Although some cases can be dealt with “on paper” (that is, the Court can consider the application in its offices without any hearing, but looking only at the written material available), most disputed cases need to have a hearing at which parties present their respective cases to the Court.
How soon will the case be heard?
The main consideration is to give the parties adequate time to prepare for the hearing. The time will also depend on factors such as the availability of advocates, solicitors or expert witnesses, and the other cases to be heard by the Court.
Hearings are notified to the affected parties by a formal Order of Court, which is sent by Recorded Delivery letter. You should attend the hearing; otherwise you run the risk that the case may go against you by default.
Where are hearings held?
The Court normally holds hearings at a place that suits the affected parties, as near as possible to the land in dispute. This allows the Court Members to inspect the farm or croft concerned, which is often a necessary part of the process.
What takes place in a hearing?
At a hearing, the Court usually invites the applicant to take evidence from witnesses by asking them in turn any relevant questions relating to the matter in dispute. The witnesses may then be cross-examined by the opposing party. Similarly, the opposing party (or parties) lead evidence from their own witnesses, who in turn may be cross-examined by the applicant. Both parties normally conclude by presenting a final submission of their respective cases.
Whether you are the applicant or an opposing party, it is entirely up to you as to whether you present your own case, or have a solicitor or other agent do it on your behalf. As with any form of legal action, it is advisable for you to consult with a solicitor, and in appropriate cases legal aid may be available to you through the Scottish Legal Aid Board. If you choose to appear on your own behalf and wish to give evidence, you will be asked to go into the witness box and the other party will have the opportunity to question you.
Hearings take place in public, and members of the public will be entitled to stay throughout. People who are witnesses will be kept out of the hearing until they give their evidence.
The Court notes all the evidence and submissions at the hearing, and may ask questions of the parties, their witnesses and their agents. Following the hearing, the Court may carry out an inspection of the relevant holding or part of the holding. The Court cannot take any further evidence at the inspection, but parties may accompany the Court and point out features which were referred to in the evidence at the hearing.
What happens next?
Following the hearing and any inspection, the Court considers all the evidence and submissions and issues its written decision on the application.