Guidance note for hearings
This note has been provided for general guidance at the stage of preparing for the hearing of the case. It is really intended for litigants acting without a lawyer. In Scotland such people are known as “party litigants” (although it might be easier to think of them as “DIY litigants”). The guidance is broadly directed at title conditions cases where people often act on their own behalf. However, the general principles apply to most types of case.
The usual approach of the tribunal is to guide litigants through our procedures so that, in practice, it is not necessary for you to worry too much about formal rules or even informal guidance as long as you pay attention to the Orders. In a simple case it may be enough to turn up and tell your story. But this Guide aims to help you understand what is going on and present your case more effectively.
Some formal rules are laid down in the Lands Tribunal for Scotland Rules 2003. This Note is not intended to add to them or to lay down any hard and fast rules. A separate guide to formal rules of procedure is available.
Until the actual hearing, your contact with the Lands Tribunal will probably have only been with the clerk and his staff, not the Members. The expression the “Lands Tribunal” may be used in a vague way to refer to the whole staff or just to the Members but it is quite important to keep the distinction in mind.
It is the job of tribunal staff to deal with administrative matters; in other words to arrange proper procedures for a fair hearing to take place. They play no part in the decision. Although they may try to give guidance when they can, their comments on legal matters are not authoritative. The clerk and his staff will do their best to assist but the scope of their advice is limited. They are not able to advise on whether you have a good case or not. Their advice will not bind the Members when it comes to making a decision. The staff do try to ensure that procedural arrangements are appropriate for disposal of the disputed issues in as fair and efficient a way as possible. They may suggest that a case be dealt with on written submissions or that some specific issues are dealt with separately, but normally their aim is to get matters to a full hearing as soon as they can.
At the hearing it is the Members who have to make all the decisions. The Members are either lawyers or surveyors. The Tribunal which sits to hear your case will usually consist of both a lawyer and a surveyor, although this can vary according to the nature of the case. One of the staff will attend as clerk. It is the job of the Members to decide the case after the parties have had a chance to present their evidence and submissions. Once the evidence is led the parties are given a chance to present their arguments as to what it means; what inferences should be drawn from particular pieces of evidence; and how the law should be applied. Such arguments are usually referred to as “submissions”.
In heavier types of case, arrangements may be made for a preliminary meeting to discuss particular aspects of procedure with the parties. But, in many cases the Members will not see the papers much before the hearing. If you are not satisfied by the arrangements made for a hearing you can always make a request that the Tribunal consider some other way to proceed. Such a request will be considered by the Members.
It is the responsibility of the parties to ensure that all the material they need to rely on is properly presented at the hearing. The Members will conduct the hearing on the basis of the written pleadings. They will consider the written productions and hear evidence of witnesses. They will not be aware of all the correspondence and discussions which parties may have had with staff. So, any material to be relied on at a hearing should be lodged as a production.
A final general observation is that even if you intend to present your own case, legal advice may be valuable at any stage of the case. If you are successful you should be able to recover the cost from the other side in most cases. If you have a weak case a little timeous advice might save you incurring a heavy liability to the other side — or might identify a better line of argument for you.
- The Hearing Order
- Fair notice
- Visual aids
- Evidence of witnesses
- Arrangements for witnesses
The Hearing Order
This is the formal order fixing a hearing. It gives detail of the time and place of hearing. It may give other instructions. Pay careful attention to all it says.
The date will normally have been fixed after discussion with you but you should tell the clerk (or his staff) immediately if any difficulty is expected over the date or place. Unless it can be done well in advance, putting off a hearing will lead to wasted days of Tribunal time. (When fixing a time we usually allow some time for Members’ preparation and for writing and so it is not just the hearing days which will be wasted.) Accordingly, the Tribunal will not allow a late postponement of a hearing without very special reason. Agreement of parties is not a sufficient reason.
The place of hearing will be selected for convenience of parties and tribunal members having regard to availability of suitable venues. If you think that either you or your witnesses may have any difficulty in getting to the place fixed for the hearing you should advise staff as soon as possible. Arrangements can be made to take evidence from people at or near their own homes where there is any specific need for this. (Usually medical reasons will be required to justify this course.)
