Plain Guide to Litigation: Preparation for hearings


10. Legal precedents or statutory material

A court will often ask that a list of cases, legal text books, or statutes that might be referred to during submissions should be supplied before the hearing. (As we have said, legal cases relied on as precedents are referred to, sometime rather optimistically, as “authorities”.) It would be usual to have copies of the list sent to the other parties. Nothing is to be gained by attempts to take the other side by surprise. It is worth observing that the Land Court will be receptive to requests for adjournment where a party is caught by surprise on a point of law. The Court does not want to have to make decisions without parties having an adequate opportunity to comment on the appropriate legal issues.

Intimation of authorities in good time will give the court an opportunity to look at them in advance. This reduces the time spent on reading out cases or Acts of Parliament at the Hearing. It also makes it easier for the court to be sure that it is following submissions as they are made. It must be understood, however, that advance intimation of authorities is not a substitute for making full submissions at the hearing. Courts like to hear proper statements of reasons for relying on any particular case. It is very important that all litigants understand that the aim of the court is to apply the correct law to a proper understanding of the facts. The court wants to have a full discussion of any difficult points with the assistance of both parties. That can only happen if the court has a chance to consider matters carefully, before or at the hearing. All too often, the full implications of a point only become apparent when the court comes to consider its decision in private after the hearing. It then has a choice between forcing the parties to incur further expenditure by fixing a further hearing or making the best of things on the basis of such submissions as it has heard. Early intimation of authorities minimises this difficulty.

It may be stressed, however, that any requirement to intimate authorities is not normally intended to prevent you referring to other cases at the hearing. Preparation for submissions inevitably goes on right up to the last minute. Thinking changes. New points come to mind. A litigant can always refer to any relevant case in his submissions whether intimation has been made or not. When both sides are preparing argument on the same issue they ought to become familiar with the same authorities. If an opponent is surprised by a new authority, we shall try to allow time for him or her to consider it.

Copies of authorities

It is helpful to have copies of any material which is thought particularly important. When a hearing takes place in Edinburgh, the Court has easy access to Session Cases, Scots Law Times, Scottish Land Court Reports, standard text books, and its own unreported decisions. However, when the Court is sitting out of Edinburgh, it may be restricted in the number of authorities it can transport. Accordingly, it is usually helpful if an appropriate number of photocopies of all the authorities can be provided. You may assume that the Court will always have available to it a copy of the Crofting legislation or of the Agricultural Holdings (Scotland) Acts, as appropriate, and a copy of its own Rules. If there is any doubt about copying of material, the Clerk should be consulted in good time.

Agreement

We refer above to the need to try to identify disputed facts and to agree as much as possible. This can apply to legal matters. Sometimes you may decide or agree to drop a particular argument at a late stage. One reason for this is that, as the facts become clearer in light of investigation of evidence and the exchange of information, it often becomes clear that potentially doubtful points of law will not actually affect the final outcome. In any event, if you do decide to give up a part of the case which, on the face of the pleadings, seems disputed or likely to be disputed, it is important to tell the other side as soon as possible. For example if you have set out two or three “pleas in law” or “legal contentions” – as mentioned above in our discussion about pleadings – and you later decide that you will not try to argue one of them, you should let the other side know. This is a matter of courtesy and courtesy helps ensure that litigation is conducted in a harmonious way. But it also saves time being spent on preparation of argument to meet that plea. Time costs money. It might be you who would end up paying for it. The Court would also welcome intimation of such matters where appropriate. As we have said, the Land Court does rely on its advance preparation to try to shorten the time spent in the hearing and it does not wish to waste time on matters which have been agreed.

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