Originating summons plays an important role in our civil court system. This article explains what originating summon is and how to use it through different stages of a civil claim.
Understanding Originating Summons Malaysia
Originating summons (OS) in Malaysia is used to initiate civil claims for legal disputes through the court litigation process. With a writ of summons, both these court documents are used to initiate court proceedings in Subordinate Courts (Magistrate Court and Sessions Court) and the High Court of Malaya.
These documents provide the opposing party, the defendant with notice of the claim being made against him and the opportunity to respond.
Subordinate Courts are governed by a written law, the Subordinate Courts Act 1948 while High Courts are governed by the Courts of Judicature Act 1964. These two acts provide for the rules governing the civil litigation process, the main ones being Rules of Court 2012 (‘ROC 2012’).
ROC 2012 governs civil procedure in Malaysia, that is those processes for dispute resolution through court proceedings. Including civil claims initiated through originating summons. On the other hand, ROC 2012 does not apply to proceedings through alternative dispute resolution methods such as mediation and arbitration or foreign proceedings.
Types of Cases Suitable for Originating or Writ of Summons
As explained above, generally there are 2 modes or documents to commence civil legal proceedings in Malaysia, originating summons and writ of summons. Originating summons is more suitable when the matters involve:
No substantial disputes of facts.
Interpretation of matters of law, and documents. Examples include the interpretation of a company's constitution or the rights of shareholders. or trust deed.
On the other hand, legal proceedings are more suitable to be commenced by way of writ of summons in Malaysia when:
The matter involves a substantial dispute of facts.
The initiating party, that is the plaintiff intends to apply for summary judgment in the legal proceedings, that is for judgment without trial (that is without attendance of witnesses).
Civil claim examples that are usually initiated through a writ of summons include:
Matters involving employment law in Malaysia
Tortious claims such as negligence cases
Civil action where the plaintiff intends to apply for interim injunctions (that is to order the other party to do or prohibit from doing something).
Claim amounts do not affect which mode to start with. Furthermore, cases initiated through originating summons usually do not require the attendance of a witness in court. However, for writ action, the witness is required to attend court to give evidence.
Although most civil matters are initiated through originating or writ of summons, some other matters are not initiated through either of them, such as judicial review proceedings or divorce proceedings as it is governed by a different rule.
Proceeding Through Originating Summons
When there are contemplated court proceedings for a civil claim through the litigation process, the plaintiff must first identify whether the matter is more suitable to be initiated through originating summons or writ of summons.
If it is initiated through an originating summons, the following processes usually follow:
Step 1: Prepare Originating Summons
The Plaintiff must prepare the originating summons which include the following details:
A concise statement of the nature of the claim and relief or remedy claimed. This means the outcome that the plaintiff is seeking from the court.
Grounds and particulars such as dates to support the claim.
If the plaintiff has documentary evidence, then he can enclose these documents in an affidavit of support as exhibits. This affidavit provides more details on the grounds to support the claim.
As to the query on ‘writ of summons vs originating summons’, many of the differences are in the different types of court papers or documents used. As the originating summons is supported with an affidavit in support, the writ of summons is supported with a statement of claim.
Step 2: Filing and Service
After the originating summon has been prepared, the next step of the litigation process continues with the filing of the document with the court registry. The courts will then put an official seal indicating that it has been officially filed.
After that, the plaintiff should serve the originating summons on the defendant. If it is an individual defendant, it can be effected through personal service or by AR registered post to the last known address of the defendant, which is usually the place of residence.
The service of the writ follows the same too. The plaintiff or its lawyer should have this information beforehand and usually the affidavit in support is served together with the originating summons.
If the plaintiff faces difficulty in the service, then he can apply to the court for substituted service, that is service through different methods such as publication in local newspaper and court notice board.
On the other hand, the method of service on a foreign defendant varies depending on whether there is a Civil Procedure Convention in that foreign country for service of our country’s court documents.
Step 3: Respond and Answer
Once the originating summons has been served on the defendant, the defendant has 21 days to respond by filling and serving an affidavit in reply to the plaintiff. This affidavit is a written statement that outlines the defendant's side of the case.
After the plaintiff receives the affidavit in reply, he can further reply by filing and serving another affidavit in answer to the defendant which the affidavit must be filed within 14 days of receiving the affidavit in reply.
As for matters initiated by writ of summon, the defendant must first enter an appearance by filing a memorandum of appearance, that is a document indicating he intends to contest the matters. He then sets out his version of the case in the statement of defence, which is part of court documents called ‘pleadings’.
Step 4: Hearing and Judgment
The next step of the civil actions continues with:
Preparation before the hearing
Before the hearing, the courts will schedule a few sessions to ensure all documents, such as affidavits have been filed and served. For the matters initiated through writ of summon, these sessions are known as pre-trial case management.
Trial
For writ action, the courts usually need the witness to give evidence in open court proceedings. This is usually done through written statements and the witnesses then attend the courts to be questioned and cross-examined by the defendant or plaintiff’s lawyer.
However, for matters initiated through originating summons, there is generally no need for witness attendance as the evidence has been given through the supporting documents in an affidavit in support.
Hearing and Judgment
After that, then the courts will make the judicial determination on the legal disputes by the judge giving court order. The dissatisfied party can appeal against the order to the higher court while the winning party can enforce the order through enforcement proceedings.
Hiring Lawyer and Costs
If you are involved in a case where you have received an originating summons, it is advisable to seek legal help. A lawyer can guide you through the process, raising any preliminary objection if there is an irregularity in the court documents, and then represent you in court.
If you have questions on court procedure, our dispute resolution lawyers from our dispute resolution practice group can help and provide you with legal representation in the case.
The cost for legal action involving originating summons in Malaysia can differ depending on several factors. These include the complexity of the case and the time required.
Apart from the legal fees, there are also court fees to consider. These are set by the court and differ depending on the facts of the case. It is important to discuss the potential charges with the lawyer at the outset. You can contact us for a quote.
Conclusion
Originating summons in Malaysia plays an important part in dispute resolution for civil action, especially for disputes that do not involve substantial dispute of facts. If you need any assistance, do contact us and we will assist you.
Frequently Asked Questions
1. What is originating summons in Malaysia?
An originating summons is a legal document used to initiate certain types of civil action in Malaysia. It is suitable when the matter involves no substantial dispute of facts.
2. What is the difference between writ and originating summons in Malaysia?
An originating summons is more suitable when the case does not involve a substantial dispute of facts. A writ is more suitable when there are material disputes on facts as it requires witnesses to attend court to give evidence.
3. What is the mode of service of summons in Malaysia?
If it is service on an individual defendant, originating and writ of summons have to be served personally on the defendant or through AR registered post. If the plaintiff is unable to serve, then he can apply to the court for substituted service, that is service through other methods.
4. Is AR registered post personal service?
No. It is not, AR registered post is a type of service through a prepaid registered post that requires acknowledgment by the receiver.