Originating summons

Information

Usually proceedings are issued in the High Court by an originating summons.

After the summons has been prepared by your barrister, your solicitor will take it to the Central Office to be "issued" - this involves paying the stamp duty. After the stamp duty has been paid, the summons is stamped and it is ready to be served on the Defendant.

There are three types of originating summons:

• Plenary summons. This type of summons is used to commence proceedings where there is a real dispute between the parties and/or the amount of the Plaintiff's claim is not specific or easy to calculate. For example, a plenary summons may be used where the Plaintiff claims that he or she was injured in a road traffic accident due to the Defendant's negligence. When a plenary summons is issued, the next step is for the parties to exchange pleadings (see Statement of Claim and Delivering the "Defence" in a civil case). Eventually, the case will be given a date for a trial and there may be evidence given by witnesses.
• Summary summons. This type of summons is used when the amount of the Plaintiff's claim is easily quantifiable and the Defendant does not have any valid defence. For example, a summary summons may be used where the Plaintiff claims that he or she lent the Defendant a specific amount of money that has not been repaid. "Summary" proceedings do not involve pleadings and do not end in a trial with evidence given by witnesses. It is a fast-track procedure where the judge decides the case after reading affidavits submitted by both sides. However, if it becomes clear to the judge that the Defendant has a stateable defence to the claim, the judge may order that the case be dealt with as "plenary proceedings". This means that pleadings will be exchanged and the matter may go to trial.
• Special summons. This type of summons is used for cases that involve pure issues of law or very specific issues of fact. For example, a special summons will be issued to commence a claim relating to the administration of the estate of a deceased person. Like summary proceedings, this is a fast-track procedure where the judge decides the case by reading affidavits submitted by both sides.

To serve an originating summons, a copy of the summons must be handed to the Defendant and he or she must be shown the original. The summons can be served on the Defendant's solicitor if he or she accepts service on behalf of his/her client and is authorised to do so.