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 behaviour, 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 is typically issued for the following actions:

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

Procedures for 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 acknowledgement of service form within the required time, or if in the acknowledgement 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 acknowledgement 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, and the ruling was 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. 

D. Civil Litigation Document Templates 

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