High Court Pleadings
Proceedings in the High Court may be commenced by writ of summons, original summons, originating motion or petition as set out by the Rules of the Supreme Court 1980 as amended. A writ of summons applies to most civil claims which involve a full hearing.
Certain statutes provide for proceedings by way of an originating summons. These include, for example, applications to court Inheritance (Provision for Family and Dependents) Order 1979.
In many cases, except for the rules specify, the plaintiff may choose a writ or originating summons. Where the main question is the interpretation of statues, a written document or question of law where there is unlikely to be significant dispute of facts, the originating summons is usually the more appropriate method.
The principal difference is that proceedings commenced by originating summons generally do not require pleadings. Evidence is given by affidavit.
The form of writ is prescribed by the rules including the information it must contain. It is issued under a seal by the Central Office of the Supreme Court. It must be served within 12 months. The court may extend the time for good reasons.
Service may be effected personally on the defendant or his agent or by sending copy by first class post to the defendant’s last known address. Once served, the defendant must enter an appearance within 14 days. In default of the defendant so doing, the plaintiff may proceed to seek a judgment in default of appearance.
An appearance is a memorandum in a form prescribed by the rules. It must be sent to the plaintiff and the court offices.
Where no appearance is made, and the writ makes a claim for a liquidated sum, the plaintiff may apply for final judgment in the amount concerned. The claim is proved by an affidavit and an affidavit of service of the writ.
Default judgment may also be obtained where no defence is entered within the requisite time. Where the writ claims an unliquidated or uncertain amount, the plaintiff may enter an interlocutory judgment for damages to be assessed. The damages are assessed by a Master.
The writ will give very basic information only regarding the claim. More detail is set out in the statement of claim. It must specify the relief sought and the facts constituting the basis of the action concerned.
The defence is the response to the statement of claim. It sets out the basis upon which the defendant claims that at law, not to be liable.
The statement of claim must be served with the writ or within six weeks after the defendant enters an appearance. If this is not done, the defendant may apply to court by way of a motion to dismiss the action.
The defendant must serve his defence on the plaintiff within 21 days after the time for appearing or after the statement of claim, whichever is later. In practice the time limits will be extended by consent in many cases.
Where the defence raises a counterclaim, the plaintiff may answer the defence with a reply. Strictly the reply must be served within 21 days of service if the defence. Time will often be extended by consent.
If the defendant counterclaims the plaintiff and the plaintiff intends to defend the counterclaim, he must serve a defence to it within 21 days of service of the counterclaim. The reply and counterclaim may be included in the one document.
The pleadings are said to be closed after 21 days after service of the reply. If there is a defence to a counterclaim, pleadings close 21 days after the service of the defence to the counterclaims. Otherwise they close at the expiration of 21 days from the service of the defence.
Within six weeks of the close of pleadings, the plaintiff must set down the action for hearing. If the plaintiff does not do so, the defendant may step it down or apply to court to dismiss the case for absence of prosecution.
Once the case is set down, it comes under the court’s control. The case will appear in a provisional list after being is set down. The parties are given a number of week’s notice of inclusion in the provisional list.
A number of weeks in advance of the provisional week, a call over is listed by the appeals and list office staff. At the call over, the parties may fix a date or ask for the matter to be taken and placed on a later list.