You should pay particular attention to the time-table set out in the Order. The formal Lands Tribunal for Scotland Rules also provide certain time limits. You must follow the dates in the Order but you may want to know the usual rules as follows:
- Productions must be lodged with the Tribunal at least 14 days before the hearing.
- In cases where reference is to be made to other property by way of comparison details of such properties must be lodged 28 days before the hearing.
- Intimation of a list of witnesses should be made 5 days in advance.
- Intimation of legal authorities should be made to the Tribunal 5 days in advance if possible.
Where the Order refers simply to a “hearing”, the intention is a full hearing at which all aspects of the case will be dealt with. Evidence and submissions of parties will be heard by the Tribunal. A decision will be given on the basis of this material and the site visit.
The purpose of the hearing is, in other words, to allow you to present your side of the case to the Tribunal. You will probably have set out the main points in the written application or answers. The Tribunal will consider these and any written material which has been lodged as well as the evidence of witnesses.
Special types of Hearing
The whole case is usually heard at one hearing. After the hearing no further evidence or argument will be heard. However in some cases there might be an advantage in having a separate preliminary hearing to deal with any difficult legal issues. This is known as a “debate hearing”. This would make sense if the legal point was going to have a significant bearing on the type of evidence which would need to be led at a hearing. In other cases there may be a dispute about the merits of a particular application and a separate question of compensation which would depend on who won the first stage. If you think that it would be better to have your case dealt with in two separate stages you should either say so in written pleadings or advise the staff of your view as soon as possible.
In any event you should read the hearing Order carefully to see whether it is a general hearing or is limited to some particular purpose.
Where there are disputes about procedure the Tribunal will try to deal with them on the basis of written submissions. Where it is necessary to have an oral hearing, it may be possible to have it by telephone or video conference. Sometimes a court hearing is required. Procedural hearings are usually described clearly as such. An unqualified reference to a “hearing” means a full hearing.
The hearing is not usually fixed until Answers have been lodged and parties have been given a chance to make some adjustments so it is not necessary in this guidance to say much about the pleadings. However, you should be aware that “pleadings” is the name usually given to the formal documents submitted by parties setting out their side of the case. The pleadings do not include all the various pieces of correspondence between the parties and the Tribunal staff. The members of the Tribunal which hears the case will have studied the pleadings before the hearing but will not be aware of all the detail of correspondence or discussion with staff.
One important feature of pleadings is that the written documents must give proper notice of what it is the applicant wants the tribunal to do. Pleadings should also give notice of what it is that you rely on to justify a finding in your favour. But pleadings are also intended to allow the Tribunal and the other side to identify clearly what is in dispute. They should be used to admit or agree material which is not disputed.
It is often quite difficult to know how much needs to be said to give fair notice. We know that what is in dispute will often be quite clear to parties and elaborate pleadings may simply create confusion. Every attempt should be made to identify the important points without getting bogged down with unnecessary detail.
Even after a hearing has been fixed, every opportunity should be taken to identify, as clearly as possible, what the Tribunal is to be asked to make a decision on. The more limited the dispute the cheaper the process should be and the quicker the decision. This should be the aim from the start but late clarification is better than no clarification.
It is important to give fair notice to your opponent of all the matters you intend to rely on. What is needed for “fair notice” is a matter of circumstances. The point is that the tribunal wants to hear all evidence which will help it reach the right decision. But it also wants to be sure that it hears both sides of the argument. If you raise an issue at the hearing which your opponent knows about and be able to answer on the spot, no problem of notice arises. If you wish to raise an issue which your opponent would want time to consider and perhaps find other evidence about, you should give notice. Taking the other side by surprise, will not give you an advantage, it will just lead to waste of time.
Usually it will be obvious enough what type of material needs advance notice. If in doubt, say something in written pleadings. If it is only at a late stage that you realise there may be a doubt about this or you wish to add some point, give clear written intimation to the opponent and tribunal staff as soon as possible.
“Productions” cover all the various types of evidence which might be presented at a hearing other than the direct oral evidence of witnesses. Note that it includes expert reports even when these are to be spoken to by a witness. More generally, it includes items such as letters, deeds and other documents, and photographs, plans and maps. It includes things relied on to prove part of your case and also models, maps, photographs, and the like, used simply to help make things clear to the Tribunal. (See Visual aids.) Where copies can be made, these should be lodged within the time limits set out in any Order.
