Glossary

We have provided a glossary because many words commonly used by lawyers in relation to court procedures may not be familiar to lay users. The glossary set out below gives guidance to such words.

We add a word of warning that in any set of rules some words may be given a special meaning by definition provisions. This practice will be familiar from many formal documents, such as insurance policies and conditions for operating a bank account. When working with the Court Rules you should check which words have been given special meanings by looking at the Interpretation provision in Rule 2. This glossary is not intended to lay down any fixed meanings. It was created simply to help understanding. You may, possibly, find some differences between the explanations below and comments in the “DIY Guide” — which can also be found on our web site. If confused, do not hesitate to ask the Principal Clerk for clarification.

absolvitor
This term is not normally used in the Land Court but it can be applied to an order granted in favour of a respondent which makes it clear that the applicant is not allowed to raise another action against that respondent on the same grounds. That is the usual effect of a court decision but sometimes a Court may simply “dismiss” an application because the applicant has failed to do something properly. In that situation the applicant is free to try again.
adjustment
After the initial exchange of application and answers, the parties may need to have a chance to correct or add to their pleadings. This is known as “adjustment”. The Court will usually allow a specific period within which any changes may be made. If a party wants to make changes at a later stage, special permission will be needed. Changes made by special permission are referred to as “amendments”. Note that some types of change such as change to detail of parties or changes to what they are asking the Court to do — that is changes to the crave — need special permission and have to be done by way of amendment even if done during a period allowed for general “adjustment”.
adminicle of evidence
Strictly speaking, any piece of evidence supporting a particular argument may be said to be an adminicle of evidence but lawyers often tend to use the term when speaking of small pieces of evidence which are not of great weight in themselves but which they hope the court will accept as giving at least some support to their case.
affidavit
An affidavit is a formal statement given on oath which may be used as evidence without the maker of it attending court. Evidence by affidavit may not be as persuasive as evidence which has been tested in court.
caution
Pronounced “cayshun”, this term is used when money or equivalent has to be put down as a guarantee in respect of a potential obligation. The usual example is when side A has to deposit money which will cover all or part of side B’s expenses if A loses.
commission
This is a formal authority given to a person by the court allowing that person to act on behalf of the Court in certain procedural matters.
competent
Broadly, this means that some particular application or procedural step is legally permissible. The term is often used in relation to the powers of a court. The Land Court depends on statute for its powers. If it has not been given a statutory power to deal with some question it will not be “competent” for it to try to do so. It should, of course, be noted that it is a court and, as such, has wide powers in relation to procedural matters. The court can deal with most ancillary matters necessary to determine any substantive issues competently before it.
crave
The formal statement in an application saying what order the court is being asked to make is often referred to as the “crave”.
decree in absence
This is an order of the court issued on the assumption that proper intimation has been made to the respondent and where the respondent has not intimated opposition. It may be easier to recall such a decree than one made after a full hearing.
diligence
This term applies to the various procedures available to compel people to do things backed by authority of the court and with penalties for failure to comply.
expenses
The legal costs incurred in running a case before the court. It covers fees paid to the court and fees and outlays paid to witnesses, the cost of copying, and, of course, charges made by solicitors and counsel. The usual rule is that the winning side is entitled to recover the cost of the action from the losing side but there are some exceptions to this in the Land Court.
haver
A “haver” is a person who is thought to have in his or her possession documents or real evidence relevant to a case. Even where that person is not a party to the case, the Court can to order them to make specified material available for use as evidence.
hearing
Our procedure includes various types of hearing. The term normally means a “full hearing”, the stage at which all the evidence and submissions which a party may wish to put before the court will be heard. It is the same as what in the Court of Session and Sheriff Court is known as a “proof” or a “proof before answer” (see below) and in some other jurisdictions a “trial”. More particular uses of the term are as follows;-
  • A procedural hearing is a hearing fixed solely to decide on further procedures to be followed. No evidence will be heard and no decision bearing on the merits will be taken on the basis of such a hearing.
  • A hearing on submissions is a hearing at which the court hears argument based on all the various pieces of evidence which have been presented such as what witnesses have said, documents, plans, photographs or affidavits, and may take a decision bearing on all or part of the merits of a case, including an interim decision.
  • A debate hearing is a hearing of legal arguments only. In the Court of Session this is heard on “the Procedure Roll” and solicitors sometimes refer to hearings about matters of law as “Procedure Roll debates”; not to be confused with a “procedural” hearing.
  • A proof before answer is a full hearing and the term is not used formally in the Land Court. It is used in some courts where the court has recognised that here is a legal issue to be decided but that it is necessary to hear the facts first. So the term is often used by lawyers to refer to any hearing when there is to be a dispute about facts and about the law. Most cases tend to involve both.
