Tuesday, July 29, 2008

Simple guide: What you need to do if you get civil summons?

  1. Notice of Demand: In most cases, before you get a civil litigation summons you will receive a notice, called 'legal notice of demand'. Normally, you are given certain period of time to comply with the demand in the notice. If you concede with the demand you may pay (if it is monetary demand) or whatever demanded. Should you dispute the demand, you may answer the notice giving your stand in the claim, in the event that you fail or neglect or refuse you satisfy the demand within the stipulated period given, the demander may or may not proceed with legal action against you at his prerogative. If so, to proceed suing you in court of law.
  2. Summons & serving summons: you may receive a seal copy (bearing court's seal) of summons and statement of claims served on you by personal service, by AR Registered Post, or Registered Post or even ordinary post (pursuant to term of contract on how should legal paper or demand served on either party).
  3. If you acknowledge receive of the summons, then the person suing you (called the plaintiff) ready (after filing affidavit of service in court) to take judgment against you should you fails to attend court to answer the claims.
  4. If the plaintiff fails to serve on you the seal copy of the summons, the plaintiff may have to apply to court for an order of substitute service for example the court normally order advertising the summons in local newspaper and/or posting the summons at a clear visible area of last known defendant's address. Upon fulfilling all these order by the court, the summons then is deem served onto defendant (you). Hence, you this is the tricky part when you don't receive any summons and suddenly found up that a judgment have been taken against you.
  5. Entering appearance: now assuming that you receive the seal copy of the summons in your hand, what do you need to do?
  6. If you look carefully in the summons set, you will find a copy of 'notice of appearance' attached together in it. Detach the notice and read carefully the notice, it is there for you to use, fill in the particular and after that file in court. Also, don't forget to make a copy and serve a copy to plaintiff (or his solicitor). It is also always a good practice to keep a copy for you own record. It is a simple form, I am sure you know how to fill out the form (notice of appearance).
  7. One most important thing is that at the very beginning page of the summons there is stated a 'date of return'. The date when you need to appear in court for the first mention before a judge or magistrate or session court judge. You must attend on the return date unless you choose accept and agree with the claim and pay (or satisfy) the summons and its demand before the return date.
  8. Date of return or the first mention date: on the first mention date or the return date, if you fails to attend and that the seal copy of the summons and its statement of claims have been duly serve on you, (plus the affidavit of service has been filed in court by the plaintiff), a judgment default of appearance may be entered against you.
  9. On the other hand, if you attend the first mention and you still haven't filed your statement of defense, don't worry. You may apply to the sitting judge or the magistrate to allow you to adjourn the case for another mention date. That is to enable you to enter your statement of defense or even to appoint a lawyer representing you in your proceeding.


 

Ok that is what you need to do at the beginning of your legal dispute proceeding… there are of cause a lot more procedure you need to do after step 9 above, and God Willing, I shall post further later.

Regards,

Kamarul Irzuan Bin Hj. Busu Piah

 

6 comments:

  1. Hi Khairul,

    Do u have the format of Affidavit of service for small claim case(Civil case)
    which needs to be filled in Majistrate Court.

    If yes plz pass me.

    Waiting for ur response.

    ReplyDelete
  2. Is there any authority on the serving of Notice of Demand by hand is a proper one?

    ReplyDelete
  3. Mimi,

    There is no proper authority stating that NOD must be serve by hand. But if the NOD is served by hand, dont forget to get the acknowledgment of receipt from the recipient.

    Sincerely
    Khairul Aiman
    Messrs. Irzuan

    ReplyDelete
  4. hi mr.khairul. i'am chambering student. i would like to know if there is any provision which stated that all filing cost will be paid or can be claimed from Master?...if there any authorities to convince my master that he supposed to paid me all the expenses i spent in order to filing a petition at the high court.need your opinion...thank you ...

    ReplyDelete
  5. dear Amsyar, no authorities regarding this matter because it based on your master discretion. it is just a practice and not a law to do so. but you can refer to Bar Council about this matter. sorry for late reply.

    ReplyDelete
  6. i would like to know if one can send notice of demand using Whatsapp?

    ReplyDelete