Plain Guide to Litigation: The hearing and subsequent matters
In any Land Court case, the clerk will be available on the day of the hearing, before the court starts, to deal with any questions about procedure. You should aim to be at the court in good time before the start of the hearing. This not only allows you to familiarise yourself with the place but gives time for discussion with the clerk and with your opponent. There are often questions about late productions, minor late amendments or questions about the availability of witnesses. Sometimes the clerk will be able to tell you that the court will want to start the hearing by clarifying some particular points and that will give you time to think about them.
Although discussion of settlement should take place long before the door of the court is reached, it is well recognised that the prospect of actually appearing in a court room is often a further stimulus to sensible discussion between parties. It is an unfortunate fact that this may be the first time the parties have been together in the same building since the dispute started. The court will usually be prepared to delay the start of a case to allow discussion of late settlement proposals or to allow a party to consider the implications of any new material or information. But loss of actual sitting time can be very expensive for the parties. As we have already said, there is a risk that any time lost during the hearing might push things into another day. It is not easy to predict when that will happen and accordingly the aim is to minimise even short delays. So, it makes sense for both parties to arrive in good time to deal with last minute problems and any last minute proposals before the hearing starts.
Once the hearing starts, the Court does try to be as informal as possible. But experience shows that a degree of formality is helpful. It lets both sides know clearly what is going on. When the Chairman or Deputy Chairman is sitting he can be addressed formally as “My Lord” or “Your Lordship”. Other Members of the Court should be addressed as “Sir”. But it is not necessary to worry about this. Polite witnesses will get a polite hearing whether they use the correct formal words or not. If in doubt, do not trouble to use any such names. Just speak direct and tell your witnesses to do the same.
Traditionally, lawyers in court would refer to each other in formal terms as “my friend” or, if the reference was to a member of the Faculty of Advocates, as “my learned friend”. However, a DIY litigant should normally use the usual Mr X or Ms X and that is increasingly the practice of lawyers, too.
It may be helpful to know that lawyers sometimes refer to a court as “the Bench”. The litigants or pleaders may be referred to as “the Bar”. You need not ever use such terms yourself. You can refer to the court as “the court”.
DIY litigants often benefit from having a friend with them who is familiar with their case but not a potential witness. The friend might sit beside them and give advice or simply provide moral support by their presence. We comment below on ways a friend can help when you are giving evidence yourself. The Court is flexible in allowing friends to play a part in the hearing. If the friend is to do more than provide moral support, the Court will wish to be satisfied that they will contribute constructively to the overall course of justice. Very occasionally, the Court may refuse to allow some person to become involved but that is a rare occurrence and a genuine friend will normally be welcomed.
© 2011, Scottish Land Court