Plain Guide to Litigation: Written pleadings
The above comments apply, as appropriate, to the Answers. You should try to answer all the points made. You should also set out your own side of the case as clearly as possible. But the aim is to give notice of the essentials of your position; not to present your case in all its glory
Drafting Answers may well be more difficult than drafting the initial Application. The simple approach is to answer every point made by the application and then put in your own material by way of explanation. But it is very easy to get tangled in a confused mixture of admissions, denials and explanations. So, various techniques have been developed to try to make things clearer. If you can manage to adopt these techniques, that would be helpful for everyone. But we stress that the aim is always clarity not formality.
As long as you can make your own position clear enough, it does not matter what words you use to express things in the written pleadings. Keep in mind that although the word “pleadings” may tend to convey the idea of presenting pleas to the court, the purpose of pleadings in Scottish courts is to give fair notice of the case. As we have said it is not the place for argument. You are not pleading in that sense!
For a DIY litigant, the natural thing would be to try to answer each assertion in turn. If short paragraphs have been used this approach works quite well. You admit what you know to be correct and deny what you dispute. But there may be things lying in the middle. You may not be comfortable with the idea of admitting what you do not know even if you cannot actually deny it. You have to decide whether you are prepared to accept such a matter at face value or whether you want to leave your opponent to prove it if he can. Some things you will not be sure about. They may be fine as far as they go but need some explanation.
Various phrases have come to be established as convenient ways of setting out your attitude to the other side’s case. The way lawyers deal with the problem is to answer each paragraph separately but do so by setting out the material in distinct categories. They will start by admitting every point which they know from their client to be correct. They might then list any individual assertions that are “believed to be true”. These would be things that they were prepared to accept without any qualification. They next list any of the opponent’s assertions which are “not known and not admitted”. That is the same as saying that the opponent will have to lead evidence to prove such assertions. They will intend to test the evidence by cross examination but will not be able to lead any positive evidence to disprove the point.
The last category is the things that are denied. They would not normally be listed. Although we make an effort to avoid Latin expressions in the Land Court, you will usually find that lawyers cover the last group by saying “Quoad ultra denied”. This means that “anything beyond the various items expressly mentioned in any of the previous categories is denied”. You can see why we allow the Latin!
Grouping matters in this way helps make it clear what is disputed and use of a general denial at the end saves having to deny things line by line. It also avoids the risk that you might fail to deny something. This approach is helpful if a lot of material has been squeezed into one long confused paragraph. It is not so necessary where the material to be answered has been set out in short paragraphs.
If there are bits of your opponent’s case which you find ambiguous or obscure you can ask him to explain, or clarify, or admit any matters which he really ought to be able to admit. Lawyers make clear what they are doing by using the word “call”. For example: “The applicant is called upon expressly to admit or deny that he accepted a payment of rent on 4 January”. Opponents are not automatically obliged to answer such calls. They may think they have already provided sufficient information or that they are being called to deal with something that has really got nothing to do with the case. But, used appropriately, such calls can helpfully clarify specific points or focus attention on evasions or vital gaps in the opponent’s case. If you want to force a recalcitrant opponent to answer a call on a point you think important you can ask the court to pronounce an order requiring such an answer.
Explanations can usually be inserted point by point, by way of specific answer to each statement made by the Applicant. But there may be circumstances where you would wish to add quite separate material of your own. You might do this by adding some paragraphs with new subparagraph numbers rather than trying to force new material into a framework which was not designed for it.
That approach might be particularly appropriate if faced with the task of drafting Answers to an Application which has been set out in skeletal form. The aim should be to provide as full a statement of your own position as you can, as soon as you can. This cuts down the delay and expense of extensive subsequent adjustment. Even if an application is brief, it may be possible for the respondents to set out their side of the case fully in their first answers. This should force the applicant to set out their case in detail by way of reply. It is important to keep in mind at all times that pleadings on each side should be drafted, if possible, in a way which makes them easy to answer. In an ideal world, pleadings would be regarded as a joint effort.
This comes back to the main point that parties should always consider resolving as much as they can by agreement. Litigation should be the last resort and only used to decide serious matters. Even if you cannot agree everything, no effort should be spared in trying to see what you can agree. You might find that involving a third party would help this process. Various commercial firms offer a service as “mediators”. Their skill lies in helping people work out things for themselves. Even if you do not think your dispute requires professional assistance you might be able to find someone both sides respect and invite his or her assistance. Sometimes it takes just a few questions from an outsider to show parties where agreement may be achieved. An aim might be to find a way to work for the future without necessarily conceding anything about the past. But even if full agreement is not achieved, outside assistance is often the key to progress.
Even where positive agreement is not possible on some issue, it is always worth trying to reach a compromise on minor points, even if just for the purposes of the litigation, to ensure that the expense of litigation is limited to the points of importance. If you take the approach of simply leaving everything to the court, you may win on the important point and end up paying some of the expenses because you lost on some minor point you would not have thought worth arguing about on its own.
The real enthusiast might want to consider another expression commonly used by lawyers in pleadings: “Believed and averred”. It is so often used incorrectly that the only advice for a party litigant is to ignore it. It is an expression which should only be used where you are making an assertion which is an inference from something else and where it is something the opponent might have actual knowledge of and you could not. It is not for DIY use. If you are asserting something as a fact which you intend to prove, you should do so plainly. What you believe is not relevant unless you can explain the basis of your belief.
© 2011, Scottish Land Court