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Section 6: Commencement of Proceedings
Proposal 6
The way to commence proceedings should be simplified to involve only two forms of
commencement, abolishing distinctions between writs, originating summonses, originating
motions and petitions.
Application of the RHC should continue to be excluded in relation to the classes of
proceedings set out in O 1 r 2(2) ("the excluded proceedings").
In so far as appropriate, other specialised types of proceedings governed by their own
procedural rules and requirements should be added to the excluded proceedings and special
provision should be made in respect of election petitions.
The rules of the RHC making it mandatory to commence certain proceedings by writ or, as
the case may be, by originating summons, should be abolished.
In all cases other than the excluded proceedings, the parties should be permitted to
commence proceedings either by writ or by originating summons, with the RHC indicating
that a writ is appropriate where a substantial dispute of fact is likely and that an originating
summons is appropriate where there is unlikely to be a substantial dispute of fact, such as
where the sole or principal issue is one of law or construction.
Originating motions and petitions should be abolished (save where they are prescribed for
commencing any of the excluded proceedings).
Unless the court otherwise directs (in accordance with applicable laws), all hearings of
originating summonses should take place in open court.
It should continue to be the case that an inappropriate mode of commencement does not
invalidate steps taken in the proceedings so commenced and that in such cases, the court
should give suitable directions for continuation of the proceedings in an appropriate manner.
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