If you do not meet the time limits the Tribunal will not look at your material unless you get special permission to lodge it late. Except where the production is simply intended as a “visual aid” leave will not be given unless the other party or parties consent or some good cause is shown. The other side is likely to object if they have not had a chance to study your material and make preparations to answer it. The Tribunal also likes to look at material in advance. It does not want last minute productions.
It is fairly unusual for there to be any dispute about the nature of documents or copies. It is therefore the practice of the Tribunal to treat documents as being what they appear to be and to regard copies as equivalent to principals unless this is questioned. We do not require to have evidence proving the documents. (See further under Evidential value of written material.)
However, sometimes a production will be challenged as not being a reliable copy of the original or it will be argued that a particular letter was never received by the person it appears to be addressed to. In order to allow procedure to be as flexible as possible there is no formal requirement for challenge in advance. But, if you do intend to argue that a particular document is not what it appears to be or that a particular copy is not accurate, inform the other party of this as soon as possible.
If you wish to rely on documents which are in the possession of the other side or of a third party, the tribunal can Order that such material be made available to you. If you ask the Tribunal to make such an order you must identify clearly the documents or type of documents you wish to be disclosed. You will have to satisfy the Tribunal that the documents will have a bearing on some matter which is relevant to the case. It must be a matter which is important enough to justify such a formal order and it must be relevant to something identified in the written pleadings. The Tribunal is slow to order productions from third parties unless satisfied that they have a connection with the case and that the benefit of having the information would justify this procedure.
Evidential value of written material
Some documents are described in law as “probative”: that is, they speak for themselves. Most documents which are formally witnessed fall in that category. The Tribunal will usually accept other documents at face value. In other words, accept them as being what they appear to be without needing a witness to speak to them. The Tribunal will regard itself as free to study plans, letters, photographs etc. and draw reasonable inferences from them in light of the whole evidence in the case. This approach can save a good deal of time.
When preparing for a proof, you should identify the important points in dispute and try to find the strongest evidence you can. Deciding what evidence to lead and what reliance can be placed on written material can be difficult and the advice of a solicitor is advised in any case of complexity. The weight to be given to written evidence will always be a question of context and circumstances. A document which is spoken to by a witness explaining where it came from and what it is, will be likely to receive more weight than one which is left to “speak for itself”.
There is a difference between accepting a document as being what it seems to be, and accepting the evidence in it. The Tribunal will readily accept a document as being what it seems to be and yet be slow to accept what it says. An example may help make this important point:-
A document might appear to be a copy of a letter giving an account of what the writer saw, or heard, on a particular day. Such a production will readily be accepted as being the copy of a letter. It would, therefore, be accepted as showing that the person named as the writer had indeed written on the date shown. In other words, the document would be accepted as being what it seemed on the face of it to be. But the Tribunal would not necessarily accept that the account of events was true. That would depend on the weight of other evidence.
There may well be cases where documents are not all that they seem to be. Photocopying and computers allow easy creation of pieces of paper. If you have any reason to doubt a document you must feel free to challenge it.
Where a production is questioned, it will be for the person who wishes to rely on it to lead proper evidence to show what it is. In other words, if there is any dispute it will usually be up to the person who lodged the evidence to satisfy the Tribunal that it is reliable.
If a dispute over productions arises for the first time at the hearing itself, the Tribunal may have to allow an adjournment to ensure that no unfairness arises. There may be cases where it would be sensible to ask the other side in advance whether there will be any dispute that a document can be taken at face value. (See Disputed facts.) There is no point in the expense of bringing a witness just to set up a document if this can be avoided. Similarly a late challenge to a document may give rise to extra expense of adjournment and it should be obvious that any intention to dispute a copy or principal should be intimated to your opponent as soon as possible.
Although the tribunal will regard itself as entitled to look at all the written evidence when making a decision, there can be a risk of taking too much out of written evidence. Accordingly, if you want the Tribunal to take account of any specific production you should make sure it has been referred to at the hearing either by a witness or referred to expressly in the submissions.
Any evidence given at a hearing requires to be understood by the Tribunal and by the other side. It is often worth using visual aids to make this easier. We use the term “visual aids” to distinguish productions which are lodged solely to help the tribunal, from productions which are relied on as evidence supporting one side or the other. Of course, many productions serve may both purposes.
