- One of the most important decisions a litigation attorney must make is whether his/her client’s case must be moved by motion proceedings or by action proceedings.
- The procedures in respect of action proceedings may differ slightly from court to court as every court has its own procedures and directives. This guide is not intended to present a full and exhaustive discussion of action proceedings and is only intended to present a brief description of this process.
- Action proceedings are instituted by the issuing of a summons. A summons consists of the actual summons itself and a document which is commonly referred to as a “particulars of claim”. The particular of claim sets forth the plaintiff’s claim and contains all the averments necessary for a plaintiff’s case to succeed and the success of a prospective litigant is largely dependant on the skill, knowledge, and diligence with which his/her attorney, drafted this important document.
What Happens After A Summons Has Been Issued?
After the summons has been issued, the sheriff of the court will serve it on the defendant.
A defendant is granted a certain number of days within which he must indicate whether he intends to defend the plaintiff’s case and he/she will do so by the delivery of a notice of intention to defend.
Should he defend fail or neglect to file a notice of intention to defend the plaintiff may approach the court for a default judgment. These matters are commonly referred to as unopposed matters.
After the filing of his/her notice of intention to defend, the defendant is obliged to file a plea. A plea, in essence, sets forth the defendant’s defense to the plaintiff’s case. A defendant’s success in defending the plaintiff’s case will once again, largely depend on the skill, knowledge, and diligence with which his/her attorney, drafted this important document
The defendant may also file a counter-claim against the plaintiff and if he/she does so, the plaintiff will have to file a plea in response thereto.
All the parties will hereafter be obliged to compile a list of all documents, that relates to the case, and make it available to the other litigants. This process is commonly referred to as discovery. Failure to discover any document may lead to this document becoming inadmissible during the trial of the matter.
A trial date will thereafter be set by the registrar of the court. Each litigant will be entitled to present his/her case during the trial by producing evidence, calling witnesses, calling expert witnesses, and by presenting a legal argument.
The court will consider all evidence and arguments presented to it during the trial and subsequently grant an order. This order will usually include an order that one litigant is to pay the legal costs of the other litigant.
The action procedure includes various complicated processes, which are not discussed in this document and it is highly recommended that prospective litigants obtain the services of a knowledgeable and experienced litigation attorney to assist them in litigation.
