Originating Summons: What It Is and How to File in Singapore
What is an Originating Summons?
A civil action generally refers to actions taken to commence civil proceedings. It involves private parties, where the State is not a party to the proceedings. This is as opposed to a criminal action commenced by the Public Prosecutor (who represents the State).
In a civil action, the parties are referred to as the plaintiff and the defendant. The plaintiff is the party initiating legal proceedings, and the defendant is the party who is subject to the legal proceedings.
When is an originating summons used?
An originating summons must be used where:
- It is required by statute; or
- An application is to be made to the court or a judge thereof under any written law.
An example of such a requirement by statute is in the Companies (Winding Up) Rules, which requires that every winding up application be made by originating summons.
On the other hand, an originating summons may be used, and would be appropriate to be used, where:
- The sole or main question at issue is the interpretation of a written instrument or statutory provision; or
- The dispute is concerned with matters of law in respect of which there is unlikely to be any substantial dispute of facts.
However, if it turns out later that there is a substantial dispute of fact, an action initially commenced by originating summons may be converted into a writ action (i.e, an action commenced by a writ of summons).
For example, an application for division of matrimonial assets is ordinarily made by originating summons according to the Women’s Charter, but if one party to the divorce discovers subsequently that the other has hidden certain assets, and the latter contests it, there would be a substantial dispute of fact and hence the action would need to be converted into a writ action.
The effect of converting an originating summons action into a writ action is that different procedures apply.
While the originating summons is a simpler and quicker process for resolving disputes, as the dispute will be determined on the affidavits filed along with the summons, the process of a writ action involves pleadings and possibly also other interlocutory proceedings.
Types of originating summons
There are a few types of originating summons which can be filed, depending on the nature of the case, and the relevant statute. The different types include:
- Originating Summons (General)
- Originating Summons (Judicial Management)
- Probate and Administration or Legislation
- Originating Summons (To Commence Divorce Within Three Years of Marriage)
- Originating Summons (Family) (Enforcement of Syariah Court Order)
- Originating Summons (Family) (Mental Capacity)
- Originating Summons (Family) (Guardianship of Infant)
- Originating Summons (Family) (Division of Matrimonial Assets During Marriage)
How to Prepare and File an Originating Summons
Form of the originating summons
According to the Rules of Court, all originating summonses must be in Forms 4 or 5, supported by an affidavit.
Form 4 is to be used for inter partes originating summonses, whereas Form 5 is to be used for ex parte originating summonses. The main difference between inter partes and ex parte applications are the parties who are involved in the proceedings.
Inter partes means that one or more parties are being served with the application, therefore there are two “sides” to the proceedings. Ex parte means that no other party is being served with the application, and the application is made to the court only.
For example, the issue of division of matrimonial assets (involving the former husband and wife) would be an inter partes action, whereas applying to the court for a Grant of Probate (involving the executor only) would come under an ex parte application.
Contents of the originating summons
According to the Rules of Court, all originating summons must include:
- A statement of the questions on which the plaintiff seeks the determination or direction of the court; or
- A concise statement of the relief or remedy claimed in the proceedings, with sufficient details to identify the causes of action by which the plaintiff is claiming that relief or remedy.
Additionally, other requirements to note are:
- If the plaintiff or defendant is suing/being sued in a representative capacity, the originating summons must be accompanied by a statement of the capacity in which he sues/is being sued.
- Where the plaintiff sues by a solicitor, the originating summons must include the plaintiff’s address, the solicitor’s name or firm, and the solicitor’s business address.
- Where the plaintiff sues in person, the originating summons must include the address of the plaintiff’s place of residence and his occupation.
Procedure for filing of the originating summons
If you have legal representation, your lawyers will file the originating summons on your behalf via the e-Litigation platform.
If you are unrepresented, you will have to file the originating summons yourself at either the LawNet Service Bureau in the Supreme Court building, or the LawNet & CrimsonLogic Service Bureau at Chinatown Point. You may refer to this webpage for more information on their locations.
The fees for filing an originating summons can be found in Appendix B of the Rules of Court. The exact fees will vary depending on which court the proceeding is commenced in. Generally, where no other fee is specifically provided, it costs:
- $100 to file in the Magistrate’s Court;
- $150 to file in the District Court;
- $500 to file in the Supreme Court where the value of sums claimed is $1 million and below; and
- $1,000 to file in the Supreme Court where the value of sums claimed is above $1 million.
Duration of the originating summons
After the originating summons has been filed, the Registrar will assign a serial number to it, and will sign, seal and date the summons upon which is deemed to be issued.
The date of issue is important because the originating summons is generally only valid for 6 months from that date. Only where a summons is to be served out of jurisdiction, will it be valid for 12 months from the date of issue.
If the plaintiff does not or is unable to serve the summons within the validity period, he has to apply to the court to extend the validity period. The court may then decide to extend the period by up to 12 months at a time.
Failure to serve the summons within the validity period will result in the plaintiff being unable to get a judgment against the defendant.
What Happens After Filing an Originating Summons?
The process after filing an originating summons would take place in the following manner:
After all of the above, the originating summons will be heard in chambers, which refers to a closed hearing attended by only the judge, the parties, and the parties’ lawyers, as opposed to in open court. The court may then:
- Make an order in favour of the plaintiff;
- Make an order to dispose of the matter commenced by originating summons;
- Ask for further evidence to be filed; or
- Make an order for the hearing or trial of the matter
As the filing of the originating summons is the first step in starting a civil action, it is crucial that the requirements mentioned above are strictly adhered to.
If there is an irregularity in the originating summons, e.g. if the correct form has not been used, or if the deadlines have not been adhered to, the defendant may dispute the jurisdiction of the court.
What this means is that the defendant is saying that the court has no power to hear the matter, and may apply to set aside the originating summons. If the defendant succeeds, the plaintiff would not be able to proceed with his/her claim.
In order to avoid such irregularities, you should engage a litigation lawyer to prepare the originating summons on your behalf. Your lawyer will also be responsible for filing the originating summons, serving the summons, and following up with any necessary filings thereafter.
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