Plain Guide to Litigation: Preparation for hearings

9. Productions

The term “production” includes items such as letters and other documents, photographs and maps which you wish to use as evidence in the case. It also covers physical things. Anything which can be brought to court as evidence is known as a “production”. If it is too big to bring to court, arrangements can be made for it to be made available for inspection elsewhere.

Time limits and late lodging

Sufficient copies of each production should be lodged within the time limits set out in any court Order or Rules. If you do not meet the time limits, the court will not take account of your material unless you get special permission to lodge it late. Leave will not necessarily be given unless the other party or parties consent, or good cause is shown. The other side is likely to object if they have not had a chance to study your material and make preparations to answer it. The Land Court also likes to look at material in advance.

If the court does allow material to be lodged late and considers the material likely to be important, it is very likely to offer the other side an opportunity to take time to consider it. This may require adjournment and a further hearing. This causes extra expense and the person bringing the late material will almost inevitably have to pay for this, whatever the outcome of the case.

Recovery of documents from other people

If a party wishes to rely on documents which are in the possession of someone else, arrangements can be made to order that such material be made available for inspection. If you wish to ask the court to make such an order you must specify which documents or types of documents you wish to see. You will have to satisfy the court that the documents are likely to contain material which is relevant to the case. This means that you will have to start by pointing to some statement in the written pleadings which ties in with the material you want to see. Broadly speaking, you will also have to persuade the court that there is some reason to think the material will be worth recovering.

You should try to make arrangements for this in good time. Once the party who has the documents, (known as the “haver”), makes them available in response to the court order, they will usually be held by the Principal Clerk. It is then for you to decide whether you want to lodge them in court as part of the productions. This is because the haver does not always know what is relevant to the case and may well send in many more documents than are needed. Only you can decide what material you want to use to support your case. You will need to be careful, however, that you do not unfairly pick only the best bits. If parts of a series of correspondence are to be relied on, the court will usually wish to see the whole of the correspondence.

Reliance on written material

It is the general practice of the Land Court to take documents at face value. That is, to accept documents as being what they appear to be and to treat copies as equivalent to originals unless there is some doubt about this. To allow this to be as flexible as possible there is no formal requirement for challenge in advance but parties should be aware of the point and give each other notice of any intended challenge where appropriate.

It is usually unnecessary to lead much evidence about documentary material. The Land Court will regard itself as free to study all the productions lodged and draw reasonable inferences from them in light of the whole evidence in the case. This approach saves a good deal of time and prevents parties being caught out by any special “rules of evidence”. Note that some other courts may have a different approach.

It is important to realise that there may be cases where documents are not all that they seem to be. Photocopying and computers allow easy creation of pieces of paper. The Court is aware of this problem. The weight to be given to written evidence will always be a question of context and circumstances. A document which is spoken to by a witness explaining where it came from, and what it is, will be likely to receive more weight than one which is left to “speak for itself”.

Although the Court will feel free to look at all productions and use them to help reach a decision in the case, the Court will also regard itself as free to ignore any document unless the party who lodged it as a production actually makes some reference to it at the hearing. This is partly because the meaning of some documents may not be clear unless the whole context is understood. If a party has not explained to the court why they say that the document is significant, the court may think that it cannot safely decide what to make of it. It is also possible that a great many documents will be put into court as productions. The court will not wish to study them all unless it is told why each is important.

If you are not happy about a particular piece of written evidence produced by another party you can tell the court, briefly, why it is challenged. Where any party does question a production lodged by another party it will be for the person lodging the document to lead proper evidence to show what the document is, who made it, when it was made and so on. In other words it will be up to the person relying on that evidence to satisfy the court that it is reliable.

There may be cases where it would be sensible to ask the other side in advance whether there will be any dispute that a document can be taken at face value. There is no point in the expense of bringing a witness just to tell the court about a document if this can be avoided. Similarly, a late challenge to a document may give rise to adjournment and extra expense and any intention to argue that a document is not what it seems to be should be intimated to your opponent as soon as possible.

What is meant by accepting a document at face value can be a confusing matter. It is important to realise that there is a difference between accepting a document as being what it seems to be, and accepting the truth of what is said in it. A court may readily accept a document at face value; that is, being what it seems to be, and yet be slow to accept that what it says is correct. An example may help make the point.

Take a boundary dispute and an argument about whether a certain fence had been moved. Assume a photocopy which looks like a copy of a letter sent by “Mary”. If there is an address and a date and no specific challenge a court might accept that it showed that someone called “Mary” living at that address had written it on the date shown. That is not the same as establishing that what was said in the letter was true. The court would have to look at other circumstances to help it decide whether any reliance could be placed on what it said.

