Plain Guide to Litigation: Written pleadings
Before considering how best to set out the material in the Application it is helpful to know a little more about the “pleadings” stage of a case. This applies in relation to the initial Application and to the Answers.
The parties start by stating their respective cases in the Application and Answers. There is then a process known as “adjustment” when each side can revise their statements in light of the opposition’s statement. They can add more detail, correct errors and set out their responses to things said by the other side. Once the adjustment is complete, everyone should be able to see what the real disputes are. A decision can then be taken as to the most efficient procedure to resolve outstanding matters.
It is necessary to strike a balance in pleadings. You must give proper intimation of the essential aspects of your case: the facts you need to prove to justify the remedy you seek. But you do not need to set out every last detail. The strict legal rule is that you must set out all the main facts you rely on to establish your case but not the evidence you will rely on to prove these facts. That is a sensible rule to keep in mind. But sometimes fair notice needs a wider approach. It is not easy for laymen to decide what facts are so essential to their case that they need to be disclosed in the pleadings and what matters are simply being relied on as evidence. Even if it was possible in a Guide like this to tell people the precise point of distinction, we do not think that a rigorous application of the rule would help the main aims. Even experienced solicitors find this difficult. But the more you understand about the different aspects of pleading, the easier it may be to strike the right balance. There is no doubt that written pleadings and the adjustment process can lead to a great waste of time and money if the balance is wrong. All involved must do their best to limit this.
The main aim of written pleadings is to give fair notice of the basis of the case. We look at this first, but the aim of identifying the real issues should not be forgotten. By allowing parties to see clearly not only what is disputed but what is not disputed, good pleadings can save a lot of wasted time. It is important that parties understand precisely what it is that they are actually arguing about.
The aim of fair notice is to ensure that when parties come to a hearing they can be fully prepared not only to present their own case but to answer the other side. Pleadings are an important tool in setting the boundaries of what any hearing is to be about. People cannot expect simply to come along and tell the court all their grievances. There has to be some form of notice to let the other side prepare their answers and gather any evidence necessary to support their side of the dispute.
The Land Court is anxious to ensure that cases are decided on the basis of the true facts and the proper law. We make every effort to try to ensure that procedural rules do not get in the way of that. We know that the parties are seldom strangers to each other and that there are few cases where a party would be genuinely taken by surprise. But it is vital to realise that procedural rules have an important part to play to ensure fairness. If it appears that a person is, indeed, taken by surprise on any significant matter, the court may either refuse to hear the new material or allow extra time for him or her to prepare to answer it. The problem of balance is that attempts to avoid risk of criticism of not giving fair notice can lead to people trying to put every little detail into the pleadings. The time, effort and expense of this is seldom justified.
It may be helpful at this point to say that pleadings are not a place for setting out all the evidence you will rely on to establish your case. They are not a place for setting out arguments in support of the case. They are intended to give notice of the basis of your case. They are not intended to serve the purpose of trying to persuade either the court or the opponent that a case must succeed. A clear statement of the basis of your case might well be quite persuasive in itself but you should not attempt to bolster it up with arguments. That is not the purpose of pleadings.
There is sometimes confusion between “pleadings” and “written submissions”. Pleadings are the formal written statements of what the applicant is asserting and the respondent’s defence. If the pleadings are used to include attempts to persuade or present arguments in support of the case, they can easily become so complicated that their primary purpose is lost. In a court, the stage of presenting arguments is known as making “submissions”.
Submissions are intended to persuade the court to find in your favour. They are usually made orally. A “submission” is just a coherent argument. For example, the stage of “closing submissions” is when you present your arguments about the effects of all the evidence which has been presented to the court and explain to the court why it should find in your favour. At that stage you might, for example, set out the reasons why you say that the court should prefer the evidence of your witnesses to the evidence for the other side. It is also the stage when you tell the court what you say is the correct legal approach to the facts in your case. Submissions after the hearing of evidence are almost invariably referred to as “closing submissions”. They are the last stage of a hearing. Submissions may, however, be made at other stages of a case. The word is used to cover all types of oral presentation in court except the stage when witnesses are giving evidence about disputed facts. Where a hearing is a debate about a question of law, the arguments are referred to as “submissions”.
In some cases, we may ask for a written outline of submissions to be sent in before a hearing. This is intended to save time at the hearing. Advance warning allows both the court and the opponent to consider the arguments fully and helps ensure that they fully understand all the points made at the hearing of the oral submissions. It saves time at the hearing by allowing the court to look, in advance, at any previous decisions of a court which may be relied on by the parties as supporting their argument. But sending in a written outline of submissions is not the same as making “written submissions”.
That expression, “written submissions”, is usually used only when it is suggested that the Court should deal with a case on paper without an oral hearing. When this is agreed, the parties will be given an opportunity to set out their whole arguments or submissions in writing. The submissions will, of course, have to be based on the case set out in the pleadings but this process gives an opportunity to put full arguments in writing. Written submissions may contain reference to previous court decisions and reference to any provisions in an Act of Parliament on which the case is based. Written submissions can make reference to any pieces of documentary evidence relied on to support the case. They will set out on paper all the arguments thought necessary to persuade the court to find in your favour.
Disposal of a case on written submissions may be appropriate where the facts are agreed or where the dispute is about the meaning of documents or about a pure point of law. They are not appropriate when there is a dispute about fact. Dealing with a case on written submissions will usually be cheaper than a hearing but it is not necessarily preferable. Preparation of full written submissions can be time consuming and it is more difficult for the court to be sure it has fully understood an argument when it cannot ask questions. An argument is usually easier to develop fully when tested in discussion with the court.
It is important to understand the difference between “pleadings” and “submissions” when talking about the court deciding a matter on written submissions. If that course is agreed, it does not mean that the matter will be decided on the pleadings. What will happen will be that parties will then be given a chance to set out any arguments in writing to support the pleadings. The court will consider these written submissions, in private, along with the pleadings and any agreed documentary evidence and issue a decision without having to have a formal hearing.
Once the essentials of a dispute can be identified, a decision can be made as to the most appropriate procedure to follow to resolve it. This will usually involve a decision as to whether it is worth holding a separate hearing to decide any legal questions or whether the real dispute is about facts, or about a mixture of facts and law, so that the best course is to have a full hearing to establish the facts before arguing about the law. Debates on law are usually much easier to arrange. They are shorter than a full hearing and do not require attendance of witnesses. So, fewer people are involved and it is usually easier to find suitable times for a hearing. A debate will usually be much cheaper than a full hearing. The role of pleadings in clarifying the issues is therefore very important.
However, even where there are real issues of law, there is usually some dispute about fact and after the pleadings have been adjusted the normal assumption is that a full hearing will be needed. Good pleadings allow solicitors to estimate accurately how long the hearing is likely to take and suitable arrangements can then be made. This, of course, is not so easy for party litigants but the Clerk of Court will be happy to discuss this at the appropriate time.
© 2011, Scottish Land Court