ABDUL MALIK ISHAK J

A preliminary objection was raised by Mr Azad Basher, learned counsel for the second defendant, to the effect that proceedings in which an alternative allegation of fraud is involved must be begun by writ and not by way of originating summons. Mr Sowaran Singh, learned counsel for the plaintiff, argued to the contrary and he said that the procedure was perfectly in order and was not fatal to the continuance of the action.

Order 5 r 2(b) of the Rules of the High Court 1980 (‘the RHC’) provides (the relevant part material to this judgment) that proceedings in which a claim made by the plaintiff is based on an allegation of fraud must be begun by writ. In Re 462 Green Lane, Ilford Gooding v Borland Re Engall's Agreement [1953] 2 All ER 503:

In those circumstances, therefore, in this case there must be pleadings; there must be discovery; the action must be at least continued as though it had begun by writ. This is not a technicality; it is a most important matter of substance because it is only by this means that the parties can see perfectly clearly what are the serious issues involved and be sure of having made available to them by discovery all the relevant documen