Cause of Action and Form of Proceedings

The cause of action determines the form of the proceedings to be taken in Court. Order 5 r 1 of the Rules of the High Court provides that, subject to the provisions of any written law and of these rules, civil proceedings in the High Court may be begun by :

(a)Writ of Summons (W/S); or

(b)Originating Summons (O/S); or

(c)Originating Motion (O/M); or

(d)Petition.

However, the above general rule is ‘[s]ubject to the provisions of any written law.’ This means that when a written law lays down the form for the proceedings to be taken, that provision must be followed – for example, divorce petitions and companies winding up petitions, etc.

The above general rule is also ‘[s]ubject to (the provision) of these Rules.’ This means that where the Rules provide for a special mode, that provision is to prevail over the provisions of this order. For example, a charge action under O 83 is to be by writ or O/S and contentious probate proceedings under O 72 r 2 must be begun by writ.

Otherwise, the provisions of O 5 determine the form or the mode of the civil proceedings in the High Court in the prosecution of the plaintiffs’ claims.

A WRIT OF SUMMONS is generally to be used for:

(a) an action in tort, other than a claim based on fraud;

(b) claims for damages for breach of duty and personal injuries;

(c) claims for breach of promise of marriage; and

(d) claims for infringement of a patent.

An ORIGINATING SUMMONS is:

(a) obligatory, in applications to the High Court under any written law;

(b) discretionary, where:

(i)the sole or principal question at issue is the construction of any written law or of any

instrument under any written law or of any deed, contract or other document or of

some other question of law; or

(ii)where there is unlikely to be any substantial dispute of fact (for example, trespass to

land).

An ORIGINATING MOTION is to be used when required by any written law or by the Rules (for example, O 88 r 4). An example of an application which must be made by originating motion is an application for an order to confirm a winding-up resolution.

A PETITION is similarly to be used when required by any written law or by these Rules (for example, O 88 r 5). An example is an application to cancel the alteration of a company’s objects or an application for a shareholder’s relief in cases of oppression.

Writ of Summons and Originating Summons
An action in Court under the Rules of the High Court is adversarial in nature. In other words, it is a contest between two or more parties. Two types of forms of a Writ of Summons are:

(i)Form 2; which is an ordinary writ for service within the jurisdiction of the Court.

(ii)Form 3; which is for service of the writ outside the jurisdiction, which requires the leave of the Court.

Parties

It is necessary to determine whether the party suing (the plaintiff) or the party sued (the defendant) :

(a) is sui juris (of the age majority; and
(b) is in compos mentis (in his right mind); and
(c) is acting personally (ie pursuing his own claim) pr in s representative capacity.

If the plaintiff is an infant or a patient as defined in the Mental Disorders Ordinance 1952, he/she is considered to be under disability and can only sue by his/her next friend. If such a person is sued, he can only defend by his guardian ad litem.

If a party acts in a representative character, for example, as the legal personal representative in an administration action, that representative character must be clearly and precisely shown. Any person whether or not he sues as a trustee or personal representative or in any other representative capacity may act in person or by a solicitor. Two or more persons claiming to be partners in respect of a cause of action may sue or be sued in the name of the partnership firm.

If the plaintiff dies, the executor or the administrator of his estate will be the person to apply for the order to carry on with the proceedings. When one or two or more plaintiffs die, if he cause of action is a joint one, the surviving plaintiff or plaintiffs can continue the action without adding the personal representative of the deceased plaintiff. If the action is not a joint one, the personal representative of the deceased plaintiff may obtain an order to carry on with the proceedings.

In the case of the death of the defendant, if he is the sole defendant and the cause of action is one that survives, the plaintiff may apply for an order to continue the proceedings against the executor or administrator of the deceased defendant. Alternatively, the executor or administrator may apply to be substituted for the defendant. Until and unless such executor or administrator is added or substituted, the action cannot be continued.

An Introduction To Civil Procedure

Some understanding of civil procedure can go a long way in helping bankers understand the mechanism of loan recovery. Although at this stage the process of loan recovery will be in the hands of the bank’s lawyers, a little understanding of the mechanism may help the bankers to decide on and give proper instructions to their lawyers.

Knowledge of civil procedure is of paramount importance if the process of loan recovery is to be a success.

In SA Andavan v Registrar of Land Titles, Negeri Sembilan [1977] 2 MLJ 222, Ajaib Singh J (as he then was) advised as follows :

… parties in a civil suit should observe the rules of procedure with mericulous care because failure to do so may well result in irreparable set-backs for them and it is not often for the court to take it upon itself to free the parties from difficulties of their own making and put them on their feet again.

For the purposes of recovery of a debt, secured or otherwise, a civil action is commenced. The rules and procedures in respect thereof are governed by the Rules of the High Court 1980 for actions in the High Court and actions in the Subordinate Courts are governed by the Subordinate Courts Rules 1980. The rules and procedures in the High Court are basically similar to that in the Subordinate Courts.

Civil procedure regulates all proceedings in Court. The Rules of the High Court 1980 (which came into force on 1 April 1980) provides for the ‘just, expeditious and economical’ disposal of such proceedings.

When a lawyer is consulted regarding litigation, his client is in effect seeking advice as to his rights and obligations on the facts pertaining to his claim or the claim against him. The lawyer will then decide whether the case is contentious or non-contentious. A contentious case will involve a trial. A non-contentious case does not involve the trial of an action.

On receiving instructions from the client, the lawyer will determine :

(a) whether an action in Court or an application to Court is necessary;
(b) the parties to the action or application;
(c) the cause of action; and
(d) the proper relief or claim sought by the client.

In other words, the lawyer takes instructions from the client and on those instructions he/she determines the cause and the form of action properly to be taken in accordance to civil procedure.

Loan Recovery

It has often been said that to lend money is easy but to recover it is something else. Loan recovery is of great concern to bankers.

Recovery of unsecured loans also occurs in situations where the bankers are suing the guarantors of the loan. In a normal loan agreement secured by guarantee, the principal debtor and the guarantor is usually made jointly and severally liable for the loan and in such a situation, the guarantors are usually personalities of some means and it is only natural that bankers would proceed against the guarantors with the hope that the loan advanced can be recovered.