9. How do I start a civil action by issuing a writ of summons?
An overview of a civil action begun by writ of summons
The following chart is made with reference to the website of the Resources Centre for Unrepresented Litigants, maintained by the Hong Kong Judiciary. It outlines the major steps involved in an action begun by a writ of summons.
Defendant filing an acknowledgment of service(NB If defendant fails to do so,plaintiff may apply for court judgment against the defendant)
Plaintiff filing a reply (and defence to counterclaim) (NB The pleadings are closed at this stage.)
(Note: You should bear in mind that it can take a long time to complete the abovementioned steps to bring a civil case to trial and that most cases do not result in trial. Before a civil case is brought to trial, there may be court hearing(s), called interlocutory proceedings, held with the purpose of settling some procedural disputes, or dealing with urgent applications to preserve a party's rights. There are also various means of disposing of a civil action before trial.)
Before issuing the writ, the plaintiff should ascertain the name of the defendant and his last known address. If the defendant is a corporation/limited company, the plaintiff should make a company search to obtain up to date information about its name and its registered office. If the defendant is a business (sole proprietorship or partnership), the plaintiff should conduct a business registration search at the Inland Revenue Department to ascertain the trade name and the principal place of business.
When issuing the writ of summons, the plaintiff has to set out in Chinese or English an endorsement of claim (a concise statement of the nature of the claim) or a statement of claim giving details of the legal basis of the claim together with the facts that the plaintiff is relying on, and the relief and remedy that he is claiming. (Note: If the plaintiff wants to wait and see whether the defendant intends to contest the case, he may only prepare the endorsement of claim when issuing the writ. If the plaintiff only attaches an endorsement of claim into the writ, a statement of claim has to be filed and served on the defendant within 14 days after the defendant has acknowledged service of the writ and given notice of intention to defend.)
Please click here to obtain guidelines (given by the Resource Centre for Unrepresented Litigants) for preparing a statement of claim and to get some sample statements of claim.
The writ of summons has to be issued and filed with the court at the Registry. (Note: You have to pay a filing fee at the Accounts Office of the court upon filing the writ. To check the exact amount of the filing fee, please contact the relevant Court Registry.)
Service of the writ of summons (delivering the writ to the defendant)
Every writ must be accompanied by three copies of the acknowledgment of service form. It is the plaintiff’s responsibility to serve the writ of summons and the accompanying three copies of the acknowledgment of service form on the defendant.
Generally speaking, there are three alternative ways to serve a writ of summons on a defendant who is in Hong Kong, namely:
- by personal service: handing a "sealed copy" (i.e. sealed with the court's seal) of the writ of summons to (or leaving it with) the defendant personally;
- by registered mail: posting a sealed copy of the writ of summons by registered post addressed to the defendant at his usual or last known address; or
- by insertion through letter box: inserting a sealed copy of the writ of summons enclosed in a sealed (not open) envelope addressed to the defendant through his letter box.
- If the defendant is a limited company, the plaintiff can serve the writ of summons by posting it to, or leaving it at, its registered office.
- If the defendant is a partnership business, the plaintiff may serve the writ of summons on any one or more of the partners or on any person having control or management of the business at its principal place of business. Alternatively, the plaintiff may send the writ of summons to of the principal place of business by registered post.
- In an action for recovery of possession of land/flat, the plaintiff must also post a copy of the writ of summons at the entrance of the premises in question.
- Under normal circumstances, the plaintiff cannot serve a writ of summons on a defendant outside Hong Kong unless he has obtained the permission of the court. The plaintiff should apply for permission before serving the writ of summons outside Hong Kong . For details of this application, please refer to Order 11 of the Rules of the High Court (Cap. 4A of the Laws of Hong Kong) or Order 11 of the Rules of the District Court (Cap.336H) as appropriate.
Please also note that the plaintiff has to prove by affidavit or affirmation that the writ of summons has been served on the defendant. In the affidavit or affirmation, the plaintiff has to state that he has personally served the sealed copy of the writ of summons on the defendant on a specific date (including the day of the week). If the service was by post or by insertion through the letter box, the affidavit or affirmation has to state that the writ of summons has not been returned through the post (as the case may be) and that it will have come to the defendant's knowledge within 7 days thereafter. (Note: If the plaintiff has an agent/representative to serve the writ, that agent/representative has to make such an affidavit or affirmation.)
For more information about the service of a writ of summons within Hong Kong , and a sample affidavit/affirmation for service, please click here.
What happens after the plaintiff has served the writ of summons?
After the plaintiff serves the writ of summons on the defendant, the defendant will have a period of 14 days to acknowledge receipt of the writ of summons. To find out how this 14 days' period is calculated, you should refer to the question of "How to calculate the period of 14 days for filing of the acknowledgment of service form".
If the writ of summons was served with an endorsement of claim (without a statement of claim), then within 14 days after the date on which the defendant files the acknowledgment of service form indicating an intention to defend the civil action, the plaintiff will have to file and deliver to the defendant a statement of claim setting out the details of the legal basis of the claim together with the facts that the plaintiff is relying on and the relief and remedy that he is claiming.
If the writ of summons was served with a statement of claim, and the defendant files an acknowledgment of service form indicating that he wishes to contest the civil action, then within 28 days following the expiry of the time limit for the defendant to file an acknowledgment of service, the defendant should file and serve on the plaintiff his defence to the plaintiff's claim and a counterclaim against the plaintiff (if any).
If the defendant does not file an acknowledgment of service form or a defence within the time limit, the plaintiff can apply for a court judgment to be entered against the defendant. See the question of "What happens if the defendant does not file an acknowledgment of service form or a defence?"
If the defendant files a defence (and counterclaim), the plaintiff may need to file a reply (and defence to counterclaim, if any). See the question of "What happens if the defendant files a defence (and counterclaim)?"
What should the plaintiff know about "payment into court"?
Payment into court is one of the most valuable weapons in the armoury of the person being sued by you (i.e. the defendant). For more information on this, you should refer to the question of "If the defendant considers that he does in fact owe the plaintiff some money, what action can be taken by the defendant?"