There are two ways of litigating in the High Court; by summons or by application.

If the summons route is chosen, pleadings are filed. These are documents that set out the plaintiff's claim in particulars of claim, and the defence in a plea. What they must contain is prescribed by the Rules of Court. Eventually, after the pleadings have all been filed (closed), the matter will be heard in court and the parties will have to lead evidence to support what is alleged in the pleadings. In some divisions of the High Court the hearing will probably take place only years after close of pleadings.

In an application the claim and the defence are set out in affidavits. Generally three sets are filed; the founding affidavit by the applicant, the answering affidavit by the respondent and a replying affidavit by the applicant. The permission of the court is needed for filing of more affidavits. Only in very few cases is evidence led in applications. Affidavits must contain facts on which legal arguments by both parties will be based. Drafting affidavits is a complicated procedure and requires a good knowledge of the law relating to the issues. The affidavits must be attached to a notice of motion that must record the relief that the applicant seeks.

If a court finds that an applicant has not proved its claim it may dismiss the application. If there are issues to be clarified the court may order it to go to trial where evidence will be led, or refer only specific issues to evidence. If there is a dispute that cannot be resolved on the papers and the court finds that the applicant should have known of it before commencing the proceedings, the application will usually be dismissed with the applicant to pay costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.