Plain Guide to Litigation: Preparation for hearings
This chapter tries to answer the questions which arise in relation to preparation for hearings. A later chapter deals with how hearings are conducted. But it may well be enough, in a simple case, to turn up at the hearing and just say what you have to say about your application or the grounds of your opposition to the other side’s case. If you are in doubt about anything you could refer to the Rules of Court or contact the officers of the court. The court staff will be able to guide you as to the correct procedure and will usually be able to explain procedures to you.
The Court staff will usually discuss the date of hearing in advance with a view to accommodating the requirements of both parties if possible. A formal order fixing the date, time and place of hearing may not be issued until quite near the hearing when all details have been agreed. But, if agreement is not possible, the Court will just have to fix a date and parties and witnesses will be expected to be there.
You should tell the court staff immediately if any special difficulty is expected over the date, time or place. A hearing can be an expensive process. It can normally be assumed that the most important thing is to make maximum use of court time to avoid waste of expense. This means that the convenience of individual witnesses must take second place. Witnesses are expected to be available at any stage in the hearing. But it is often possible to accommodate particular difficulties if they are drawn to the attention of the court in good time.
Because of the nature of Land Court work we can usually allocate only one case for any particular day. In addition to the day or days fixed for the hearing, the Court tries to allow itself some time to prepare and some time to consider its decision. In other words, a time slot is allocated which is wider than the hearing itself. Once a slot has been allocated to one case, it is not available for any other. That is the important point. Where there is a late cancellation, the Court can usually make use of the time to do other work but it will not be able to use the time to hear cases. In other words, the time slot is lost to other parties. That is why the Court will be slow to agree to any postponement of a hearing. It will not do so without very special reason. Agreement of parties is not a special reason.
That is also why the Court seeks to encourage parties to discuss settlement of cases in good time before the hearing. If a case is to be settled it is helpful to other litigants if this can be intimated to the Clerk soon enough for other cases to use the time released. Some cases need only short hearings and even a few weeks notice can make all the difference.
Note that the date and time fixed for the sitting of court is sometimes referred to as the “diet”. So, expressions such as “the diet is discharged” mean simply that the hearing is not to go ahead on the day which had been fixed.
You should check that the proposed venue is appropriate. The place of hearing will have been selected having regard to the convenience of parties and of the Court and will take account of the availability of suitable venues for such a hearing and the nature of the points in dispute. The Court may well have discussed this in advance but, unlike the date, the Court is always prepared to reconsider the venue in light of any change in circumstances. The Court will have regard to overall cost and to questions of convenience including the question of whether the Court will have to visit the land in question. Where Edinburgh based lawyers are involved the overall cost may be less when a hearing is in Edinburgh. This will have to be balanced against cost and inconvenience to witnesses. But, put bluntly, it would be cheaper to pay for your own B&B in Edinburgh than risk the extra costs of lawyers having to travel and stay at a place more convenient to you.
If you think that either you or your witnesses may have any difficulty in getting to the hearing you should advise the court staff as soon as possible. Arrangements can be made to take evidence from people at or near their own homes where a special need can be shown. This should not be seen as an easy option. There are practical difficulties in finding enough space for the court and lawyers to be able to hear and note the evidence and, in any event, a witness can find this exercise very intrusive. So, it is better to aim to take evidence out of the witness’s home, if possible. If a witness simply cannot travel to court, consideration should be given to the possibility of using a suitable room in a local hotel, hall or even solicitor’s office.
The Court is flexible over sitting hours. We usually start on the first day at 10am and sit until about 4.15pm but we can start earlier or finish later to suit the convenience of parties – and the times of flights and ferries. In some places, for example, the first day’s hearing might start at lunch and go on into the evening. Later in the sitting, we try to start each day as early as possible to make best use of available time.
Note that if a witness faces any special difficulty of timing, it may be possible to arrange to hear the evidence of that witness at some fixed time. As always, the important thing is to raise the matter with the court staff and the other side as soon as possible.
© 2011, Scottish Land Court