Plain Guide to Litigation: Written pleadings
Nowadays, the easiest way to adjust is to use a computer and show the changes in some distinctive way. You might use italics, or bold, or different fonts or colours. You can show deletions using different types of “strike out”. When you intimate these adjustments to the court you can send a copy with the changes marked and a clean copy. This allows everyone to see at a glance what new material they have to deal with. The different styles of change can be shown as examples on the top of the front page with the dates they were made. It is important to keep a track of when specific changes were made because this may have a bearing on assessment of the reliability of the case which is ultimately presented.
It is possible to use the old fashioned method of making the changes on a copy of the original and using different coloured pens to show changes made on different dates. This can work well enough for a few short changes. When there is a long adjustment process, things can get very confusing. There may be many colours and many bits of paper, glued or stapled on to the original. A major problem with this approach is the difficulty of making accurate copies for the court and the other side.
Some practitioners adopt the lazy style: “Adjust by deleting the previous Statement of Facts in full and substituting “X etc”. This may be quite a sensible thing to do if you are making radical changes to your pleadings. It is commonly used when there has been a change of lawyers and the new lawyers want a fresh start. However, if the new version is repeating most of the original with the new material simply fitted in as appropriate, this technique does not highlight the changes and this can be irritating to both opponent and court. The opponent may have to start his Answers afresh to be sure he has covered everything. That can be a complete waste of time and expense. So, this practice should be avoided. If used inappropriately it may lead to a special ruling on expenses.
If only one or two changes are proposed it may be simpler to make them by spelling out what the specific changes are. For example, you might simply write to say that you want to delete from line 4 on page 3 starting with the words “The X” down to line 9 ending with the words “the Y”, and substituting therefore: “Z etc.”
It is the practice in some courts, after the adjustment stage, to have the Application and Answers printed up together. The result is in a book or pamphlet form with statement 1. followed by answer 1. and so on. This book is called the “Record” – pronounced as in “recording”. The stage when adjustment stops is called the “closing of the record”. You may occasionally hear mention of “closing the record” or of a “closed record” as a way to refer to the stage after the time allowed for adjustment has ended. But the Land Court does not require the final pleadings to be made up in this way. We do, however, like a clean top copy from each side showing their pleadings as adjusted.
As we have seen, the pleadings are the formal written statements of the case on each side. Normally this means the Application, with its Statement of Facts, on the one side, and the respondent’s Answers on the other. These two documents as adjusted will be the “pleadings”.
In some cases, it may be convenient to have another document or set of documents. For example, it might be easier in straightforward cases to have the applicant produce a simple written Response to the Answers rather than have a process of adjustment. Sometimes a particular problem will arise in the middle of a case and the court may ask for a separate statement setting out the contentions on that specific separate issue. We usually call such a statement a “minute”. (It may be worth explaining that lawyers use the word “minute” to describe any formal document which is to go before a court if it doesn’t have a more specific name.)
One special example of a separate additional document being used in an existing action is where the respondent wishes to make some separate claim against the applicant. If that claim arises out of the same facts and circumstances as the original application, it may make sense to allow it to be added to the original court process. This allows all the issues to be sorted in the one action. The respondent’s own claim would go in by way of a separate document called a “Counterclaim”. An order would then be pronounced giving the original applicant an opportunity to lodge Answers to the Counter-claim. Separate adjustment of the Counterclaim and Answers would be allowed.
Distinction must be made between things said in pleadings; things said in letters to the court clerk and statements made in the witness box. All involve assertions of one sort or another but they have quite different effects.
Statements made in written pleadings are usually referred to as “averments”. Pleadings are not part of the evidence. However, material in pleadings may come to be used by the court in reaching its decision. The Court is always entitled to rely on averments which have been admitted. Admitted averments are part of the evidence in the case. Sometimes it will be clear that a party is relying on what he has said in his pleadings and, in effect, adopting it as part of his evidence. The court will have regard to that. The court may also refer to pleadings where they are different from the evidence given in the witness box. The contrast may suggest that the evidence is not reliable. Changes in pleadings as part of the adjustment process may also be referred to as suggesting that a particular case is not reliable.
A distinction must also be made between what is said in pleadings and statements made in ordinary letters to the court. It is important to stress that letters are dealt with by the court clerk not by the court itself. Letters are not part of the case. They are neither pleadings nor productions. When the Court prepares for a hearing it will read all the pleadings and see the productions. But it will not read all the office files. Accordingly, anything intended to be relied on at a hearing must be covered by the pleadings or lodged as a production.
It is a common mistake for inexperienced litigants to want to tell the court their side of things at every stage. But letters to court staff will only come to the attention of a court if they contain some formal request which needs attention by the court. If such a request is made it should be set out at the start of the letter and the rest of the letter should be limited to material supporting that request. Material intended for the clerks should go in a separate letter.
Sometimes litigants will put requests or suggestions in a letter which can be taken as being no more than things for the clerk to consider. The problem usually arises in relation to minor procedural issues. If you want the Court to decide on a matter you must make it clear that you want the Court itself to make a formal decision. Lawyers use the expression “moving the court” to refer to the process of formally asking the court to do something. The formal request is known as a “motion”. The Court does not insist on technical formality where intentions are clear, but it is always easier to identify intentions expressed in a formal way. If you are not comfortable with a formal term such as “motion” or “moving the court” to do something, you should just say that “the court is asked to order” whatever it is you want. If you think the matter can be dealt with on your written request you should say so and give any written arguments in support of your request. The Court will tell your opponent what you want and give them a chance to answer. The Court will either decide on the written material or fix a short hearing to consider that particular request.
© 2011, Scottish Land Court