Obvious aids are maps, plans and photographs. Although the Tribunal will nearly always inspect the subjects after the hearing and will try, if convenient, to have a look at them beforehand, there is no doubt that a plan and a few well-chosen photographs can speed up the leading of evidence.
Think carefully how they will be used. A large map or other document might best be put up on a board at the hearing. This is something to discuss with the staff in advance.
If you want to use an overhead projector or a video you should discuss this. If the Tribunal is sitting out of Edinburgh you will normally have to provide appropriate equipment yourself. You would be advised to attend early to be able to check in advance that all equipment is working properly and that videos or tapes are of sufficiently good quality to be likely to be of assistance.
Our experience is that videos tend to slow up proceedings and are seldom of positive assistance as visual aids. The main problem is that they have to be replayed every time a witness is asked a question about them. Obviously a video relied on as direct evidence would have to be considered whatever the difficulties.
Evidence of witnesses
Although the Tribunal is often able to put a good deal of reliance on written evidence, and a site inspection, disputed issues are usually resolved by hearing the evidence of witnesses. Witnesses may be necessary to explain written material. Witnesses are usually expected to appear in person and give their evidence by way of answer to questions. Cross-examination allows their evidence to be tested properly in open court. Evidence which survives such testing can be given greatest weight.
Parties are entitled to tender the evidence of witnesses by way of affidavit. This is a written statement by the witness, made formally before a qualified person. The Tribunal is bound to take such evidence into account. When the evidence in question is of an uncontentious nature this may be a quick and efficient way of dealing with matters. On the other hand if evidence is given in this way it cannot be tested by cross-examination. If any other witness gives conflicting evidence before the Tribunal it is likely to receive greater weight.
Giving evidence by way of affidavit should not be confused with the common practice of having the witness’s evidence prepared in the form of a statement. When he or she is led as a witness the statement is merely confirmed as being his or her evidence. The other side then has an opportunity to cross-examination. This procedure not only saves time at the hearing but gives the party leading the evidence an opportunity to ensure that the witness has covered all the ground with less chance of accidental omission.
Arrangements for witnesses
Not later than 5 working days before the date fixed for the hearing each party is to give written intimation to every other party and to the Clerk to the Tribunal of a list containing the name, address and occupation (if known) of each person whom that party intends to call as a witness.
Usually witnesses are willing to attend to help the party calling them. However, the Tribunal can compel witnesses to attend. If, for any reason you wish the Tribunal to order any particular persons to attend as witnesses you should write to the clerk with the names and addresses and a brief statement explaining why a formal order is required and why you need the particular witness.
If you think that any of your witnesses may have difficulty in giving evidence or in attending the hearing venue, you should notify the clerk as soon as you become aware of this. That will make it possible to make practical arrangements to avoid difficulty for disabled witnesses. The Tribunal may ask to see a letter from a doctor to explain why such arrangements are necessary. Even where there is no strong medical justification it might be possible to make special arrangements to take the evidence of a witness on a day other than the date fixed for the hearing– but the difficulties of getting everyone together and the extra cost involved means that this is not encouraged.
It should be noted that although the Tribunal will consider taking evidence from an infirm witness at home, many private houses do not provide proper facilities for the taking of evidence. Keep in mind that there will be a need to accommodate one or two members of the Tribunal and the Tribunal Clerk. There will also be the other party and his or her solicitor. Other persons with an interest may be entitled to attend. They will want to make notes of the evidence. If a witness cannot travel to the appointed hearing, think whether you can suggest a suitable room in a local office, hall or hotel. This will assist the Clerk in considering appropriate arrangements.
If any parties or witnesses prefer to not use English, arrangements can be made to have an interpreter. You should contact the clerk in good time to discuss this.
You and your witnesses should attend at the start of the hearing unless it is reasonably clear that some of them will not be required until a later time. It is very difficult to predict how quickly things will progress and it may be expensive to have a delay waiting on a witness who might easily have been in attendance. On the other hand we do not want witnesses hanging around for no good reason. There may be scope for some flexibility. These matters should be discussed with the clerk in advance.
