Plain Guide to Litigation: Written pleadings


2. The Application

Perhaps the most obvious point about the application is that it must say what it is that the court is being asked to do. You must make this clear. This part of an application is often referred to as “the crave”. That is an old fashioned sort of term but it describes what it is. You must set out what Order you are asking the court to make.

The Court has printed forms for use in the more common kinds of case. The Court staff can give guidance as to the right form to use for your case. But it may not be easy for them to say much more. After they receive your application, the staff will sometimes be able to tell you if it does not meet a minimum standard in the information it contains or the way it has been completed. They might also be able to tell you if you are asking for something which the Court does not seem to have power to deal with or where you have not set out enough facts to show that there is a legal basis for the Order you want the Court to make. But often these matters raise questions of law which may not become apparent until challenged by an opponent. To ensure that you do meet a minimum standard you need to know enough of the law to set out a competent crave or request; that is, one which the Court has power to deal with, and set out enough by way of supporting fact to show that you might be entitled to the remedy you crave.

A court such as the Land Court does not have power to decide every question that it is asked. We use the word “jurisdiction” to explain the range of matters any particular court can deal with. The jurisdiction of the Land Court is set out in various Acts of Parliament. The Acts give the Court its powers. If the Court has not been given power to deal with a particular topic, it has no jurisdiction to make Orders dealing with that topic. Another way of putting this is to say that it is not competent to deal with the topic. An application asking a court to do something which is not within its powers is said to be “incompetent”.

Sometimes a court is asked to make an order which would be within its powers but the applicant cannot provide or, in any event, has not provided, enough material to show why he or she is entitled to seek such an order. In that case the application may be said to fail the test of “relevancy”. It may include a lot of detailed facts but none relevant to the question.

Some types of application present special pleading challenges. An example is an application to fix rent of a farm under the Agricultural Holdings legislation. While renting of crofts usually requires little by way of formal pleading, the renting of an agricultural holding normally requires the presentation of a lot of detailed information. Most of this falls into the category of evidence and does not need to be set out in the pleadings. Where it does, it can be useful to use schedules or spreadsheets. Discussion of this is beyond the scope of this paper. Although what is said below may give guidance to the pleading in rent cases, it is not aimed at such cases. If you are involved in a holdings rent case, you should make special enquiry with the court staff to see what the current guidance is.

The rest of this chapter deals with what you should have in mind when setting out the facts you rely on to support your request or crave. Some special application forms contain guidance as to the specific types of information required. But it is up to the applicant to make sure that enough is said to justify the claim they are making. Although the Court staff will not be able to give guidance about whether a claim is a good one or not, they will check the initial application to see that the minimum requirements for detailed information are satisfied. You may be asked to supply further information before the application is allowed to proceed to the next stage.

The “Statement of Facts” is where you set out the material upon which your crave is based. The aim of written statements on each side (“the pleadings”) is to give fair notice of the basic elements of the claim and also to allow the parties to agree what is admitted or agreed and try to identify what is actually in dispute. If that is done sensibly, it should minimise expense by making sure that the court only has to deal with matters which really are in dispute.

« Previous | Contents | Next »


© 2011, Scottish Land Court