Some of this is very obvious. For example, if the letter simply said that “Davie moved the fence ten yards to the North”, the court would need to hear some other evidence to show that the fence being referred to was the same fence as the one in dispute. But perhaps less obvious is the need for evidence to explain how the writer of the letter came to believe that Davie moved the fence. That might be a matter of circumstances. If there was good evidence to show that someone called “Mary” was the working crofter her statement might get more weight than if she had been a summer visitor.

A court can accept a document at face value and yet place no weight at all on its contents. You should always be prepared to lead any other evidence you have, to explain and support any significant document. If it is just a copy you should be able to show why only a copy is available. You should explain why the author of a document is not available to give evidence in court.

When preparing for a proof, you should identify the important points in dispute and try to find the strongest evidence you can about these points. Deciding what evidence to lead and what reliance can be placed on written material can be difficult and the advice of a solicitor might be worth having, in any case of complexity.

Visual aids

Some productions are important for their value as evidence about facts in dispute. For example, an old map may be important in showing what the land was like at the date of the map. Other productions may have no value in relation to the merits of the dispute but be intended just to help the presentation of evidence: to help the court get a good understanding of the significance of other evidence. For example a modern map showing things as they are at the moment would not prove what they were like in 1886. But it might well be of great assistance to the court. The difference between documents being used as evidence to prove something and documents – typically plans and photographs – being used simply as aids to understanding should be kept in mind. The Court will nearly always accept late introduction of productions to be used as visual aids although, as always, it is sensible not to leave things late. It is worth discussing with the other side what aids are necessary. This may save duplication of effort.

The following remarks apply to use of productions as visual aids in the Land Court:

  1. Any evidence given at a hearing requires to be understood by the court and by the other side. Plans and photographs are good for this.

  2. In any event, a map or plan is nearly always necessary in the Land Court because the Court will always wish to have clear identification of the subject land.

  3. If you intend to make much reference to a large map or other large document, consider providing a display board so that it can be shown to everyone at once.

  4. If the Court is sitting out of Edinburgh you may have to provide appropriate equipment yourself so please discuss this with the Clerk. Technology is helpfully producing better and more portable devices and the Court will try to help. It has a laptop and projector which can be taken to most venues. If material can be copied to a memory stick of some sort it will usually be possible to display it. But it cannot be assumed that appropriate devices will be available.

  5. If you want to use items such as a projector or a video or DVD you should tell the Court clerk in good time before the hearing.

  6. To avoid wasting time in court it is obvious that you should check in advance that all equipment is working properly and that any videos, tapes and DVDs are of sufficiently good quality to be likely to be of assistance.

  7. Although the Court will nearly always inspect the subjects after the hearing and will try, if convenient, to have a look at them beforehand, there is no doubt that good plans and a few well chosen photographs will normally speed up the leading of evidence. Even if it is difficult to find a photograph illustrating the precise matters in dispute, photographs are generally helpful in allowing the court and the witnesses to understand what is being talked about.

  8. By contrast, our experience has been that videos tend to delay the proceedings and seldom provide enough positive assistance to justify the waste of time. This is partly because videos are not always as clear to a viewer as they seem to be to the person who made them. But the main problem is that the process of examination and cross-examination of different witnesses about something shown on video can be a fiddly business with much winding and re-winding. It may be that DVDs will come to prove more useful. But parties should not attempt to use them without proper practice and should sure make sure they have good quick means of identifying and accessing the relevant sections.

Note that these comments apply only to photographs, videos and DVDs which are provided as visual aids. Photographs, videos or other recordings showing the state of things in the past may, of course, be valuable pieces of evidence on the merits of the dispute even if they are of poor quality.

Lists of productions

The main aim is to get productions in on time. But some thought might also be given to the fact that when the productions come to be referred to in the course of a hearing, it helps if they have been lodged in a sensible order. If all else fails, an attempt at chronological order should be made. It may well be sensible to hold back productions until a complete set in sensible order can be lodged. Precious time can be lost if witnesses have to move back and forward in a big bundle of papers. In some circumstances, where the productions have initially been lodged in random fashion, it might be worth preparing a duplicate set in workable order. That will depend on the importance of the documents and the number of witnesses who may require to look at the same papers. It would only be justified if the time and expense were likely to lead to significant saving of court time.

Where both sides are relying on the same exchange of correspondence or duplicates of the same plans, it would be helpful if they could discuss matters and avoid unnecessary duplication. Here again, it must be recognised that the time spent on this might not lead to much saving of court time and it is always a question of circumstances how evidence can most efficiently be presented.

In the Land Court, the staff prepare an inventory of all material lodged as productions. Each will be given a court number and be listed in the inventory. When preparing to present a case in court, you should make sure you use the number on the Court inventory when you want to refer to a document. This is to avoid risk of confusion and the risk of losing your place if you have to change your numbering when you are actually in court.

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