  • A hearing by order. We do not use the term “by order” in a strict sense but lawyers familiar with practice in the Court of Session sometimes use it as a shorthand for any hearing ordered by the Court to consider further procedure.
interrogatories
This term is applied to a set of written questions, approved by the court in advance, to be put by a person appointed by the court to a witness who cannot attend the hearing. The expression “cross-interrogatories” is applied to the questions to be put by way of cross-examination. The answers are recorded and may become part of the evidence in the case
jurisdiction
In Scotland there are a number of different courts and tribunals. They are given powers to deal with different types of case. These powers define the “jurisdiction” of the particular body. A court cannot deal with matters which are beyond the scope of the powers it has. Where an applicant asks the court to do something beyond its powers, the application is said to be “incompetent” or “outwith its jurisdiction”.
live link
This means a live television link or some other arrangement, by which the witness, party or representative, as the case may be, is able to be seen and heard, or simply to be heard, in the proceedings and is able to see and hear, or hear, the proceedings while at a place other than the hearing room.
merits
It is sometimes necessary to distinguish between disputes about matters of procedure on the one hand and, on the other, disputes about the substantive issues in the case. The substantive questions in dispute may be referred to as “the merits”. Such reference should not be misunderstood as implying that a particular argument has, or has not, any actual merit.
month
A calendar month. Where something has to be done within a month of a specified date it may be done up to the end of the day in the following month bearing the same number as that date.
motion
The name given to any formal request by a party asking — or moving — the court to make an order. Use of the words “motion” or “moving” helps to distinguish such requests to the Court from informal comments or suggestions made in correspondence to the Clerks. The latter will not necessarily be drawn to the attention of the court.
move
When a party makes a formal request to the court, he is said to move the court to do something, or move that it be done.
oath
Evidence is usually given on oath or by affirmation. Both are solemn promises to tell the truth. Anyone who gives false evidence after taking the oath or making an affirmation is liable to criminal prosecution.
ordinary form
When used to refer to a written application, this means the standard form used for applications for which no special form is provided.
ordinary procedure
The usual procedure determined by the court or fixed in accordance with all the Rules except special rules such as the Rules applying to appeals.
person
“Person” includes any body or association of persons incorporated or unincorporated, such as a company or partnership.
pleadings
This term applies to the initial application in a case and to any document lodged in response to an order of the court which sets out the assertions and contentions upon which a party’s case is based. These documents may be varied by adjustment or amendment. The aim of pleadings is to give the other parties fair notice of the basis of your case in fact and law. Accordingly, it is not expected that pleadings will be set out in the style of a persuasive argument.
pleas or pleas-in-law
Formal statements of legal propositions on which a case is based. Our Rules and forms do not require formal “pleas-in-law” to be stated but it is usually helpful to set out briefly the legal propositions on which the case is based.
productions
Evidence in support of a party’s contentions usually takes the form of either of evidence of witnesses given in court or evidence derived from documents, plans or other such items. If a party intends to rely on the latter, such material must be formally “produced”, that is, lodged with the court as a production. Formal documents may be said to “speak for themselves” but other documents should either be agreed as “being what they bear to be” or spoken to by a witness. Most documents can and should be able to be agreed in this way. A document which looks like a letter may “bear to be” a letter from an identified sender to an identified recipient sent on an identified date. Agreement that it is what it bears to be, does not mean that any facts stated in it are agreed to be true. If that is also agreed this should be made clear.
real evidence
This expression is used loosely to refer to evidence other than the written or oral evidence of witnesses. It is evidence in some tangible, physical form.
recorded delivery service
This includes any method of service or intimation of a document whereby a record of delivery is kept by a responsible independent person.
reduction
Where there is a formal document which has, on the face of it, some legal effect, the proper way to have it set aside or cancelled is by having it “reduced”. This usually has to be done by an action of “reduction” in the Court of Session although the Land Court has power to grant reduction in agricultural holdings cases under section 84(1)(d) of the Agricultural Holdings (Scotland) Act 2003. A party faced with such a document by the other side may sometimes be able to ask the court simply to ignore it for the purposes of the case. That is known as setting it aside by way of exception (“ope exceptionis”). Public documents normally need a formal process of reduction.
relevant
This word is used in its normal English sense. Something is relevant when it has a bearing on the issues to be decided. It is a very important concept in most legal cases because it is not always easy to tell which facts do have a proper bearing on the legal issue. For example, many statutes lay down particular tests to be applied and material which is not covered by the tests laid down will be irrelevant. It is not uncommon to find that personal details of great importance to the client are not relevant to the legal issues in dispute. When the facts are complicated it may be hard to work out which parts are relevant to the particular issue. There will be no point in taking time to prove something which will have no bearing on the proper legal test at the end of the day. So lawyers are always keen to decide as soon as possible what facts are relevant to the real issues.

