Mind Your Legalese: “I will sue you!” – Modes of Initiating a Suit

By Bryan Boo

civil-court-sue-justice

As much as we hope that disputes may resolve themselves on its own or that both parties may come to a common understanding and agreement, it is unavoidable that there will be times where the court’s intervention is necessary. However, with the complexities of law and its procedures, it cannot be faulted when people have the notion that bringing a legal suit is not only expensive but also burdensome. It does not help that the legal world is filled with legal jargon.

So let’s start at the point of the beginning of a legal suit. How does one initiate a suit against another? In Malaysia, there are 2 main modes of initiating a suit – by way of a writ of summons and by way of an originating summons.

Writ of Summons

A writ of summons is usually used where there are material disputes as to facts. The Plaintiff would have to prepare a document known as the writ of summons, which is a formal summons to the Defendant. The writ of summons is usually accompanied by a statement of claim, which details the facts relevant and leading up to the Plaintiff’s claim against the Defendant. A legal action commenced by way of writ of summons will usually lead to a trial.

Originating Summons

Alternatively, one may initiate a legal suit by way of an originating summons. This is usually used where the issue is one of law or where there is no material dispute as to the facts of the case. A legal action commenced by way of an originating summons would normally not have a trial. The matter is usually decided based on documentary evidence which is tendered to court through the affidavits (simply put, an affidavit is a sworn statement of a person). Instead of a trial, the court will fix a hearing to hear the submissions of both parties and then decide accordingly.

However, if the court is of the opinion that there are in actual fact triable issues (which essentially means that there are issues which warrant a trial) or that there are indeed material disputes as to the facts of the case, the court may direct that the originating summons be converted into a writ action.

Conclusion

While it may be confusing (and at times unclear) as to whether or not to initiate a legal suit by way of a writ of summons or an originating summons, your lawyer will usually be able to ascertain the best mode of commencing a legal suit and will be able to advise you accordingly based on the documents and the facts that you have recounted.