Before the hearing, parties or their solicitors should try to have some discussion as to what is agreed and what is really in dispute. In bigger cases a written agreement might be put before the tribunal to avoid any doubt. (A joint statement of this sort is often referred to as a “joint minute” or “joint minute of admissions”.) In some cases, where the facts are not really in dispute, it may be simpler for parties to approach things the other way round and tell the Tribunal which particular facts are not agreed and what questions the Tribunal is being asked to answer.
Even if there is no written agreement you must have a clear idea in your head at the start of the hearing what the real issues are. The Tribunal is very likely to ask about this at the opening stages. The members will want to see that parties have made an effort to identify things that are not disputed.
Where the hearing is to be a limited legal debate the Order will usually say explicitly that the party taking the legal point should submit a note of argument stating the legal propositions on which it is proposed to rely with reference to the principal authorities and statutory provisions to be founded on. Even if the Order makes no reference to this, parties should give careful thought to the possibility of providing the other side and/or the Tribunal with a note of their legal arguments if they are not clear in the pleadings. A good argument might persuade an opponent to withdraw before the hearing.
Litigation is not a game. A party who keeps a legal “bull point” till the end of the case may find the Tribunal asking questions in relation to expenses.
By “authorities” we mean any authoritative written material setting out legal rules relevant to the case or giving guidance about such legal rules. This usually means reports of previous decisions dealing with similar legal problems. Acts of Parliament and Statutory Regulations may be referred to as “authorities”. Sometimes text books are helpful. The Tribunal likes if possible to have a preliminary look at the relevant legal issues in advance. That is why they wish to have details of any statutes or case law which you might be intending to rely on. It is helpful if a list of any authorities that might be referred to during submissions, is supplied to the Tribunal five days before the Hearing. We would encourage making such lists available to the other parties.
Copies of any particularly significant Scottish cases are welcome for ease of working but there is no need for routine copying of reported cases. When the hearing takes place in Edinburgh, the Tribunal has easy access to Session Cases, Scots Law Times, standard text books, and its own unreported decisions. If any other authorities — including in particular any English or European law reports — are to be relied upon, adequate copies should be provided. It is also helpful to have copies when the hearing is out of Edinburgh. You should discuss with the clerk whether copies are needed.
Advance intimation of legal authorities is not a substitute for making submissions at the hearing. The Tribunal will not reach any final conclusion on legal issues until it has heard submissions.
It will rarely be necessary to make reference to authorities in title conditions cases. The tribunal will be familiar with the provisions of the Title Conditions (Scotland) Act 2003 under which such applications are brought and will have its own copies of the Act. In other types of case the tribunal can be expected to have its own copies of the legislation under which the application is brought and it is unnecessary to provide copies of such material.
Decisions under the 2003 Act nearly always turn on the specific facts and reference to previous cases is seldom of assistance to the tribunal. The main benefit of reported cases is that they give a general picture of how the tribunal approaches matters. This may help you decide whether to fight or settle your own dispute but unless a case is authority for a relevant principle of law it is unnecessary to refer to it in the proceedings. Authorities should be used for guidance as to the proper approach to be taken to the law. They are of little weight if they simply show what was done in other circumstances. This is because factual decisions usually often involve quite narrow weighing of factors and little differences may tip the balance one way or another.
We refer above to the need to try to identify disputed facts and to agree as much as possible. This can apply to legal matters. If some disputed part of the case is to be conceded or some potentially disputed area of law is to be agreed, it is only polite to let the other side know as soon as possible. The Tribunal also likes to be told to avoid waste of time in preparation.
Compromise and mediation (ADR)
Of course, agreement need not stop at particular parts of a case. There is no reason why you should not try to settle the whole dispute even up to the last minute. As you prepare for a hearing it may become clearer that there is scope for agreement or compromise. You should always try to identify as clearly as possible what it is that you really want to achieve from the litigation. For example, you may not like the idea of your neighbour adding a conservatory to his house. You may well think it would be obtrusive and spoil your view. Your naturally instinct would be to oppose any application for permission to do so. However, you might come to realise that the one thing you really wish to preserve is the privacy of part of your garden. Rather than simply oppose the whole project, it might be possible to persuade your neighbour to incorporate sufficient screening to secure your privacy. You might not be particularly pleased with the result but it is sometimes better to be sure of an important point rather than take a risk of losing completely.
