Writ of summons in Malaysia plays an important role in our civil court system. This article explains what is writ of summons and how to use it through different stages of a civil claim.
What is Writ of Summons in Malaysia?
A writ of summons in Malaysia is a formal court document used to initiate civil claims in Malaysia. It is usually used when It is used when the claim involves substantial dispute of facts.
Together with a originating summons, both these court documents are used to initiate court proceedings in Subordinate Courts (Magistrate Court and Session Court) and the High Court.
These documents provide the opposing party, the defendant with notice of the claim being made against him and the opportunity to respond for resolution and determination of legal disputes and administration of justice.
Subordinate Courts are governed by the Subordinate Court Act 1948 while High Courts are governed by the Courts of Judicature Act 1948. These two statutes/acts provide for the rules governing the civil litigation process, the main ones being Rules of Court 2012 (‘ROC 2012’).
ROC 2012 governs civil procedure in Malaysia, that is those processes for dispute resolution through court proceedings, including civil claims initiated through writ and originating summons.
Types of Cases Suitable for Writ of Summons or Originating Summons
As explained above, generally there are 2 modes or documents to commence civil legal proceedings in Malaysia, writ of summons and originating summons. Writ action is more suitable when:
The dispute involves a substantial dispute of facts.
The initiating party, that is the plaintiff intends to apply for summary judgment in the legal proceedings, that is for judgment without trial (that is without attendance of witnesses).
Originating summons is more suitable when the nature of the claim involves:
No substantial disputes of fact
Interpretation of matters of law and documents.
Originating summons in malay means ‘saman pemula’. As part of civil procedure in Malaysia, civil claim examples that are more suitable to be commenced by way of writ of summons include:
Matters involving debt recovery in Malaysia (usually after the issuance of a letter of demand)
Civil actions where the plaintiff intends to apply for interim injunctions (that is to order the other party to do or prohibit from doing something).
Under the law, the claim amounts do not affect which documents to use to start the claims. Furthermore, cases initiated through writ action require the witness to attend court to give evidence. Matters initiated through originating summons usually do not require the attendance of a witness in court.
Although most civil matters are initiated through originating or writ of summons, some other matters for dispute resolution are not initiated through either of them, such as judicial review proceedings in Malaysia (for dissatisfaction against government authority’s action) as it is governed by a different rule.
Steps to Issue a Writ of Summons
When there are contemplated court proceedings for a civil claim through the court process, the plaintiff must first decide whether the procedures are more suitable to be initiated through writ of summons or originating summons
If it is initiated through a writ of summons, the following processes usually follow:
Step 1: Prepare Writ of Summons and Statement of Claim
The Plaintiffs must prepare the court documents writ of summons and statement of claim. Writ of summons should include the following details:
(a) A concise statement of the relief or remedy claimed. This means the outcome that the plaintiff is seeking from the court.
(b) If the plaintiff sues through legal representation such as lawyer, then it should state the law firm’s name and business address. If the plaintiff self-represents, then it is the plaintiff’s place of residence.
The statement of claim should state amongst others, the following:
(a) Nature of the claim
(b) Grounds and particulars to support the claim
The statement of claim is part of court documents called ‘pleadings’ that is used to state the grounds and particulars of the matters to support the claim.
As to the query on ‘writ of summons vs originating summons’, many of the differences are in the different types of court documents used. As the the writ of summons is supported with a statement of claim, originating summons is supported with an affidavit in support where documentary evidence is enclosed together as exhibits to support the claim..
Step 2: Filing and Service
After the writ of summon has been prepared, the next step of the legal process continues with the filing of the document with the civil court in Malaysia, through the court registry. The courts will then affix an official seal indicating that it has been officially filed.
After the issuance of the writ of summons, the plaintiff should serve a copy of the writ of summons on the defendant. If it is an individual defendant, it can be served through personal service (served personally by hand) or by AR registered post to the last known address of the defendants, which is usually the place of residence.
The validity of the writ is 6 months from its issuance, thus the service should be performed within that time. If the plaintiff faces difficulty in the service, then he can request and apply to the Malaysian courts for substituted service, that is service through different methods such as publication in local newspaper and court notice board.
On the other hand, the method of service on a foreign defendant varies depending on whether there is a Civil Procedure Convention in that foreign country for service of our country’s court documents.
Step 3: Respond and Answer
Once the writ of summons has been served on the defendant, the defendant has 14 days to file a memorandum of appearance (MOA). MOA is a document indicating that the defendant intends to contest the civil action.
