Plain Guide to Litigation: Introduction
People who work in courts do not talk about “DIY” litigation. In Scottish courts, people who conduct their cases without a lawyer are known as “party litigants”. In England they are called “litigants in person”. But they might well be called “DIY litigants”. This guide was initially intended simply for them. But, it has grown a bit and we hope it will also be of interest to lawyers who find themselves involved in litigation without having had a chance to acquire much experience. Put shortly, this guide is for people who want to get an understanding of some of the basic thinking underlying the various formal rules and procedures governing litigation practice. Although it is intended to cover litigation in the Land Court, it tries to deal with the theory behind litigation practices generally. Where we are speaking of aspects of practice in the Land Court which might not apply in all other courts we normally use the word “Court” with a capital letter.
For ease of reading, we have made free use of the first person plural, “we”, but this is used in a loose sense. This Guide is not expressing any “official view” of the Scottish Land Court. Like all courts, the Land Court procedures are governed by its own Rules of Court. This Guide does not attempt to set out any of the specific Rules; it is a general guide to help an understanding of why there are rules. It does not replace the Rules. For completeness it may be noted that we are in the process of preparing new rules for the Court but these should not affect the material in this Guide.
A lot of stuff is available to help the traditional DIY enthusiast. This Guide is not quite the same. For a start, people involved in DIY in the courts can hardly be described as “enthusiasts”. But, more important, this is not so much about “How to do it” as about “Why it is done”. The intention is just to explain a bit about the theory behind the various steps of procedure to give people a better understanding of what everyone involved should be trying to achieve at each stage. A bit of “How to do it” material is included as part of the overall explanation but we make no attempt to deal with precise rules, time-tables and the like.
Some types of litigation are comparatively easy for people appearing without legal assistance. In the Sheriff Court, various pamphlets are available dealing with the steps of procedure in Small Claims and Summary Causes. Although, we go on to explain that actual procedure in the Land Court is not difficult for a layman, the Court is, essentially, dealing with disputes over rights related to tenancies of land and these tend to be a more complicated type of litigation than small cases in the Sheriff Court. If your case is in the Sheriff Court you may find some assistance in this Guide but your start point ought to be the Sheriff Court publications – available from that Court or their web site. Do not be put off by all the matters of detail we have tried to cover for Land Court purposes.
DIY litigants are not “enthusiasts” because they are almost invariably driven entirely by cost. Unlike the average DIY worker, they have no opportunity to start on easy things. They will be caught up, as complete beginners, in matters which may well be of great importance to them. As the next section makes clear, it is possible to carry on a Land Court case without knowing much about rules or procedures. But we make no apology for dealing with matters in some detail. The more you understand the easier the process should be.
Inevitably, court procedures involve matters of detail which need names. The names are part of the ordinary English language but because most people are not used to courts the words may not be familiar and the dictionary definitions are usually too short to be entirely helpful. We try to explain most names in the Guide itself but, as part of our work with new Rules, we prepared a “Glossary”. You can find that on our web site. It covers most of the unfamiliar words you might come across. You might find that Chambers Dictionary also helps on occasion. (It seems to have more Scots law terms than other dictionaries.)
People do have different views about practice and procedure. We are always aiming to find the best way of doing things. We think that this Guide is reasonably reflective of good practice. We shall try to keep it up-to-date. Our Principal Clerk would be glad to have any comments on it.
We hope to show that procedure is largely a matter of common sense and that Land Court procedure presents no undue difficulties as a DIY exercise. Unfortunately, it is necessary to stress from the outset that although you can expect to limit expenditure on your own case by doing without the help of a lawyer, you cannot avoid the risk of liability to pay all the other side’s legal expenses if you lose. Doing without a lawyer may prove a false economy. We deal with expenses towards the end of this Guide. You should be sure you understand the implications before you start.
If you do not want to represent yourself but do not want to employ a lawyer, the Land Court will usually allow you to be represented by a friend or relative. Alternatively, you might be allowed to be represented by a member of some other profession, but the Court will want to be satisfied that the person involved is a suitable person to conduct a litigation. Such a person will not be entitled to charge you for his or her work unless the Court agrees.
© 2011, Scottish Land Court