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If the parties should choose an inappropriate mode of commencement, the court could
continue to give suitable directions to enable the case to change its procedural course.
An originating summons issued where there are substantial factual disputes would be
directed to proceed as if begun by writ, as presently done under O 28 r 8. Similarly, a
dispute which raises a simple question of law without any factual dispute can be
ordered to be tried summarily or without pleadings or discovery, as currently provided
It may perhaps have originally been thought that petitions and originating motions
involve the seeking of relief from the court without there necessarily being any
identifiable defendant or respondent so that different rules relating to service, etc, had
to be engaged. However, looking at the examples of originating motion and petition
cases mentioned above, there appears nowadays to be a likely respondent, at least in
most cases: the Secretary for Justice or a relevant public authority in judicial review
and criminal seizure cases, the arbitrator and/or the other party in arbitration cases, and
so forth. Even if there is no identifiable respondent, use of the originating summons
with a formula such as "Let all persons concerned attend [before the named judge at
the stated time and place]" would suffice to bring the matter before the court which
could, if necessary, order particular persons to be served. There accordingly appears
to be no reason why all proceedings presently started by originating motion or petition
should not be begun by originating summons, or, if the circumstances warrant it, by
writ.
The proceedings listed in O 1 r 2(2) should remain unaffected by the RHC as amended
on the grounds that they are regulated by their own well-established rules, designed
with peculiar considerations in mind. For instance, in bankruptcy and company
winding-up cases, creditors other than the petitioning creditor and contributories, will
often join in and may possibly take over the proceedings. The roles to be played in the
proceedings by the Official Receiver, provisional liquidator, liquidator and trustee in
bankruptcy also require special treatment. Similarly, the invocation of Admiralty in
rem jurisdiction against a vessel raises peculiar issues not encountered in purely in
personam proceedings and not mirrored in other parts of the RHC.
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