Although some cases can be dealt with “on paper” (that is, the Tribunal can consider the application in its offices without any hearing, but looking only at the written material available), most disputed cases need to be heard by the Tribunal.
- It is possible for a case to be heard by just one of the Tribunal Members — this is often done when the issues are essentially legal.
- It is more common to combine the legal and surveying skills by sitting with two Members.
- If a case raises particular matters of importance or precedent, three members may sit.
It is also possible for the President to direct that an assessor with specialist knowledge (for example, in farming) should be asked to assist the Tribunal in any case where he considers this to be appropriate.
How soon will the case be heard?
The main consideration is to give the affected parties adequate time to prepare for the hearing. Normally the Tribunal will try to allow at least a month for this preparation, and fix a convenient date as soon as possible thereafter. The time will depend on other factors, such as the availability of advocates, solicitors or expert witnesses, and the other cases waiting to be heard. The Land Reform (Scotland) Act 2003 lays down a special timetable and cases under that Act will have priority over all other cases.
Hearings are notified to the affected parties by a formal Order, 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 Tribunal normally holds hearings at a place that suits the affected parties, as near as possible to the property or land in dispute. This allows the Tribunal Members to inspect the location concerned, which is often a necessary part of the process.
Do I need to make any preparations for a hearing?
Yes. You will need to prepare and lodge any productions you intend to present. You will need to arrange for any witnesses to attend. Also, it assists the Tribunal if you provide in advance a list of witnesses you may call and authorities to which you may refer. You will find more about productions, witnesses and authorities on the Guidance Note for Hearings which will be sent to you when the date for hearing is fixed.
What takes place in a hearing?
At a hearing, the Tribunal 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 will then be asked to present 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.
You should note that (except in cases where the Tribunal is acting as arbiter under a joint reference of consent, which will be heard in private if parties so request) hearings are held in public, and members of the public will be entitled to stay throughout. People who are to be witnesses will very often but not always be kept out of the hearing until they give their evidence.
The Tribunal 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 Tribunal will normally inspect the relevant locations. The Tribunal cannot take any further evidence at the inspection, but parties may accompany the Tribunal and draw the Tribunal’s attention to any matter they think appropriate.
What happens next?
At the close of the hearing, the Tribunal will usually invite parties to make submissions on the question of expenses. While there are certain cases where where the Tribunal does not have the power to award expenses or where legislation lays down how an award may be determined, generally the Tribunal has the discretion to deal with expenses as it sees fit. Normally expenses are awarded to the successful party. You will find more about expenses on the Frequently Asked Questions page.
Following the hearing and any inspection, the Tribunal considers all the evidence and submissions and issues its written decision on the application. The decision is usually available within a period of eight weeks from the hearing.
Copyright 2005, The Lands Tribunal for Scotland
