Having entered an appearance to the lawsuit, filed a defence and counterclaimed as the case may be within the stipulated time periods, the court will convene a hearing of the parties – known as a preliminary hearing – which both sides must attend, or their representatives, this serves various purposes:
- Attempt to reach an agreement or settlement between the parties, which if successful will be submitted to the court for its approval and which will end the dispute.
- If no agreement is reached, the procedural exceptions raised in the defence will be examined and addressed, this may give rise to either of the following: the litigants lack capacity or locus standi; the inadequacy of the procedure employed; the mater has been previously decided or res judicata; or a defect in the way the application was brought. Whichever of these grounds will be considered by the court and remedied where possible, otherwise, the court shall issue an order dismissing the proceedings and will not rule on the merits of the case.
- The preliminary hearing can also be used by the parties to raise supplementory allegations that serve to refine or elaborate those already submitted in their opening claim, though they cannot at this time adduce fresh claims either factual or legal to their original complaint. In any case, the pre-trial hearing closes definitively the pleadings as to issues of law and fact on what divides the parties.
- With regard to the discrepancies between the facts asserted by each of the parties, both sides will propose the evidence that they intend to rely on to prove the truth of the facts alleged, and the court will decide which evidence is pertinent, relevant and lawfully admissible to conduct the hearing of the action.
- The preliminary hearing concludes by fixing the date for the trial of the action. The parties are then put on notice and may address the court as to whether they wish the court to subpoena witnesses or experts, or if they themselves wish to undertake this responsibility.