Decision of the Scottish Land Court

Winifred Hauser (Applicant) v Gary McGibbon (Respondent)

Case reference SLC/38/18
before
Iain F Maclean, Deputy Chairman
29 January 2019

Introduction

[1] This application was received by the Court as long ago as 26 March 2018. Answers came in from the respondent on 10 May 2018, and both parties subsequently adjusted their pleadings, the applicant on 12 June 2018 and the Respondent on 4 July 2018 and 28 September 2018. In an email to the Court dated 30 July 2018, the applicant’s agents proposed, by way of further procedure, that a diet of proof before answer be fixed, and the respondent’s agents did not demur, being of the view that a debate about pleading points would not resolve any factual dispute on which the legal issues in the case turned. On 10 October 2018, the Court contacted parties’ agents for dates upon which they would not be available during the period January – March 2019, with a view to identifying mutually convenient dates for the hearing. By early November 2018, the parties had supplied their dates, and on 19 November 2018, the Court reverted to parties’ agents asking them to give an indication as to how many witnesses they intended to call, to enable the Court to determine whether the two days which parties previously had proposed would be sufficient for the hearing. Neither agent troubled to respond to the Court’s enquiry.

[2] On 15 January 2019, the Court reverted to both agents, advising them that, subject to being persuaded otherwise by them, it was of opinion that three days would be needed to hear the case, and that the likely dates for the hearing were 26 – 28 February (with the possibility of continuation into 1 March 2019). That email did provoke a response from the applicant’s agents, in the form of a query whether the likely dates could be “pushed back?” The only reason given for this request was that the applicant “intends to make use of the adjustment period afforded by Rule of Court 15(4) [of the Rules of the Scottish Land Court 2014]. In terms of that rule, if the hearing is to begin on 26.2.19, as adjustment is only permitted up until 4 weeks prior to the hearing, that will leave little or no time for the applicant to adjust or for the respondent to adjust in response, if necessary.”

[3] The applicant’s agents neither indicated the possible scope of the adjustments they have in contemplation, nor proffered any explanation as to why such adjustments could not have been made sooner, given that a period of over four months has elapsed since they received intimation of the most recent adjustments for the respondent. The respondent’s agents, meantime, have indicated that they would prefer the hearing to go ahead on the February dates proposed, pointing out firstly that the applicant’s agents have not made clear how much of a delay was being sought, and secondly that the period from March to August is a busy time for their client, who would be particularly concerned to avoid a hearing being fixed to coincide with when he will be lambing and calving.

[4] Rule 15(4) of the 2014 Rules does not, as the applicant’s agents seem to assume, confer upon them an absolute right to adjust at any time up to 4 weeks before the date fixed for the hearing. Rule 15(6) of the 2014 Rules expressly states that the provisions of rule 15(4) are without prejudice to the rights of other parties to object to all or any part of the adjustment either – (a) because it is alleged to be out of time as a matter of substantive law; or (b) because that party would be prejudiced by allowance of the change at the time when it is proposed. If a party opts to leave adjustment to within 4 weeks of the date fixed for a hearing, it does so at the risk that another party will object under reference to one or other of the grounds set out in rule 15(6), and then whether the adjustment should be allowed will be at the discretion of the Court. In the particular circumstances of the present case, however, in the absence of any indication from the applicant’s agents as to the likely import of any adjustment they may be minded to make, we do not consider that we have been supplied with any cogent reason by them for not proceeding to fix a hearing for the dates previously identified.

Decision

[5] Rule 19(1) of the 2014 Rules provides that the court may, at any time, either at its own instance or on the motion of a party, order that a case, or part of a case, be dealt with by way of a hearing. Rule 19(2)(c) then lays down that the place, date and time of the hearing are to be fixed by the Principal Clerk so that the period of notice in respect of the hearing, in the case of a hearing by way of proof, is to be at least 6 weeks. Notwithstanding the provisions of rule 19(2), however, the court yet may, if it considers (a) that there are circumstances of urgency; or (b) that there is some other good cause (which, without prejudice to that generality, may include the convenience of the court), fix such date and time for, and give such notice of, the hearing as it considers requisite: rule 19(3). Here, parties have known since last October that the Court was looking to fix a hearing by way of proof in this application for the period January – March 2019. Both parties’ agents confirmed that the dates 26 – 28 February 2019 were amongst those that were suitable for them. They then both failed to respond to the Court’s enquiry about the number of days that would be required for the hearing. When the Court reverted to them on 15 January 2019 to advise of the 26 – 28 February 2019 dates, neither party indicated that those dates could no longer be accommodated: the respondent’s agents confirmed that their preference would be to take up those dates, whilst the applicant’s agents pointed only to a somewhat inchoate future intention to adjust. The 26 – 28 February 2019 dates fit in well with the Court’s own diary, and in all of the foregoing circumstances, we have concluded that good cause exists to fix the hearing for those dates as originally intended. Any adjustments which the applicant may opt to bring forward in the meantime will be considered on their merits in the event of objection being taken to them on behalf of the respondent.

PROCEDURAL ADVICE

The attention of parties is directed to Rules 15 and 19 to 46 of the Rules of Court, which deal with preparation for hearings and related matters. Particular attention should be paid to Rules 22 (Intimating authorities and statutory provisions to be relied on), 23 (Lodging material etc), 26 (Expert witnesses) and 33 (Lists of witnesses) and the time limits specified in the Rules. Parties should especially note that all documents or productions which a party intends to put in evidence at a hearing must be lodged with the Principal Clerk, George House, 126 George Street, Edinburgh EH2 4HH at least 2 weeks before the date of the hearing. A party lodging documents or productions must also lodge an inventory listing the material lodged and intimate the inventory and, where reasonably practicable, copies of the material, to any other party. A list of witnesses that a party intends to call at the hearing must also be lodged 2 weeks before the hearing.

When lodging productions with the Court an additional 2 copies of each production must also be lodged for the Court’s own use, plus 2 copies of any production already lodged with the Court prior to this Order, if not already done.