Litigation, Statement of Claim, Notice of Appeal


Civil Litigation

The procedures for commencing civil litigation may be different for different jurisdictions. In general, the Rules of Court in most common law jurisdictions, allow for two modes of commencing civil proceedings:

  • By Writ of Summons; and
  • By Originating Summons

 

A. Writ of Summons

 

Most civil actions begin by way of a Writ of Summons. A Writ of Summons is an official document for the defendant, requiring him to appear in court to dispute the plaintiff’s claim.

Civil lawsuits involving disputes of substantive facts are initiated by way of writs. These include, but are not limited to:

  • Contractual behavior, such as claiming damages for breach of contract;
  • Tortious actions, such as damages due to traffic accidents, negligence of property, breach of duty, damages due to fraud and defamation;
  • Personal injury, such as a claim for damages due to personal injury and / or death caused by a road, industrial accident or negligence;
  • Intellectual property lawsuits, such as damages claims for copyright, trademark or patent infringement; and
  • Admiralty and shipping department.

Procedures for issuing a Writ of Summons

 

Before issuing a writ, the plaintiff should determine the defendant's name and last known address. If the defendant is a corporation / limited company, the plaintiff should conduct a search to obtain the latest information on the company's name and registered office. If the defendant is a company (sole proprietorship or partnership), the plaintiff should conduct a business registration search at the tax bureau to determine the firm's name and principal place of business.

 

Sample summons can generally be downloaded from the website of the relevant courts. When a writ is issued, the plaintiff must endorse the claim detailing the legal basis and facts of the claim, and the relief and remedy the plaintiff is seeking.  The summons must be issued and filed with the court registry.

Each writ must be accompanied by three acknowledgements of service. The plaintiff is responsible for serving the defendant on the summons writ and the three acknowledgements of service. Generally, one can serve a summons on a defendant in person or by registered post.

 

If the defendant is a limited company, the plaintiff may send the summons to the company's registered office or leave the summons at the company's registered office to serve the summons. If the defendant is a partnership, the plaintiff may serve a subpoena on any one or more partners, or anyone who controls or manages the business at its principal place of business. In general, a plaintiff cannot serve a summons on a defendant outside of the jurisdiction unless the court has obtained permission.


B. Originating Summons


An originating summons is usually applicable to a case where there is little or no factual dispute, and the parties only raise legal issues or explanations of certain provisions in legal documents for the court to decide. Originating summons are typically issued for the following actions:

  • Interpretation of statutory requirements; or
  • Interpretation of legal terms withs no substantial factual disputes.

 

Procedures of issuing an Originating Summons

 

The plaintiff should set out in the originating summons a concise statement of the questions which the plaintiff seeks the court to decide or answer, or, a statement of the relief or remedy claimed (where appropriate). The originating summons should also contain sufficient particulars to identify the cause of action in respect of the claim. The procedures for filing and serving an originating summons are similar to those for filing and serving a writ of summons.

 

A defendant who has been served with an originating summons must acknowledge service of the summons as if it were a writ. If the defendant does not file an acknowledgment of service form within the required time, or if in the acknowledgment of service form the defendant states that the proceedings are not contested, the plaintiff still has to proceed to court to have the matter heard. The court will give relief to the plaintiff if it is satisfied that the plaintiff is entitled to such relief. If the defendant has filed an acknowledgment of service, both the plaintiff's originating summons and the defendant’s defence should be supported by an affidavit or affirmation of evidence.


Compared with a subpoena, an originating subpoena is a simpler and faster dispute resolution process because it is generally determined by the affidavit filed and does not involve a pleading or many intermediate procedures.

 

C. Notice of Appeal

 

If the plaintiff or defendant is not satisfied with the decision of the lower court judge, they can apply to the judge for leave to appeal (where required). If a judge refuses to grant leave to appeal, the parties can apply to a higher for that leave. After obtaining permission from the court, or when the appellant has the right to appeal without obtaining prior permission, the appellant shall:

  • Submit the notice of appeal to the court and at the same time send a copy of the notice to the respondent. Sample notice of appeal can be downloaded from the website of the court.
  • Lodge registered a sealed copy of the judgment, ruling appealed.
  • An application to the registrar of the appellant court to determine the date of the hearing of the appeal.
  • Generally, witnesses who gave evidence in the previous trial will not be required to provide further evidence at the appeal hearing. The appellant court will only look at questions of law and not facts in the appeal.

Civil Litigation Document Templates 

 

On the documents to available on DocPro for Civil Litigation. The following table is a quick reference guide:

 

Documents

When to Use

Letter before Action

A letter of ultimatum before taking legal action. This is to be sent after first letter if the defendant does not offer solutions / compensations / deny liabilities.

