When may a method of attack or defence that was not submitted at the preparation hearing still be put forward in oral argument?
General information · Not legal advice
Material to check
For this exercise, the practice file holds the list of methods of attack or defence each side submitted at the preparation hearing, the minutes of that hearing, and any later pleading or application at oral argument together with papers explaining why the matter was not put forward earlier.
These are types of material to look for, not evidence already verified by PRO SE.
Where readings differ
One reading takes the provision literally: a method not submitted at the preparation hearing may be submitted in oral argument where it falls within one of the three heads — submitting it would not significantly delay the litigation, the party makes a prima facie showing that the matter could not be submitted in the preparation procedure through no gross negligence, or it is a matter the court investigates on its own — while a matter set out in the complaint or in a brief filed before the preparation procedure may be asserted at oral argument even outside those heads, unless it was withdrawn or changed in the preparation procedure.
Another reading stresses the exclusionary effect of the closing of the preparation hearing: a matter falling outside the three heads cannot be brought in on that footing at oral argument, though a matter set out in the complaint or in a brief filed before the preparation procedure may still be asserted there unless it was withdrawn or changed in the preparation procedure, and since the provision does not say what counts as delaying the litigation significantly, or what matters the court investigates on its own, which items fall within those heads is not settled by the text.
Your judgment
Where a party relies on the item concerning delay of the proceedings, how could the file show what effect the new matter would have on the progress of the case?
PRO SE does not make this decision or keep a case record on this public site.When to reconsider
We look at this again if the provision is amended to change the three heads or their conditions, or if a court decision explains what counts as significantly delaying the litigation or as a matter the court investigates on its own.