That is not intended to be a typical example. Circumstances are extremely varied. But, only the parties can assess what is really important to them. They can be much more flexible about the resolution of disputes than the Tribunal can. We have chosen this as an example because it helps illustrate a point which often arises in land obligation cases. The scope for a negotiated settlement is wide. Even a personal arrangement which would not bind any new proprietor if the neighbour’s house was sold, might be enough for your practical purposes. A Tribunal could not impose such a personal agreement. It better to settle disputes by agreement where possible. This not only saves time and expense, it can also save a good deal of worry and anxiety for parties and their witnesses. It is obvious that if neighbours can reach a compromise this can allow them to live together more happily. In the long run, that might be just as important as the physical impact of a new building. It may well be possible to agree some arrangements which are beyond the scope of a court or tribunal.
Unfortunately, it is very common to find that once a dispute has started, parties can no longer have sensible discussions. Paradoxically this can be a particular difficulty with people who started as friends and then find themselves faced for the first time with a dispute over something important to them both. But in any context, if you are having difficulty in discussing matters, consideration should be given to using mediation or some other form of alternative dispute resolution (ADR). The value of mediation is that provides a way for sensible discussion of issues at a time when the parties themselves might have real difficulty in broaching the subject.
The Tribunal cannot recommend any particular mediation provider. Various bodies offer this service. Some can be found in the Yellow Pages. You may wish to consult the following websites. However, the inclusion of these sites does not mean that we have any view as to either the suitability or reliability of particular services offered.
- The Law Society of Scotland
- Core Mediation
- RICS Dispute Resolution Services
- Scottish Mediation Network
[Any providers of mediation service who wish to be added to this list should write to the clerk giving details of their organisation.]
Although the Tribunal does encourage all attempts to resolve disputes by agreement these should be attempted well before the hearing date. If parties decide at the last minute that it would be a good idea to try mediation or some form of negotiated settlement, this will not usually be regarded by the Tribunal as an adequate reason for discharging the diet. The whole tribunal system is provided by the taxpayer to help parties resolve disputes. A lot of resources are committed to every hearing. It cannot be left to parties to chop and change arrangements. However, if parties do manage to conclude a settlement even at the last minute, the Tribunal will welcome intimation of it.
Procedure at the Hearing
On the day of the hearing the Clerk will be available in good time to deal with questions about procedure before the Tribunal sits.
Procedure follows fairly standard court practice. We try to be as informal as possible but some formality is necessary to ensure that both sides are treated equally and know what to expect. At the beginning, the Tribunal will try to be sure it understands what is truly in issue. You should listen carefully to any preliminary questions from the Bench and make your position as clear as possible. Sometimes a question will show that the Tribunal has simply misunderstood the pleadings and an opportunity for comment allows such misunderstandings to be corrected right at the start.
Each side will have an opportunity of leading any evidence from witnesses. Each witness will first be questioned by the party who has asked him to attend. This stage is known as leading or taking “evidence in chief”. The other party will then have a chance to ask him questions. This is usually referred to as “cross-examination”. Tribunal members are also likely to ask questions. One point to note is that a person appearing on his own behalf will be asked to go into the witness box as a witness if he wishes to give evidence on issues of fact. The other side will then be able to ask him questions. After cross-examination there is a stage known as re-examination when you can, if necessary, try to get your witness to clarify or explain matters which have been raised in cross-examination.
It may well make sense to lodge a statement of your witness’s evidence and simply ask the witness if he or she agrees. This can save a good deal of time. However, for this to work fairly and for the Tribunal itself to have a proper grasp of all the evidence given by the witness, it is necessary for these statements to be made available to the Tribunal and other parties in sufficient time. There are no strict rules about this - although where the statement is of the nature of an expert report it should be lodged as a production. With other witnesses the problem is that the other side needs some time to digest material before cross examination. Usually the process of leading oral evidence gives sufficient time although even in that situation there may be occasions where the tribunal would allow a brief adjournment to allow consideration of cross examination. Where a written statement is adopted advance intimation should avoid the need for this. Common sense should be an adequate guide as to how much notice is required.