Writ of Summons / Originating Summons

Writ of Summons / Originating Summons issued by the Plaintiff against the Defendant in a claim of for the Court to make a determination.

Application Notice to Court

Application Notice to Court is a document in which the applicant states his intention to seek a court order. It replaces Summons in certain jurisdictions.

Statement of Claim

Statement of Claim of the Plaintiff against the Defendant relating to a claim to be filed in Court.

Notice of Writ / Originating Motion

Notice of Writ / Originating Motion issued by an Applicant through an Application to the Court to be served on the Respondent. It is an alternative to writ where there is no defendant to the proceeding.

Witness Statement

A witness statement to be filed in court. This is not sworn under oath as opposed to an Affidavit / Affirmation.

Affidavit / Affirmation 

Affidavit / Affirmation filed by a Plaintiff / Defendant / third party who is not the Plaintiff / Defendant in support of / in opposition to a court summons.

Schedule of Medical Reports

A schedule of medical reports to be filed by the Plaintiff. It lists out a description of the medical reports that accompany this document and is filed with the supporting documents alongside the writ.

Notice to Insurer

A Notice to Insurer which is to be filed when a Plaintiff commences proceedings against the Defendant. 

Affidavit / Affirmation of Service of Originating / Writ of Summons

Affidavit / Affirmation filed by the Plaintiff / Plaintiff's agent in relation to the service of other documents to the Defendant.

Acknowledgment of Service of Writ of Summons

Acknowledgement of Service of Writ of Summons by the Defendant. Must acknowledge to indicate if he or she wishes to defend the action and file it with the Registry within 10-14 days of service.

Affidavit / Affirmation to Court Summons

Affidavit / Affirmation filed by the Defendant in opposition to a court summons.

Defence and Counterclaim

Statement of Defence and Counterclaim of the Defendant against the Plaintiff relating to action from the Plaintiff.

Reply and Defence to Counterclaim

Reply and Defence by the Plaintiff to Counterclaim from the Defendant relating to relating to claims by the Defendant.

Brief to Counsel

Brief to Legal Counsel (Barrister) on an Action, generally prepared by the Solicitor.

Documents List

List of Documents to be filed in court, including objection to produce documents and explanation on why certain documents are missing.

Timetabling Questionnaire to be filed after close of pleadings

Questionnaire to be filed with the court to assist in the timetabling of the case. Also useful as a checklist for trial.

Order of Directions of the Court

General form of an order for directions given by the court.

Notice of Court Order

Notice of Court Order to inform / enforce against any interested parties.

Notice of Appeal

Notice of Appeal to be filed at an appellant court appealing for decision / judgement / order made by a lower court.

Respondent's Notice to Appeal

Respondent Notice to contend that the decision below should be varied, or affirmed on different grounds or bringing a cross-appeal against the decision. 

Index to Appeal Bundle

Sample of index of a bundle of appeal to be used in the court of appeal.

  

Keywords:

Notice Of Appeal

;  
Documents
Introduction to Governing Law and Jurisdiction Clauses
Guide
Dispute - Procedure for Expert Determination
Work Completion
Terms of Appointment of Expert Panel
Dispute Resolution
Application Notice to Court
General
Brief to Counsel
Personal Injuries
Defence and Counterclaim (Court)
Quality of Product / Goods
Defence and Counterclaim (Court)
Unpaid Invoice
Documents List (Court)
Court Filing
Index to Appeal Bundle (Court)
Civil Litigation
Listing Questionnaire to be filed before Case Management Conference or Pre-Trial Review
Court
Notice of Appeal (Court)
Civil Litigation
Notice of Court Hearing
General
Notice of Court Order
General
Notice of Originating Motion
Appeal
Notice of Originating Motion
Application
Order of Directions of the Court
General
Originating Summons (Court)
Expedited Form
Originating Summons (Court)
General Form
Petition to Court
General
Reply and Defence to Counterclaim (Court)
Incomplete Work
Reply and Defence to Counterclaim (Court)
Quality of Product / Goods
Respondent's Notice to Appeal (Court)
Defendant Respondent
Respondent's Notice to Appeal (Court)
Plaintiff Respondent
Statement of Claim (Court)
Breach of Contract
Statement of Claim (Court)
Dishonoured Cheque
Statement of Claim (Court)
Quality of Product / Goods
Statement of Claim (Court)
Unpaid Debt
Statement of Claim (Court)
Unpaid Invoice
Statutory Declaration
Court
Timetabling Questionnaire to be filed after close of pleadings
Court
Witness Statement - Court
General Matter
Witness Statement - Court
Party to Litigation
Writ of Summons
Claim by Plaintiff