How to commence an action for claim, is it by way of Writ Action or Originating Summons:
An analysis
Preliminary Considerations Before Filing a Claim
Before choosing the mode of commencement, we should take into consideration the following:
• Cause of action: Ensure there is a proper legal basis.
• Limitation period: Confirm that the claim is filed within the prescribed time.
• Evidence: Identify key documents and witnesses.
• Costs: Be aware of filing fees, time involved, and possible adverse costs
Initiating a Claim: Mode of commencement
Rules of Court 2012 (“ROC 2012”) provides two (2) main ways to commence civil proceedings.
A civil claim against a party can be commenced either by a Writ of Summons 1 (“Writ”) or
Originating Summons2 (“OS”), both of which will remain valid for a period of 6 months from the
date of its issue.
1. Commencing a legal proceed either by:
Writ of Summons (Writ Action) Originating Summons (OS)
When to use: When:
• Used when there is a substantial • Where there is no substantial
dispute of facts.3 dispute of facts.
• Common in tort, contract, • Typically used for matters of law or
commercial, and personal injury interpretations, declarations, or
claims. applications under specific statutes
(e.g. trusts, company law,
administration of estates)4.
Features: Features:
• Must be endorsed with a Statement • Must be filed with Affidavit in
of Claim or brief description of relief Support (exhibiting supporting
sought (what is your claim or the documents).
relief/remedy you seek).5 • Heard by a Judge, usually via
• Requires pleadings and may involve affidavit evidence only.
full trial with witnesses. • No pleadings required (unlike writ
• Defendant must enter appearance actions).
within specified days. • More streamlined and faster
process.
1
Form 2 of the Rules of Court 2012
2
Form 5 or 6 of the Rules of Court 2012
3
O. 5, r.2 Rules of Court 2012
4
O. 5, r.3 Rules of Court 2012
5
O. 6, r.2 Rules of Court 2012
Task 1: How to commence an action for claim?
Service of Writ: Service timeline:
• Personal service or AR registered • OS must be served within 6 months
6
post. of filing.
• If unsuccessful, apply for substituted
service.
Other requirements:
• Must include plaintiff’s address (or
local address for service).
• Commences with issuance and
service; must proceed to pleadings
and trial.
Once Writ or OS is served
Once a Writ is served on the defendant, the If commenced by OS, defendant is not
defendant has 14 days to file a required to enter a memorandum of
memorandum of appearance, failing which a appearance.
default judgement may be entered against
him. Instead, they file an Affidavit in reply if they
wish to contests the OS, usually within a
fixed time after service of the OS and
affidavit in support.
2. Pleading stage in Writ Actions vs Process for OS:
Pleadings are basically written documents which must be filed in court by the parties, which
sets out the respective cases of the parties. Pleadings contain, material facts which make up
the basis of the claims or the defence to the claim, together with the reliefs sought by the
parties.
Writ of Summons (Writ Action) Originating Summons (OS)
Pleading documents: For cases commenced by OS:
1. Statement of claim (SOC) • Plaintiff must file an serve an Affidavit
• Plaintiff must serve the SOC on the in Support, which includes all
defendant any time after serving the supporting documents.
writ, but within 14 days after the • The defendant must file and serve an
defendant files a memorandum of Affidavit in Reply within 21 days if
7
appearance. they wish to contest the claim.
• In practice, statement of claim is • Any further affidavits in response
served together with the writ, unless must be filed within 14 days from the
there is a need or urgency to file the date of service of the previous
writ first. affidavit.
2. Statement of defence:
• The defendant must serve the
Statement of Defence on the plaintiff
6
O. 10, r.1 Rules of Court 2012
7
O.18 r.1 Rules of Court 2012
Task 1: How to commence an action for claim?
within 14 days after either the time
limit to enter an appearance expires,
or after the Statement of Claim is
served – whichever is later8.
• Defence may also include a
counterclaim if the defendant wishes
to bring a claim against the plaintiff in
the same proceedings.
3. Reply to the Defence:
• Plaintiff must serve a reply to the
defence within 14 days after
receiving the defence9.
• If there is a counterclaim, the
plaintiff can also include a defence
to the counterclaim in the same
document.
Analysis: Writ or Originating Summons?
The mode of commencement depends on the nature of the dispute. If factual disputes are
expected (e.g. breach of contract, negligence), proceed by Writ. If the issue concerns only
legal interpretation or is statute-mandated (e.g. trust declarations, rectification of register),
use Originating Summons.
Selecting the correct mode of commencing a legal action is important to ensure that a claim
proceeds effectively and is not delayed or dismissed due to procedural misstep. One of the
primary considerations is the nature of the dispute. Certain types of claims, especially those
governed by specific statutes, may have procedural requirements that dictate whether the
matter should be commenced by Writ of Summons or Originating Summons. Failure to comply
with these statutory requirements could lead to a claim being procedurally defective.
One must also assess the complexity of the claim. As per Raja Azlan Shah J in Pesuruhjaya
Ibu Kota Kuala Lumpur v Public Trustee & Ors10, a Writ should be served rather than a
summons where a factual issue emerges. When a claim involves substantial disputes of fact
that will likely require oral evidence, witness examination and cross-examination, the Writ
procedure is appropriate as it leads to a full trial11. On the other hand, if the matter primarily
involves questions of law or interpretation of documents without factual disputes, commencing
8
O. 18, r.2 Rules of Courts 2012
9
O. 18, r.3 Rules of Courts 2012
10
[1971] 2 MLJ 30,
11
Ismail, S. M., Raveentharan, V. A. L., & Murgan, D. A. P. S. (2022). Procedures of commencing a civil suit: A
comparative analysis between Malaysia and India. Journal of Undergraduate Legal Studies (JUUM), 31, 139–
148.
Task 1: How to commence an action for claim?
the claim by OS may be more suitable. OS is typically faster and is decided based on affidavits,
without the need for a trial.
Another factor that may influence the choice of procedure is related to the urgency of the relief
sought. OS is often preferred where swift judicial intervention is needed and the facts are
unlikely to be contested. In contrast, where urgent relief is required but there are complex
factual disputes 12 , it would still be necessary to proceed by Writ, supported by interim
application to secure urgent remedies pending the final determination.
A wrong mode of commencement may lead to procedural challenges, including the risk of the
claim being struck out or delayed while the court addresses objections regarding the improper
process. In Abdul Majid v Har Abdul Razak13, Chang Min Tat J emphasised that they court
would generally refuse to resolve substantial disputes of fact via on originating summons, as
it would be procedurally inconvenient. This is not only increasing legal costs but may also
require the party to restart the proceedings, causing further time loss and potential prejudice.
While legal proceedings are generally commenced either by way of a Writ or an Originating
Summons under the Rules of Court 2012, there are exceptions where specific statues
prescribe their own procedural mechanisms for initiating legal action14. For instance, winding-
up proceedings are initiated by a winding-up petition pursuant to the Companies Act 2016;
matrimonial proceedings commence by way of a divorce and petition under the Law Reform
(Marriage and Divorce) Act 1976; and bankruptcy proceedings are initiated through a
bankruptcy notice and creditor’s petition under the Insolvency Act 1967, to name a few.
In sum, the correct originating process is not just a technical step but a strategic decision that
impacts the efficiency, cost, and success of litigation. Correct commencement promotes a
smoother, quicker, and more cost-effective path to resolving disputes.
12
Ismail et al., 2022
13
[1971] 2 MLJ 228
14
O. 94, r.2 Rules of Courts 2012
Task 1: How to commence an action for claim?
