10. How do I start a civil action by issuing an originating summons?
Set out below is some basic information regarding civil actions commenced by an originating summons. Due to the complexity of the procedures, you are strongly recommended to appoint a lawyer to represent you.
An overview of a civil action begun by an originating summons
The following chart is made with reference to the website of the Judiciary's Resources Centre for Unrepresented Litigants. It shows the major steps for an action begun by way of an originating summons.
Filing a supporting affidavit or affirmation by the plaintiff
Filing an affidavit or affirmation to oppose by the defendant
Filing an affidavit or affirmation in reply by the plaintiff
i. Filing of an Originating Summons by the plaintiff
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 which he claims the relief or remedy.
The procedures for filing and serving an originating summons are similar to those for filing and serving a writ of summons. For details, please go back to question 9.
ii. Filing of acknowledgment of service by the defendant
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.
iii. Plaintiff's affidavit/affirmation
If the defendant has filed an acknowledgment of service, the plaintiff's originating summons should be supported by an affidavit or affirmation of evidence. In that case, the plaintiff has to file an affidavit or affirmation in support of the originating summons within 14 days after the defendant has acknowledged its service. Explanatory notes for preparing an affidavit or affirmation and a sample affidavit / affirmation can be obtained from the website of the Resource Centre for Unrepresented Litigants.
iv. Defendant's affidavit/affirmation
Where a defendant who has acknowledged service wishes to submit evidence, he must, within 28 days after service on him of the plaintiff's affidavit or affirmation, file his own affidavit or affirmation. Please refer to point (iii) above for guidelines on how to prepare an affidavit/affirmation.
v. Plaintiff's affidavit/affirmation in reply
If the defendant serves an opposing affidavit or affirmation on the plaintiff, the plaintiff may within 14 days of such service file a further affidavit or affirmation to reply to the defendant's affidavit or affirmation. No further evidence can be filed unless special leave (permission) is granted by the court.
The defendant may make a counterclaim in the same proceedings instead of bringing a separate action.
vi. At the hearing
At the hearing, the plaintiff will make his submission first (i.e. telling his arguments to the court), followed by the defendant's submission in opposition. The plaintiff has the right of final reply. The court will either make a decision after the hearing or reserve it to be given later.
(Note: Unless the court makes an order that the persons who have made the affidavits or affirmations have to attend court for cross-examination, they are not required to attend court at the hearing. If the court has made such an order, these persons must attend court to be cross-examined. The procedure will be similar to the trial of an action commenced by a writ of summons. For details, please refer to question 3 in section VII.