There is often confusion between what is “competent” and what is “relevant”. We do not attach undue importance to the labels.

reponing
Where someone has allowed some step in procedure to happen without objecting in time he may ask to be “reponed”. In other words to be put back into the case as if he had done things in time.
respondent
The term is used to describe persons who are likely to have an interest to oppose any application and are accordingly named in the application. At later stages of the case the term “respondent” will be applied only to any party or parties actively opposing the application. It should be noted that for the purposes of court procedures the term “party” does not include a person who has been named as a respondent in an application unless that person has come into the litigation by submitting appropriate pleadings.
sisting a case or cause
“Sisting”, in this sense, is like the operation of a “pause” button. The running of time in the litigation is halted. Parties do not require to take positive action as regards the court procedures while a case is sisted.
sisting a person
“Sisting”, in this sense. has a quite different meaning, namely adding that person formally to a legal process.
special case
A type of appeal on a point of law open in relation to most decisions of the court other than those under the Agricultural Holdings legislation. The court confirms the findings in fact which it has made and the party taking the appeal must set out any questions of law arising out of these facts which they wish the Court of Session to answer. These answers will tell the Land Court the correct law to apply and if necessary, the court will have to change its original decision to comply with the answer given.
submissions
This is just another term for arguments and is used as a contrast with the stage of presenting evidence. It is usually used after the court has heard the evidence and describes the stage when a party tries to present his, or her, side of the case in its best light to the court. It may be used to include legal submissions either at debate or as part of the stage of submissions on evidence. In other words, “submissions” covers the stage of detailed examination of the law or of the evidence and law. See also written submissions.
submit appropriate pleadings
This means the submission of an application or the timeous lodging of any answers or similar document in compliance with the terms of any Order of the court.
summary procedure
An accelerated form of procedure intended for use in fairly simple and straightforward cases. It will usually involve a very early hearing being fixed at which parties may make such answers, submissions and representations, including the presentation of evidence, as may be appropriate to allow the court to make a fair and just determination of the case. Although parties may suggest to the court that a case is suitable for this procedure a decision on that is a matter is for the discretion of the court. (See Rule 16.)
tax
When someone who has had an award of expenses made in their favour lodges with the court an account of these expenses the Auditor of Court may be asked to check that it has been charged properly. This procedure is known as “taxation.”
tender
As a noun, this is the name given to a formal offer made to the other side in an attempt to settle an action. If the award ultimately made by the court is not as high as the offer, the person who made the offer will usually be entitled to his expenses from the date of offer. The Land Court has no hard and fast rules about “tenders” but such offers will be given great weight in considering who should be liable in expenses. They should not be disclosed to the court until after the decision on the merits.
(to) tender
As a verb “tender” may mean either the lodging with the court of a tender or the presentation of any production or pleading to the Court or Clerk with a request that it be accepted as part of the court process.
written submissions
See first submissions. When the court agrees to a case being decided on written submissions this does not mean that it will be decided on the pleadings. The parties will be given an opportunity to set out their contentions on paper. The facts or the material relied on as justifying any inferences of fact should be agreed in the pleadings. The submissions should set out any legal arguments and any contentions parties wish to make about the significance of the established facts. In other words submissions do not add new facts. They are arguments about the law or the evidence. They will be expected to be persuasive in style by comparison with pleadings which are intended simply to give notice. They are simply the written equivalent of submissions.