Plain Guide to Litigation: Preparation for hearings

8. Witnesses

When preparing your case you will realise that some things can be vouched by written material, such as letters, invoices, plans or whatever. On other matters you will need to have evidence from witnesses. You can ask anyone to be a witness. For example, if you believe that your opponent or, perhaps, an employee of your opponent, would be bound to support any important part of your case you could have him compelled to give evidence.

Evidence given in court is the best type of evidence but it is possible to rely simply on a written statement by a witness. Evidence in court is best because the other side has a chance to test it. If a witness stands up well to questions, the court is likely to place much more weight on their evidence than if it had simply been presented on a piece of paper. If you do want to consider using written evidence it would be sensible to have it taken formally by a solicitor as an affidavit. But written evidence is really best kept for formal detail that would not be expected to be open to challenge. If you can find a witness who supports your side of any disputed point you should certainly aim to have that witness give evidence in open court.

Some practical points

  1. You should follow rules of court or any specific order of the court in relation to intimation of witnesses or productions.

  2. If you think that any of your witnesses might have difficulty in giving evidence or in attending the hearing venue, you should notify the court staff as soon as you become aware of this. That will make it easier to make practical arrangements to avoid embarrassment and difficulty for witnesses with disabilities.

  3. Except in the case of very old people the court may need a letter from a doctor to explain why such arrangements are necessary. It should be noted that many private houses are not very suitable the taking of evidence – not enough room and not enough writing surfaces. If a witness may be too infirm to travel to the place appointed for the hearing but able to go somewhere nearer home, consideration should be given to obtaining use of a suitable room in a local office, hall or hotel. The timing of the taking of such evidence should be discussed with the court staff. It could be taken in advance of the hearing, during the hearing, or after the other evidence but it will, almost certainly, need to be heard before the stage of closing submissions.

  4. The Gaelic language has always had, and continues to have, special standing in the Land Court and you can ask to use Gaelic in any part of proceedings before the Court. The Court would only refuse such a request if it thought it would be unjust or unfair to grant it. You should contact the clerk in good time to discuss this. But it is important to realise that the language of the Court is English. Even although we have a Gaelic speaking member, all the evidence must be able to be understood by everyone. So, if evidence is to be given in Gaelic, arrangements will be made to have an interpreter. Similarly if any party or witness does not understand or speak English to a comfortable level the clerk should be advised in good time for arrangements for a suitable interpreter to be put in hand.

  5. It is usual to ask all the witnesses to attend at the start of the hearing but it may be obvious in many cases that some witnesses will not be required to give evidence until a later time or day. It might well be possible in discussion with the clerk and the other side to agree that some witnesses should not come until later. We try to accommodate the convenience of witnesses where possible. We obviously want to avoid having people hanging around unnecessarily, but court time is expensive and it is very difficult to predict how quickly things will progress. Where a witness lives or works near the court, it may be sufficient to have them on the end of the telephone ready to come quickly. Delay which simply gives time for a coffee break is not a problem but there is always a risk that small amounts of time lost can create the significant extra expense of pushing the case into a further day.

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