, not less than thirty days before the date first fixed for pre-trial conference, file in court, after giving notice to the opposing party or parties –
the list of such documents in electronic form together with an index thereof; and
a copy or copies of such documents as is sufficient to enable the party to understand the nature of such evidence.
Any party to whom a notice has been given under subsection (2) may, within fifteen days of the receipt of such notice apply for permission from the party giving such notice, to access and inspect -
the documents in electronic form, sought to be tendered in court under subsection (2);
the machine, device, computer or information system, as the case may be, used to produce, reproduce, generate, create, send, receive, store, display, communicate or process the documents in electronic form referred to in paragraph (a); and
any records relating to the production, reproduction, generation, creation, sending, receipt, storage, display, communication or processing of the documents referred to in paragraph (a).
Upon receipt of an application for permission to access and inspection under subsection (3), the party proposing to tender such documents in electronic form shall, within reasonable time, but not later than fifteen days after the receipt of such application, provide a reasonable opportunity to the party applying or his agents or nominees, to have access to, and inspect such documents in electronic form, machine, device, computer, information system or records referred to in the application.
Where –
the party proposing to tender documents in electronic form is unable to give permission or does not give permission for access and inspection as applied for under subsection (3); or
the parties are unable to agree on any matter relating to -
the notice given under subsection (2); or
an application for access and inspection made under subsection (3) or the manner and extent of such access and inspection, the court may on application made by either party, make such order or give such direction, as the interest of the justice may require.
The time period referred to in subsection (3) or (4) may be extended at the discretion of the court, based on the special circumstances of each case.
Where any party proposing to tender any document in electronic form under this section –
fails to give notice under subsection (2);
upon application being made for access and inspection under subsection (3), fails to provide a reasonable opportunity therefor; or
fails to comply with any order or direction given by court under subsection (5), such party shall not be permitted to tender such documents in electronic form, in respect of which the failure was occasioned:
Provided however, the steps or applications referred to in this Chapter shall be followed prior to the conclusion of the pre-trial conference.
Where any party objects to the admissibility of any document in electronic form tendered under this section, such party shall file in court, objections with reasons therefor in writing with copies to all other parties, either before the pre trial conference or at the pre trial conference, as the case may be.
Where any party files objections under subsection (8), the court shall hear the parties to ascertain whether the parties can admit such documents in electronic form, and where no such admission is recorded, the court shall make an appropriate pre-trial order under section 142B with regard to the admissibility of such documents at the pre-trial conference.”.
s 7Replacement of section 80 of the principal enactment
Section 80 of the principal enactment is hereby repealed and the following section is substituted therefor: -
80. (1) After the issues are settled and the
Judge conducting the pre-trial conference is satisfied that the case is ready for trial, the
Judge shall forthwith appoint a date not later than fourteen days from the date of the conclusion of the pre-trial conference for the case to be called in order to fix a date for the trial, in the trial court.
The trial shall be conducted by a
Judge appointed for such purpose, other than the Judge who conducted the pre-trial conference:
Provided that, where a Judge has not been separately appointed to conduct the pre-trial conference, the Judge who has been appointed for such court shall conduct both pre-trial conference and the trial of such action.
The Judge who is fixing the case for trial may, in any appropriate case, fix several dates for trial.”.
”Fixing the case for trial
s 8Repeal of section 80A of the principal enactment
Section 80A of the principal enactment is hereby repealed.
s 9Amendment of section 93 of the principal enactment
Section 93 of the principal enactment is hereby amended, as follows:-
by the substitution, in subsection (1) thereof, for the words “first fixed for Pre-Trial of the action” of the words “first fixed for pre-trial conference of the action”; and
by the substitution, in subsection (2) thereof, for the words “first fixed for Pre-Trial of the action” of the words “first fixed for pre-trial conference, of the action”.
s 10Amendment of section 94 of the principal enactment
Section 94 of the principal enactment is hereby amended, by the substitution, in subsection (1) thereof, for the words “Any party may at any time before hearing,” of the words “Any party may, fifteen days before the date first fixed for the pre-trial conference,”.