After witnesses have been heard, each side will be invited to make a closing submission. This is the stage to put forward the arguments to persuade the tribunal why it should find in your favour in light of the evidence and the law.
Usually the applicant goes first, being the person who has to establish the case. However, it is sometimes more convenient for the respondent to lead. This is really a matter for application of practical common sense. It may be that the material supporting the applicant’s side is not disputed and it is for the respondent to establish some defence. Where the applicant is not legally represented, it may sometimes be helpful for the solicitor on the other side to start. This may make it clearer to the applicant what the real issues are and may help show the Tribunal precisely what is really in dispute. The applicant can then focus matters appropriately.
It helps if parties can discuss in advance who is to go first. If there is any doubt the Clerk should be told as soon as possible. The Tribunal will decide the order if there is a dispute.
We welcome attempts to present non-contentious material in a simple and convenient way. This might involve using affidavits or by setting out material in an opening statement, possibly using a plan. A similar statement might be made at an later stage in the hearing if it seemed appropriate. For example in a case involving titles to land it might be sensible to start by using a witness to explain the geography with the help of maps or plans and then make a statement explaining clearly the effects of the various deeds. You could then lead witnesses dealing with disputed issues. There is no need to have a witness speak to probative deeds or non-contentious written material. The simplest way of explaining the titles might be by preparing a flow chart or a short written summary of their effect.
In theory, discussion of probative deeds might be left to the stage of closing submissions. But this is not always the best way of presenting the case. Members like to know in advance what the point is. They like to know why certain evidence is being led. They are always anxious to ensure that both sides have had a fair hearing. Late disclosure may weaken the effect of a good point.
The Tribunal will always wish to hear evidence if it is relevant, but it may refuse to hear evidence on matters where proper notice has not been given when it should have been. If there is a doubt about whether sufficient notice has been given or if there is some reason for lack of notice, the Tribunal may grant an adjournment to allow the other side time to think or time to lead further evidence. The Tribunal may make a special finding about liability for the expense arising from of lack of notice.
Asking questions of witnesses
It is beyond the scope of this Guidance to give instruction on how to present a case or how to ask questions. However, it may be helpful to remember that the purpose of the hearing is to make sure that all the facts that you want the Tribunal to know about are set out in the evidence available to the Tribunal. Although it is sometimes assumed that the Tribunal will makes its own enquiries to reach a proper result, that idea is misleading. The tribunal is not carrying out an investigation. It is making an assessment based on the evidence — including, if appropriate, evidence obtained at a site inspection.
When dealing with your own witnesses you should be aiming to let them give relevant evidence in their own words. You should guide them to what it is you want them to speak about but leave them to tell the tribunal about it in their own way. In short you should not put words in the mouth of your own witness; you should not ask leading questions. On the other hand, you need not worry about this when questioning an opposing witness. He or she can tell the Tribunal if he does not agree. So, when it comes to the stage of “cross-examining” the other side’s witnesses it is usually easier to start by thinking of putting propositions to the witness rather than asking questions. Using short propositions will allow good control of the presentation. Use of long hypothetical or argumentative questions achieves very little.
Remember that it is the witnesses answers which are “evidence”. Allegations or assertions made by way of question are not part of the evidence unless they are accepted by the witness.
If you are appearing on your own behalf you may want to have a friend or relative sitting beside you for moral support. A friend may also be able to provide administrative help. For example, it is not possible to take notes while giving evidence. If you wish to have notes of your own evidence — or of the questions put to you — you will have to arrange for a friend to be in attendance to take notes for you. A friend might also help with attendance of witnesses.
A friend present in support in this way would not be expected to give evidence or to address the Tribunal. So, do not use anyone who might possibly be a witness. (Of course, once a person has given evidence they can be asked to help you.)
If you wish someone who is not a lawyer to act on your behalf in actually presenting the case, you must tell the Tribunal staff in advance and have permission of the Tribunal. The Tribunal has a discretion to allow this and can be expected to agree if it seems sensible to do so. However, confusion can arise if the representative is also to act as a witness. The Tribunal will not always agree to this. You should also note that the Tribunal may be reluctant to agree to representation by someone who formerly had a professional status and has, for any reason, lost it. In any case, it will expect to hear some reason why the person proposed is more likely to assist the Tribunal by the manner of presentation than the party himself.
