Understanding the Law
October 15, 2004

Proceedings in court

Starting proceedings in the civil division of the High Court

Under the new Civil Procedure Rules (CPR2000), proceedings are started in court either by a claim form (Form 1) or a fixed date claim form (Form 2). These are prescribed forms that are included in (CPR2000). Other matters pertaining to a case that is not yet started or is already in court may be brought before the court by way of applications on the Form 6. Proceedings could also be started under any enactment with its own rules; for example divorce is started by way of petition under the Matrimonial Causes Act. {{more}}

Most proceedings in the civil courts are started by claim forms (under the old rules it was a writ of summon) and for that reason I will start with the procedures in relation to a claim form.

The claimant must file an original copy and a copy for sealing of the claim form in the court office. Other copies may be provided for the court’s stamp. The claim form must include information as to where service of documents will be accepted on behalf of the claimant. The name, address, telephone and fax number of the legal practitioner must be included if the claimant is represented. He must state briefly the nature of his claim and any specific amount or the remedy he is seeking. A statement of claim may only be filed afterwards in special circumstances. The claim form may be accompanied by an affidavit or other document if a practice direction requires it. A certificate of truth sworn to by the claimant or the legal practitioner must accompany the statement of case. The legal practitioner must certify that he was instructed by the client to sign and he must give the reasons why the client did not sign the certificate of truth.

The claim form receives the seal of the court and is thereafter served with copies of acknowledgement of service and defence forms by a process server upon the defendant. The defendant must within 14 days (28 days outside the jurisdiction) file the acknowledgement of service with a statement of intention to defend if he opposes the claim. He can admit and indicate intention to settle.

After the acknowledgement of service is filed, the court office informs the claimant of its receipt. Failure of the defendant to acknowledge service would give the claimant the right to request a default judgment. After the defendant acknowledges service he must follow up with a defence.

A defence (with a counter-claim if appropriate) is due within 28 days of the service of the claim form (42 days outside the jurisdiction). Failure to file a defence will lead to an award of default judgment to the claimant. The claimant must apply to the court for a default judgment. The application is granted if the claimant could show that the claim form was served on the defendant and the time for service has expired. An affidavit from the process server to attest to the fact that the defendant was served the claim form must be filed. The Registrar of the High Court grants orders for default judgments.

Four to eight weeks after the defence is filed the case is placed before the Master for case management. Depending on the complexity of the case, further case management may be ordered. The Master, in the presence of counsel and the parties, would fix a date for trial. He would also decide on the length of the trial and the number of witnesses. The case is thereafter listed for trial.