CJR Final Report, Section 6: Commencement of Proceedings

We have considered but rejected the suggestion that a single mode of commencement

should be adopted. Writs and originating summonses cater respectively for disputes

which do and disputes which do not involve potentially contested questions of fact:

writs for the former and originating summonses for the latter. Where a party decides

to issue a writ, he automatically triggers a process involving pleadings, discovery,

witness statements, etc, designed for resolving factual disputes. Such procedural steps

are avoided as unnecessary where an originating summons is issued to determine a

question of law or construction in an uncontroversial factual context. This distinction

is well-known and in the great majority of cases, the appropriate choice will be made.

Where, an inappropriate choice is made, this can readily be remedied by the court

directing a change, as discussed above.

But if a plaintiff is offered only a single means of starting proceedings, he cannot, by

the expedient of choosing the appropriate mode of commencement, invoke any

particular procedural scheme. A further step would be needed to establish how the

case should proceed. Therefore, the apparent simplification would be specious and no

saving would be achieved by adopting the single mode of commencement. The

further step might, for instance, involve an early hearing where a procedural judge

gives directions for the case in question. This may be helpful in large, highly complex

cases, but in the great mass of cases, would involve an unnecessary procedural step

and the front-loading of costs. Retaining two modes of commencement and allowing

the parties to choose which to invoke would be more cost-effective.