Note that the public are entitled to be present throughout the hearing. However, anyone who is to be a witness may be kept out of the hearing room until they give their evidence.
It is expected that technical or expert witnesses will work from written statements or reports. These should normally be lodged as productions. Our normal procedure is to treat the written statement as part of the evidence in chief without having it read out in full. The witness, after being put on oath, should be asked whether he adopts his statement and, of course, he can be asked to clarify, qualify or explain it as necessary. He is then available for cross-examination and re-examination in the usual way.
Forms of address
It is not necessary to worry about this. A polite witness will get a polite hearing whether he uses the correct formal words or not. However, when the President is sitting as part of the Tribunal he should be addressed as “M’Lord” or “Your Lordship”. Other Members of the Tribunal should be addressed as “Sir”. Addressing the whole tribunal you would usually just say “the tribunal”.
The Tribunal may inspect the subjects. This will usually be after the Hearing but a practical approach is taken to make best use of available time. We sometimes take advantage of the lunch break for this purpose. You should give consideration as to whether you want to attend the inspection, or have someone attend on your behalf. If one side attends then the Tribunal would prefer that other parties should also be represented. The Tribunal will often prefer to inspect unaccompanied if satisfied that it is not necessary to have anyone present to give access or any witness to identify things about which evidence has been given. The inspection is not the place to attempt to introduce new evidence.
If you know that the area to be inspected is particularly inaccessible, you should consider whether it will be necessary to have transport for the Tribunal. Any known hazards should be pointed out to the Tribunal in advance!
Two questions arise in relation to expenses: namely, who is to pay and how much is to be paid. The Tribunal is usually concerned only with the first question although it does have a power to order lump sum payments.
If you have incurred significant expense in presenting your case you may wish to ask the Tribunal to make an award of expenses against your opponent. Such requests should be made at the hearing. It may well be necessary to defer detailed submissions about expenses until after the decision is issued but the normal rule is that the successful party will be entitled to expenses and in straightforward cases it may be sufficient simply to make it clear at the hearing that you expect that rule to be applied. In more complicated cases the Tribunal may decide that questions of expenses should to be reserved. When the decision is issued, parties will be asked to submit any motions about expenses with written supporting submissions. There may be various reasons for deferring submissions on expenses. For example, there might a risk of “divided success” and a need for confusing alternative submissions if the matter had to be addressed before the outcome was known.
The usual rule is that “expenses follow success”. This is not intended as a punishment for losing. It is simply a recognition that litigation costs money and that if the losing party had not insisted on his or her claim or defence, the successful party would not have incurred these costs. Where the loser has made an offer to settle and that offer would have given the winner much the same result as the Tribunal’s decision it may be argued that the real cause of the litigation was the winner’s failure to act reasonably by taking the offer. There may be other examples of unreasonable conduct by the winner which would justify some modification of liability. But the rule that expenses follow success is an important principle and the Tribunal will not easily be persuaded that modification is appropriate.
There is a general rule that no award of expenses is to be made in rating cases and there are special rules about expenses in relation to compensation for compulsory purchase.
Once the tribunal has decided who is to be liable to pay expenses, any dispute about how much is to be paid will go to the auditor of the Sheriff Court or the Court of Session. The auditor will act as an independent assessor. He will fix a proper sum in accordance with guidelines established in published Tables of Fees. (You can appeal his decision to the Tribunal on limited grounds.) You will not usually recover every last item of expenditure you have incurred. For example, although the winning side will usually be able to claim the cost of employing solicitors the amount allowed is regulated by the Table of Fees. This may well be less than the rate you have agreed to pay your own solicitor. The winning side will not be able to recover the cost of employing counsel or an expert witness unless the tribunal has agreed that this is appropriate.
The Tribunal is unlikely to reach a decision at the hearing and, in any event is obliged by the formal Rules to issue a written decision. This may be within a period of about six weeks but could on occasion be longer. It depends on how busy the Tribunal is and the complexity of the particular case.
If you think the Tribunal has reached the wrong decision an appeal may lie to the Court of Session. In order to be successful on appeal you will have to show that the Tribunal has gone wrong in law. However, you will be given further details about appeals when you get the decision. You should seek the advice of a solicitor in relation to any possible appeal.