If defendant fails to file MOA, the plaintiff can proceed to enter a judgment in default of appearance (‘JID’) against the defendant. JID is a default judgment obtained without contest and objection as the defendant fails to contest by filing a MOA.
And within 14 days from the expiry of the time to file MOA, the defendant should file a statement of defenence. This statement indicates the grounds of objection by the defendant and if the defendant has a claim against the plaintiff, the defendant should add that claim in a counterclaim.
After the plaintiff receives the statement of defence, he can further reply by filing and serving another statement in-reply to the defendant which the statement must be filed within 14 days of receiving the statement of defence.
Step 4: Hearing and Judgment
If the civil matters involved is a simple matter and without dispute, then the plaintiff can file an application for a summary judgment. Summary judgment is a judgment obtained without requiring the attendance of witness as the evidence is given by documentary evidence.
If the matter is more complex, the next step of the litigation processs continues with:
(a) Preparation before the trial
Before the hearing, the courts will schedule a few sessions to ensure all court papers and documents are filed. The relevant documents and papers to prepare include witness statements and certain documents related to the matters. These sessions are known as pre-trial case management.
In case of urgency, the parties can apply for an injunction order in Malaysia. Injunction is an order of the court directing a party to do or prohibit from doing something.
(b) Trial
For writ action, the court will set a date for the full trial. The trial procedures require the witnesses to give oral evidence in open court proceedings. This is usually done through prepared written statements and the witnesses then attend the courts to be questioned and cross-examined by the defendant or plaintiff’s counsel/lawyer on the contents of the documents or statements.
However, for claims initiated through originating summons, usually there no need for witness attendance as the evidence has been given through the supporting documents in an affidavit in support, although there is court hearings too.
(c) Hearing and Judgment
After the trial, the next process continues with the judge hearing oral submissions from the parties’ counsel. This contains arguments from the parties on why the judges, including the magistrates should decide in their favour.
After that, then the courts will decide on the legal disputes by the judge giving court order.
(d) Enforcement and appeal
After the judgemnt is given, the dissatisfied party can appeal against the order through the civil court system to the higher court such as High Court of Malaya.
If the losing party fails to comply with the court order despite plaintiff having obtained a judgment against him, then winning party can enforce the order through enforcement proceedings. Few of the execution methods include:
(i) Garnishee proceedings
This involve obtaining a garnishee order which orders 3rd party who owes money to the judgment debtor to pay that money directly to the judgment creditor. This is suitable when the judgment orders for payment of money or debts.
(ii) Writ of delivery
This is for delivery of movable property where the court orders the losing party to deliver movable properties to the winning party.
(iii) Writ of possession
This is for the losing party to surrender vacant possession of the land or property to the winning party.
(iv) Charging order
This is to register a charge on the losing party’s assets such as shares where the shares cannot be sold without first paying off money ordered to be paid under the judgement, called as ‘judgment debts’.
(v) Bankruptcy action
This orders the judgment debtor to be declared bankrupt and all properties to be sold off to pay the judgment debts.
Hiring Lawyer and Costs
If you are involved in a case where you have received a writ of summons, it is advisable to seek legal help as soon as possible. Our dispute resolution lawyers can guide you on the disputes and represent you in the legal proceedings.
Furthermore, if you hve any queries on the court procedure and legal system, we will assist you with it. The charges for legal action through writ of summons in Malaysia can differ depending on several factors. These include the complexity of the case, the time required, and the circumstances of the case
Apart from the legal fees, there are also court fees to consider. These are set by the court and differ depending on the facts of the case. It is important to discuss the potential charges with the lawyer at the outset. You can contact us for a quote.
Conclusion
Writ of summons in Malaysia plays an important part in dispute resolution for civil action, If you need more information or legal advice, do contact us and we will assist you.
Frequently Asked Questions
1. What is the meaning of writ of summons?
A writ of summons is a legal document used to initiate certain types of civil action in Malaysia. It is suitable when the matter involves affidavit in support
2. How to serve a writ of summons in Malaysia?
If it is service on an individual defendant, writ of summons have to be served personally on the defendant or through AR registered post. If the defendant is a company, then the service can be done by leaving the copy of writ of summons at the registered address of the company.
3. What is the difference between writ and originating summons in Malaysia?
A writ of summons is more suitable when there is a substantial dispute on facts. An originating summons is more suitable when the case does not involve a substantial dispute of facts.
4. What happens if I don't respond to a writ summons?
If you don’t’ respond to a writ of summons, then the plaintiff can obtain a judgment in default of appearance against you. It is a judgment obtained without your objection and the plaintiff can enforce the judgment against you.
