A writ that is missing a required endorsement is defective. Order 4 of the National Court Rules 1983 sets out what must appear.
| Rule | Endorsement | When required |
|---|---|---|
| O 4 r 19 | Statement of claim | Always, before the writ is issued |
| O 4 r 7 | The relief claimed, stated specifically; and any question on which the Court’s determination is sought | Always |
| O 4 r 8 | Plaintiff’s name, address and occupation; solicitor’s details; address for service within 15 km of the Registry | Always |
| O 4 r 9 | Note warning that judgment may be entered unless notice of intention to defend is filed, and the time limited for it | Where there is a defendant |
| O 4 r 10(4) | Note of the defendant’s right to pay out and stay the proceeding, and the prescribed amount for costs | Money claims only |
| O 4 r 20 | Statement of representative capacity | Where a party sues or is sued in a representative capacity |
| O 4 r 21 | Claim that an account be taken | Where an account is wanted in the first instance |
| O 4 r 22 | Particulars identifying the publication (libel) or the time and place (slander) | Defamation claims |
Rule 19 — the central requirement
Without prejudice to Order 8 Rule 33, before a writ of summons is issued it must be endorsed with a statement of claim.
The statement of claim is not something to be supplied later. It goes on the writ before issue.
So before filing you must have identified every element of the cause of action and pleaded the material facts establishing each. A vague or incomplete statement of claim is exposed to an application to strike out or for particulars, both of which cost time and money.
It can be amended under Order 8 Division 4 — but not always once the limitation period has run.
Rule 20 — representative capacity
(1) Before issue the writ must be endorsed — (a) where the plaintiff sues in a representative capacity, with a statement of that capacity; and (b) where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued.
(2) In probate actions, whether the plaintiff claims as creditor, executor, administrator, residuary legatee, legatee, next-of-kin, heir-at-law, devisee or otherwise.
(3) Issue of a writ in a probate action shall be preceded by the filing of an affidavit verifying the endorsement.
A person may sue in their own right, or as executor of an estate, as trustee, as a next friend of a child, or in a representative proceeding on behalf of others.
The capacity determines who is bound by the judgment and whose assets answer for costs. Rule 20 requires it to be stated on the face of the writ so nobody is in doubt.
Sub-rule (3) adds a further step in probate: an affidavit verifying the endorsement must be filed before the writ issues. See challenging a will.
Rule 10 — the pay-out note
(1) Where the plaintiff claims for debt, damages or other money and makes no claim of any other kind, the defendant may, within the time limited for giving notice of intention to defend, pay the plaintiff (i) the amount claimed (other than costs) and (ii) the amount prescribed for costs under Table 2 of Schedule 2, and may file notice of the payment in Form 8.
(2) On a claim for a liquidated demand together with interest, interest is paid from the date of the claim until payment at the rate specified, or if no rate is specified, at 8% yearly.
(3) On filing the notice of payment, further proceedings shall be stayed.
(4) The originating process shall bear a note to the effect of sub-rules (1) and (3), and where applicable (2), and shall specify the prescribed amount for costs.
Rule 10 gives a defendant who does not dispute a money claim a way to end it immediately: pay the amount claimed plus the prescribed costs, file Form 8, and further proceedings are stayed.
That is far cheaper than defending and losing. It is available only where the claim is purely for money — a claim that also seeks an injunction or a declaration is outside it.
Note the default interest rate of 8% yearly where a liquidated demand claims interest without specifying a rate. On interest after judgment, see interest on a judgment.
What happens if you get it wrong
Order 1 Rule 8 provides that non-compliance shall not render any proceedings void unless the Court so directs — the proceeding may be set aside as irregular, amended, or otherwise dealt with on terms.
Order 1 Rule 11(2) requires only substantial compliance with a form.
But a party who objects must do so promptly and before taking a fresh step — Order 1 Rule 9 — and must state the objections in the notice of motion under Rule 10.
And remember Order 4 Rule 17: costs occasioned by prolix writs and endorsements are borne by the party using them.
Sources
- National Court Rules 1983 — O 1 rr 8–11; O 4 rr 7–10, 16–22; O 8 rr 33, Div 4; Schedule 2 Table 2
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.