s 11Amendment of section 101 of the principal enactment
Section 101 of the principal enactment is hereby amended, by the substitution, in subsection (1) thereof, for the words “on motion ex-parte within a reasonable time not less than ten days before the hearing,” of the words “on motion ex-parte not less than fifteen days before the date first fixed for the pre-trial conference,”.
s 12Amendment of section 102 of the principal enactment
Section 102 of the principal enactment is hereby amended, by the substitution, in subsection (1) thereof, for the words “party to the action may, at any time before the hearing,” of the words “parties to the action may, fifteen days before the date first fixed for the pre-trial conference”.
s 13Amendment of section 103 of the principal enactment
Section 103 of the principal enactment is hereby amended as follows:-
by the re-numbering of that section as subsection (1) thereof;
by the substitution, in the re-numbered subsection (1) thereof, for the words “order the production by any party” and “when produced in such manner”, of the words “order the production or preservation by any party” and “when produced or preserved in such manner”, respectively;
by the insertion, immediately after the re-numbered subsection (1) thereof, of the following new subsections:-
“(2) A party intending to institute any proceeding before court may, prior to the institution of such proceedings, make an application ex parte, by way of petition supported by an affidavit, for an order to be made requiring a person or entity having possession of any document in electronic form, who shall be made the respondent in such application, to preserve, disclose or produce such document, as may be specified in such order.
The court may, upon the receipt of an application under subsection (2), make an order as prayed for in such application, if –
the person or entity against whom an order is sought is likely to be a party to the proceeding to be instituted subsequently;
the applicant is also likely to be a party to such proceeding to be instituted subsequently;
the document in electronic form sought to be preserved, disclosed or produced is relevant to the matter in dispute in respect of which the proceedings are intended to be instituted and is in the possession or control of such respondent;
the duty to preserve, disclose or produce any electronic document upon the receipt of such order extends to the document in electronic form of which the applicant seeks preservation, disclosure or production, if proceedings had commenced against such person or entity;
preservation, disclosure or production of such document in electronic form is desirable in order to –
dispose the intended proceedings in a fair manner;
assist the dispute to be resolved without proceedings; or
save costs.
Any person who or entity which receives an order made under subsection (3) shall have a duty to comply therewith and in the event of non-compliance, such person or entity shall be guilty of the offence of contempt of court.
Any party to any proceeding pending before a court may, not less than forty-five days before the date first fixed for the pre-trial conference, make an application for an order to be made requiring any other party to such action to preserve, disclose or produce any relevant document in electronic form, as may be specified in such order.
Any party making an application under subsection (5) of this section shall –
describe with reasonable particularity each item or category of items to be preserved or disclosed or produced; and
specify the manner of preservation, disclosure or production and by whom such preservation, disclosure or production is to be performed.
A party who receives an order made under subsection (5) shall have a duty to comply therewith and in the event of non-compliance, the court may–
where the restoration of such document in electronic form is possible, order for the restoration of the same and award costs;
where the restoration of the document in electronic form is not possible and where the court is of the opinion that prejudice has been caused to the party making the application, due to the loss of such document and that non-complying party has acted with the intention of depriving the use of such document by the other party-
impose costs in a sum as may be deemed reasonable by the court; or
where the prejudice cause cannot be cured by way of costs, in case of a plaintiff, order to have his action dismissed for want of prosecution, and in case of a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not appeared and answered.
A party or person failing to comply with an order made under subsection (5) of this section shall not be entitled to produce any such document in electronic form in evidence on his behalf in such action, unless he satisfies the court that such electronic document relates only to his own title, or that he had some other sufficient cause for not complying with such order.
A party to any proceeding may make an application ex-parte by way of a petition supported by an affidavit, not less than forty-five days before the date fixed for pre-trial conference, for an order to be made requiring any person or entity who is not a party to such proceeding, to preserve, disclose, or produce any document in electronic form in the possession or control of such person or entity. The person or entity against whom such order is sought shall only be made the respondent in such application.
Upon receipt of an application under subsection (9), the court may make an order as prayed for in such application, if –
the document in electronic form of which the preservation, disclosure or production is sought is likely to support the case of the applicant or adversely affect the case of any party to such proceeding;
preservation, disclosure or production is necessary in order to disprove the claim in a fair manner or to save costs.
