Plain Guide to Litigation: Introduction

Basic stuff

We start with some simple “How to do it”material. Fortunately, the Land Court is relatively easy to use. All an applicant really must know is how to complete an Application Form. If necessary, the Court staff will give guidance on the right form to use and some guidance as to how it should be completed. Staff will be prepared to give procedural guidance throughout. Once the application is in, subsequent procedure will be spelled out by the Court in a series of formal orders.

It is quite important to keep in mind the difference between the Court’s administrative staff and the Court itself, but we will come back to that point.

For some of the more straightforward cases, the application may need do little more than identify the land involved, in other words, the subjects in question, and describe what the applicant wants the Court to do or decide. Many crofting applications are in that category. A DIY litigant in such cases has no real need to get involved in the detailed theory discussed below. However, we hope that, even in the simple cases, some explanation of why things are being done will be of interest.

After the Application is in, the Court will tell the parties, stage by stage, what has to be done. The first stage is usually intimation. The Court will arrange for a copy of the application to be sent to everyone who might have a right to oppose it and will tell them that, if they do oppose it, they must send their Answers to the Court within a specified time. A person who responds to such intimation is known as a “respondent”. For simplicity we shall go on to discuss matters as if there was just one applicant and one person opposing. It is not uncommon for there to be more than one respondent and the court orders will be adapted to take account of this.

The Application and Answers are the first stage in what we call the “pleadings”. The pleadings are the formal written statements setting out a claim and response. Once each side has seen the other side’s written statements the court will usually make an order allowing a period for each to respond. That stage is known as “adjustment” of pleadings. The idea is to identify as clearly as possible what is in dispute so that it can be seen what the court has to decide.

Once the parties have been given a chance to focus their dispute by adjusting their pleadings, an order will be sent fixing a date for a hearing and telling parties what to do about any documents or written material they wish to rely on when presenting their case at the hearing.

Sometimes a hearing will be limited to discussion, or debate, about a question or questions of law. Either party can ask for a case to be heard this way. Sometimes the Court will suggest it. The order fixing a hearing will make it clear if the hearing is to be limited to a debate. If the order does not refer to any limited purpose, there will be a full hearing.

A full hearing is the stage when you and your witnesses tell the court what they know about matters in dispute and the other side gets a chance to challenge or clarify that evidence and lead evidence of their own. You will have a chance to question or challenge witnesses led for the other side. You will then have to present your arguments based on all the evidence to explain to the court why it should find in your favour. The court will then take time to consider the case and prepare a written decision with its reasons.

The court will then deal with expenses. The State provides the court and charges only modest fees. The main expense comes from lawyers’ time and the time of any expert witnesses. Party litigants may have little expense of their own but must always be aware that the successful party is entitled recover their expenses from the other side. This does mean that party litigants must expect that, if they lose, they will have to pay for the other side’s lawyers and experts.

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