8. If I want to start a civil action against somebody through the District Court or the High Court, should I commence the action by filing a writ of summons or by filing an originating summons?

8. If I want to start a civil action against somebody through the District Court or the High Court, should I commence the action by filing a writ of summons or by filing an originating summons?

A writ of summons must be used to commence an action based on contract, tort, fraud, damages for personal injuries or death, damages to property arising out of a breach of duty, and generally for all actions which would involve a substantial dispute of facts (examples of such disputes include whether the defendant owes you money and how much; whether the defendant has damaged your goods/property; whether the defendant has failed to perform a contractual obligation). As you can see, the majority of civil actions are begun by a writ of summons.

An originating summons is usually suitable for cases where there is only little or no dispute of fact and the parties only raise issues of law, or the interpretation of certain terms in a legal document, for the court's determination. In other words, if the parties only have different interpretations on certain terms or wordings in a legal document (or the existing ordinance provisions) without having any dispute over the facts of the case, the legal action should be commenced by an originating summons. (Note: In case the court finds that there is a substantial dispute over facts, the court may order that the proceedings should proceed as if they were by way of a writ. The court may then give directions appropriate to the proceedings of a writ of summons.)

If you are still not sure whether your legal action should be commenced by a writ of summons or an originating summons, you should try to seek preliminary legal advice before submitting the documents to the court. If you cannot afford the legal costs, the Free Legal Advice Scheme (run by the Duty Lawyer Service) or the Bar Free Legal Service Scheme (provided by the Hong Kong Bar Association) may offer preliminary legal advice to you.

Regarding the procedure of a civil action commenced by a writ of summons, please go to question 9. For a civil action commenced by an originating summons, please refer to question 10.