Plain Guide to Litigation: Preparation for hearings


6. Legal issues

Sometimes the order for hearing will specifically ask you to put in a separate note of your legal arguments. We have mentioned that above in trying to clarify the meaning of “written submissions”. It does not happen in all cases because in many cases the dispute is only about questions of fact and in other cases, it may be fairly obvious what the line of legal argument will be. Every step in a court process involves expense and we try to be satisfied that each step is justified in each case. Where the Court does ask for a note of the legal propositions to be advanced, it expects to have details of the statutory provisions which are said to apply and the names of any previously decided cases or legal text books which are relied on.

Cases and textbooks are referred usually to as the “authorities”. Use of this expression does not, of itself, mean that they have any special power or weight. If a previous case has been decided on some relevant point of law, the weight to be given to it will depend on the court which decided it. The Land Court must follow any decisions made by the Inner House of the Court of Session. It is not bound to follow decisions of other courts. But, of course, any previous decision is likely to be used as a guide and is likely to be followed unless there is good reason to depart from it. Broadly speaking, a court is not obliged to follow the views of the authors of legal text books. Material in such works may well be a good start point but when an author is covering the whole of a broad topic they cannot be expected to have examined particular issues with the care which will be expected in a court hearing. You should not approach litigation assuming that a simple statement in a text book will necessarily be a sound basis for your legal claim. Still less should you hope to rely on some statement made in a newspaper, or by an important person, or even in official guidance. The court may look at what such guidance says but the main question will be whether the guidance is accurate.

Put very shortly, if you are relying simply on what has been said in official guidance you ought to be consulting a lawyer rather than risking DIY. If your claim is based on an Act of Parliament or set of Regulations, it is the Act or the Regulation you must be able to rely on, not some guidance on it by another person. There may be a possible claim against that person if the guidance is wrong but this raises issues which require careful legal analysis and which are usually outside the Land Court’s jurisdiction.

Even if the court makes no order requiring intimation of legal arguments, parties should give careful thought to the possibility of providing the other side with a note of their arguments. A good argument might persuade an opponent to withdraw before the hearing. Litigation is not a game. A party who keeps a legal bull point until the end of the case may find the court asking questions in relation to expenses.

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