Plain Guide to Litigation: Written pleadings


8. Striking the balance

You must be sure that the crave spells out exactly what you want the court to do or decide. If things change in the course of the case you should be alert to the need to ask to amend the crave. It should be precise and without excessive detail.

But in the Statement of Facts you have to strike a balance between giving enough warning and cluttering up pleadings with material which can properly be kept for a hearing. Remember that you will always be given a separate opportunity to present your arguments; either in writing or as part of a hearing. The aim of giving fair notice may require some judgment. Solicitors learn by experience – but often get it wrong! There is no need to spell out all the background and no need to spell out every minor point of disputed fact. But on important aspects it is better to give too much notice than too little. Ask yourself whether the other side would be caught be surprise if you raised a particular point without having set it out in the written pleadings. Land Court cases usually involve disputes between landlords and tenant. In other words they involve people who are well known to each other. A lot of the material relied on will be obvious to both sides. It is comparatively rare for parties to be genuinely prejudiced by want of notice.

Further reading

Serious students might want to be directed to McPhail on Sheriff Court Practice 3rd Edition at Chapter 9. They will find a careful discussion of the law relating to pleading practice in the Sheriff Court and a wealth of cases illustrating the various points. The DIY Land Court litigant is warned that some of the material might be misleading as it relates to the formal requirements of the Sheriff Court.

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