Plain Guide to Litigation: Preparation for hearings


2. Types of hearing

Proof

Where the Order refers simply to a “hearing”, the Court will expect to hold a full hearing at which all issues in the case can be dealt with. That is often referred to as a “proof”. It is the stage when the parties get an opportunity to prove their case. In Scotland, we only use the word “trial” to refer to criminal trials or jury cases but it may help you to think of the proof hearing as being like a trial.

Where the hearing is to be a proof, the purpose is to allow the various parties to lead evidence in support of the case each has set out in the written pleadings. The hearing is the only time you will be given an opportunity to give evidence yourself or lead evidence from witnesses in support of your case. You must be prepared to present your whole case to the court and that, of course, includes dealing with anything you dispute about your opponent’s case.

This means that some time well ahead of the proof you will have to sit down and think about what evidence, including which witnesses, you are going to need. Ideally, of course, you should think about what evidence and witnesses are available to prove your case before you ever get involved in the litigation. But, inevitably, things look different in light of the exchange of pleadings. You should be able to see from the written pleadings what matters of fact are in dispute and be prepared to put evidence to the court to support your side. You should be familiar with your opponent’s pleadings and productions and prepared to present any evidence to challenge, contradict or explain that material.

It is obviously important to be clear about what is agreed. If this is not clear from the pleadings you should check with the other side. There is no point in taking time to present evidence about matters which are not in dispute. If there is something in your pleadings which you think your opponent should be agreeing, you can ask them specifically. If there is no adequate response you could consider asking the court for an order compelling your opponent to admit or deny that particular point. Of course, it might often be simpler just to assume it was disputed and lead your own evidence to be on the safe side.

As we have said, one aim of the pleadings is to allow parties to see what is in dispute. But it is very common to find that parties realise they can agree a lot more than they have set out in the pleadings. It is common to find them coming along on the morning of the hearing with a statement of other points they are agreed about. This may be called a “Joint Minute” because it is usual to refer to formal statements as “minutes” and a “joint” one is simply a minute agreed by the parties jointly. It could be referred to simply as an agreement.

All courts are keen to encourage agreement – even at the last moment. It is helpful for the court to be informed of any agreements as soon as possible and even at the last minute, as this may well shorten the time the court has to spend in preparation.

It is up to you to decide what evidence to present to the court. You must decide who should be asked to give evidence. You must decide what documents should be put before the court. You have to make any enquiries to trace possible sources of evidence. The court may be able to help you by ordering people who have relevant documents to send them into the court. If your witnesses are happy to attend the hearing and give evidence voluntarily and you feel you are able to trust them to do so you can do that. But if you want to compel their attendance you can ask the court to order them to attend.

It is very common to hear a witness, under cross examination, say that if they had known about some point they could have brought something to prove it. This may range from a diary to full business records or might simply be an invoice or similar piece of paper. It is not uncommon to find witnesses trying to fish in their handbag or briefcase to find a paper they want to tell the court about. But such bits of paper, if they are to be referred to as part of a witness’s evidence, should be put in formally as productions. If the first mention of some written material is when the witness is actually in the courtroom, the judge will often tell them to put it away and not refer to it. This is because there are Rules which require written material to be intimated in advance of the hearing. It may be very unfair to the other side to have something popping up at the last minute. If the court does decide that, in the interests of overall justice, this material can be produced, there often has to be a delay to have copies made for the other side and the court. Delay costs money. The lesson is clear. When talking to your witnesses about their evidence you should think about all the points which might arise and ask if they have any material to back up what they are saying. If so, you should try to get it, and put it in to the court, in proper time as a production.

If the witness is reluctant to let you have the original material, ask for a chance to make copies. Lodge the copies in time and then make sure he or she brings the originals to court on the day in case there is any dispute about the copies. If you know a witness is likely to have relevant written material – such as accounts or other records – and the witness refuses to let you see it or have it, you can ask the court to compel the witness to produce the material. You must do this well in advance of the proof.

A witness may refer to something which some other person might be able to prove. For example if a particular sequence of dates was important, a witness might try to pin down a date by reference to some other event. For example, he might remember it as the day the cattle feed was delivered. An invoice from the feed supplier might be helpful. If the matter was important, the court could order the supplier to produce his records of the delivery. As always, a balance must be drawn. Some supposed supporting evidence might raise more questions than it answered. There would be little point in proving the date of the feed delivery if the main dispute was whether the witness was telling the truth or not. Some things are obvious. Where matters can easily be checked it can be assumed that a witness would not run the risk of conviction for perjury. For example, if a witness says something happened on his birthday, you might question whether it took place on that date but you would not expect to need a birth certificate to confirm the birthday.

Debate

The Order may say that the hearing is to be limited to a special purpose. That purpose should be clear from the terms of the Order but the common alternative to a “proof” is a “debate”. A debate is a hearing of legal arguments. Usually legal questions are tied up with questions of fact and are dealt with after a proof: in other words, we usually need to know precisely what the facts are before it can be decided how the law applies. However, there may be cases where the answer to a legal question would dispose of the whole or part of the case without need for time to be spent hearing evidence. At a debate the party challenging the legal basis of the other side’s case has to assume, for the purposes of the debate only, that everything the other side says is true. They have to argue that even if it is all true, it is not enough to establish a good case in law. If they succeed with such argument, there would be no point in the expense of a proof. Even where there is a dispute about facts, parties are often able to settle cases by agreement or compromise after a court has given a view on the legal questions.

If the Order says the hearing is to be a “debate”, there will be no question of taking evidence from witnesses and, accordingly, witnesses need not attend. The court will hear legal submissions only. Sometimes the Court will, itself, decide that a debate would be the best way of making progress even if no specific legal dispute has been clearly identified by the parties. You can expect to find the reasons for this to be set out in a Note attached to the Order.

If you think that the answer to a legal point might save significant time arguing over questions of fact or allow settlement, you should bring this to the attention of the court staff as soon as possible. Even after an order has been made fixing a proof, the Court is willing to consider fixing a debate instead. It is not uncommon for people to come to realise at a late stage in their preparations for a hearing, that the real dispute is a question of law. It is better to raise the matter at the last minute than go ahead with an unnecessary proof.

Restricted hearing

Occasionally a proof will be restricted to some specific question. Usually attempts to deal separately with particular disputes of fact cause more trouble than they are worth. But if you think that time and effort might be saved by dealing with issues in turn, you should not hesitate to suggest this to the other side or ask the court to consider it. The Clerk might be able to give advice or you could make a formal motion to the court to have procedure considered.

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