Attorneys often have to remind each other that although this conflict-ridden, litigious environment is our norm, the day a layperson is served with a legal document is often the most stressful day of their lives. However, this does not need to be the case. With knowledge comes power and once a person can identify the type of legal document they have received, and the next steps to be taken, the way forward becomes more manageable.
This article will explain, in basic terms, the four legal documents used in High Court actions for unquantified damages which we, as legal practitioners, have noted our clients do not understand or react to urgently enough.
Combined Summons and Particulars of Claim:
A Combined Summons is the document that initiates a claim for damages in the high courts. This consists of a form, the Summons, with attached to it a ‘Particulars of Claim’. In this document the Plaintiff (the claimant who initiates the action proceedings and is seeking damages) sets out their allegations and version of the events which gave rise to the claim. This document is served (the legal term for delivered) on the Defendant (the person against whom the proceedings are initiated) by the Sheriff.
If you are the party initiating the legal proceedings it is your responsibility to ensure that the factual allegations stated in the Particulars of Claim are correct.
On the other hand, if you receive a Combined Summons as a Defendant it is important to take note of how the document was delivered and on which date. The date of receipt of the Combined Summons is particularly important as this determines the date by which the Defendant’s response is due. If you as a Defendant do nothing, the consequences will be a possible judgement against you.
If you receive a Combined Summons, notify your attorney or professional insurance indemnifier immediately so that they can react accordingly and enter an appearance to defend on your behalf.
Plea:
A Plea is the Defendant’s answer to the allegations made by the Plaintiff in their Particulars of Claim. It is the Defendant’s opportunity to respond to the Plaintiff’s allegations and state with which facts the Plaintiff has put forward, the Defendant disagrees. The Defendant then also has the opportunity to place their version of the events on record and to raise a defence.
A Plea will be drafted by a legal practitioner with the right of appearance in the High Court and can be quite technical in nature. However, it is the client’s responsibility to confirm that the factual allegations and admissions contained in the Plea are correct, as it can be difficult to amend or withdraw an incorrect allegation or admission without prejudicing the credibility of a Defendant.Â
Discovery Affidavit and Affidavits generally:
Once all the parties to the legal proceedings have been provided with an opportunity to place their version of events on record, the evidence to be used in the matter must be collated and shared. To initiate this process a Discovery Affidavit is used.
In general terms, an affidavit is a document containing information that the deponent (the person who signs the document) confirms on oath is true and correct to their knowledge.
A Discovery Affidavit is merely a technical name for a document that discloses all the evidence a party to legal proceedings intends to rely on should the matter proceed to trial. This affidavit enables the parties to become aware of any evidence that they do not yet have in their possession, and for each party to complete their bundle of evidence by requesting the outstanding documents from their opposition.
An affidavit must be deposed to before a Commissioner of Oaths. Put simply, this means that the deponent must initial the bottom right corner of each page of the document, and sign the document in front of a Commissioner of Oaths. The Commissioner of Oaths will then stamp or complete the document with their details. Legal practitioners, bank managers, marriage officers, police officers, chartered accountants and some hospital managers are Commissioners of Oaths.
Again, it is the client’s responsibility to confirm that the statements made in the affidavit are factually correct, as the statement is made under oath. The document carries the same authority as if a statement was made under oath in front of a judge in a courtroom.
Subpoena:
A subpoena is a document which compels a person’s attendance at a court hearing, or a hearing in front of another official body or council. It can be a condition of the subpoena that certain documents be provided to the court or body in addition to, or instead of, the person’s attendance at the hearing.
A subpoena which is issued for a court appearance must be served by the Sheriff on the person whose presence is required at the hearing. If you receive a subpoena, whether it was delivered correctly or not, notify your attorney or professional insurance indemnifier immediately.
Ignoring a subpoena from any issuing court or body can be very dangerous as you run the risk of being sanctioned for contempt of court. These sanctions can consist of monetary fines or even arrest and imprisonment.
It is always advisable to co-operate with the terms of the subpoena. You could ask your attorney to assist you with being excused from the subpoena or to negotiate with the issuer of the subpoena to have the date of your attendance moved if you have prior engagements on the same date. However, this may not always be possible.
Legal documents generally:
Most importantly, if you receive any legal document and you do not understand the contents or consequences of the document, notify your attorneys and obtain legal assistance. It may seem like an unnecessary expense at the time, but this does not begin to compare to the costs you could incur should you fail to react timeously and correctly from the beginning.
