The hearing is when each side presents its evidence in open court and can question or challenge the other side’s evidence. It is also the stage where the parties have a chance to advance arguments in support of their own positions or attacking their opponent’s case.
Although parties are usually entitled to have their say on the substantive issues by way of a hearing in open court, some cases might not really require this procedure. For example, in some types of case much will depend upon the view the Members take following a site visit. So, it often makes sense for the parties to agree to make submissions in writing and leave the Tribunal to decide after such visit.
Another example might be a dispute over the precise meaning or effect of a provision in an Act of Parliament or in a contract or title deed. The parties might agree simply to submit written notes of argument and leave it to the Tribunal to decide.
It is important to recognise that the formal application and answers are not expected to set out all the detail of the parties’ arguments. If it is agreed that the case should be dealt with on the basis of written submissions, the Tribunal will then give each side a chance to put in any written argument. That will provide an opportunity to refer to any legal text books, cases or other material which are being relied on to support any particular submission.
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. A copy of this will be sent to you.
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. 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. Normally the losing party will be found liable to pay the expenses of 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.