An order made under subsection (10) may-
specify the documents in electronic form which the respondent is required to preserve, disclose or produce;
if relevant, specify the time and place of preservation, disclosure or production to take place;
specify the format or formats in which document in electronic form is to be produced; and
require the respondent, when making preservation or disclosure, to specify the documents, if any, which are or not in his control or possession with reasons therefor.
Any person or entity who fails to comply with an order made under subsection (10), shall be guilty of the offence of contempt of court.
Where a person, entity or party from whom preservation, disclosure or production of a document is sought under subsection (2), (5) or (9)
objects to such preservation, disclosure or production from the source of such document for not being reasonably accessible due to the burden of cost, the court may limit the extent of such preservation, disclosure or production otherwise allowed under the said subsections where –
the preservation, discovery or production sought is unreasonably cumulative, duplicative, disproportionate or excessive to the material facts of the case;
the requested document in electronic form can be obtained from any other source which is more convenient, less burdensome or less expensive;
the party seeking preservation, disclosure or production has had ample opportunity to obtain such document by discovery in the action; or
the requested document in electronic form is irrelevant or not proportionate to the issues in dispute or the party’s resources or the burden of expense of the proposed discovery outweighs the possible benefits and importance in resolving the issues:
Provided however, the court may order preservation, disclosure or production from the sources of such document in electronic form, if the party making the application for preservation, disclosure or production is able to show good cause, subject to such limitations as may be imposed by the court.
Unless otherwise agreed or ordered, electronic copies of the disclosed documents in electronic form shall be produced –
in their native format;
in a manner which preserves metadata relating to the date of creation of each such document; and
organised and labeled in a manner that corresponds with the categories of such documents as requested.”; and
by the repeal of the marginal note thereof and the substitution therefor of the following marginal note:-
s 14Amendment of section 104 of the principal enactment
Section 104 of the principal enactment is hereby amended, by the substitution in subsection (1) thereof, for the words “party to an action may, at any time before or at the hearing thereof,” of the words “party to an action may, fifteen days before the date first fixed for the pre-trial conference thereof,”.
s 15Insertion of new section 104A in the principal enactment
The following new section is hereby inserted immediately after section 104 of the principal enactment and shall have effect as section 104A of that enactment: -
“Orders for preservation, disclosure or production of documents or documents in electronic form.”.
104A.
”Protective orders
A party, person or an entity against whom the discovery, production or preservation of a document or document in electronic form is sought, may apply for a protective order to the court within which such action is pending.
The court may, for good cause, make one or more of the following orders to protect any such document or the interests of a person, entity or party: -
prohibiting the disclosure or discovery;
specifying terms, including the time, place, forms and manner of the disclosure or discovery;
prescribing a discovery method other than the one selected by the party seeking discovery;
prohibiting inquiry into certain matters or limiting the scope of disclosures or discovery to other matters;
designating persons or experts who may be present while the discovery is conducted;
appointing persons or experts who shall conduct the disclosure, discovery, preservation, inspections, keep custody, examination, analysis, reporting and presenting them in court;
directing that a confidential research, development or trade secret or undisclosed or confidential information of commercial nature not to be disclosed or disclosed only in a specified manner; or
directing that a document in relation to undisclosed confidential research, development or trade secret or undisclosed or confidential information of commercial nature not to be disclosed or disclosed only in a specified manner.”.
s 16Amendment of section 109 of the principal enactment
Section 109 of the principal enactment is hereby amended, by the substitution, in subsection (1) thereof, for the words “interrogatories, or for discovery, production, or inspection, which” of the words “interrogatories, or for discovery, production, inspection, preservation or protection, which”.
s 17Replacement of section 117 of the principal enactment
Section 117 of the principal enactment is hereby repealed and the following section is substituted therefor:-
117. The provisions of this Chapter as to documents shall, mutatis mutandis, apply to all other material objects producible as evidence and to all documents in electronic form, to the extent not inconsistent with the provisions of this Chapter.”.
s 18Amendment of section 121 of the principal enactment
Section 121 of the principal enactment is hereby amended, by the repeal of subsection (2) thereof.
“Provisions as to documents apply to other material objects and documents in electronic form