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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12530
Experience:  30 years as a practising solicitor.
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This question is for JGM Solicitor, I need legal opinion on

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This question is forCustomerSolicitor, I need legal opinion on the point what will happened to the business if I get it back as a result of court decision, whether it will be taken away by the Trustee or Trustee will only get any sum due as a result of this case. secondly I am going to attach all latest documents if you could please have a thorough look and tell us the main points to be focused on and which points we have better chance to be successful on.

There are no attached document. Please let me know when you have uploaded these. It is likely that I will be looking at this tomorrow evening.

Customer: replied 3 months ago.
all the documents are attached now

Where is the final Record, the list of witnesses for each side, the productions and the statements of the various witnesses?

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Customer: replied 3 months ago.
There no final record been prepared, only one witness to the verbal agreement of the lease was record by the court and no statement of any witness is recorded yet from any side, sending you productions but they are about 50 productions from our side, there is no productions lodged by other side other side have only 1 witness which is accountant and that is it
Customer: replied 3 months ago.
could you please start working on it, I don't have any issue in paying 401 quid but its not accepting payment at the moment, I will keep trying soon site is sorted the payment will be sent.
Customer: replied 3 months ago.
I have attached list of productions and all the productions which I feel could be relevant I have attached, at last the list of my witness. Still getting payment error soon I it is sorted it will go through I am continuously trying
Customer: replied 3 months ago.
Payment was gone through last night, i hope you are working on it. Thanks
Customer: replied 3 months ago.
could you also check if following para is relevant to any extent to our caseEven if an irritancy of lease had been incurred the ejection of pursuer from premises was without warrant and was therefore illegal (CF. cases such as Waugh against More Nisbett (1882) 19 SLR.427 and Brash against Munro & Hall (1903) 5F1102).
In the case of Waugh against More Nisbett (1882) 19 SLR.427 a tenant who became bankrupt was allowed by the court to remain in possession because the landlord had not served a formal notice on him. The court allowed the tenant to remain even though it also pronounced decree of declarator to the affect that " the landlord was entitled to put an end to the lease". In my case the landlord did not follow through to obtain decree of removal the pursuer should be allowed to remain in possession as a tenant

Why is there no Amended Record lodged? And no list of witnesses? Who are the witnesses for the pursuer? I am reviewing the productions. Are you acquainted with the court procedure at a proof? Apart from the above, which I will deal with later do you have any other specific questions?

Customer: replied 3 months ago.
Just a brief history of my case. initially the case was set up for case management conference where on that date sheriff decided to send this case directly for proof, due to some reason the defender managed to get proof date cancelled to a next date but before the next date of proof I was made bankrupt. and on proof defenders solicitor argued and requested to sheriff to do debate first on this case and lodged note of argument, in response I lodged minute of amendment and then other side gave answers to the minute of amendment and then I lodged closed record which is also called as amended record and that was lodged with your help sir.
Customer: replied 3 months ago.
I am not well aware of proof procedure, If you could guide me step by step. I also want to know about my statement, could I read a written statement or to give me statement it has to be a verbal one.
Customer: replied 3 months ago.
i have attached amended record as closed record in documents
Customer: replied 3 months ago.
list of all witnesses was attached as well yesterday
Customer: replied 3 months ago.
at the end of productions document i have attached you will find last page as list of witnesses for the pursuer

Thanks that helps. So the current record is the amended one that we did before. I will keep looking at the papers but the procedure is that the sheriff will swear in the shorthand writer and deal with any preliminary issues. Then the Pursuer and his witnesses give evidence. You will be first. You don’t have to read a statement but there will be no one there to ask you questions so you will have to tell your story in detail detailing ALL the averments on Record. Your evidence should cover everything you want to prove and the sheriff will doubtless ask questions from time to time. You will be cross examined by th defender’s solicitor so make sure you are well aware of what they are saying in their averments and have an answer to them. As I think I have said before I think they will have a difficulty explaining the manner of eviction which was illegal. You must also speak to your losses. Your other witnesses will be questioned by you and cross examined and re-examined as appropriate. Then the same procedure is gone through with the defence. When all the evidence is heard you will summarise your case and make any legal submissions and refer to any cases in support of your own case. The other side can do the same. At the end it is usual for the sheriff to take the case away to do a written judgment. That is called taking the case to avizandum. I will write further later.

Customer: replied 3 months ago.
Could you please provide me a summarisation statement if its posible and also could you please provide me with any law cases in support of my case as well.
Thanks

What are each of the witnesses expected to say?

Customer: replied 3 months ago.
Ghulam Abbass witness already taken in court and he confirmed he witnessed 25 years verbal lease was agreed with landlord which was nott cross questioned by the third defenders solicitir,
Faiza zafar is to confirm the stock and equipment was in the shop last night on 9th March when we closed the business.
Khurram Shahzad to confirm and give witness as he seen landlord and other three men changing locks
Jittin is not coming in place mr. Khurram will com from Shah and co to confim accountants stuff like loss of earning and profit ect.
Customer: replied 3 months ago.
Lastly mentioned Mr. KHURRAM is different than mr. Khurram Shahzad,
Miss Faiza zafar was part time employee at the time of eviction and also my neice

I have uploaded a document narrating in detail the conduct of a proof.

Customer: replied 3 months ago.
Thanks, ***** ***** be getting any case laws for this one

The cases you have would appear to deal with the point that they didn’t serve notice on you so your are technically still the tenant. There are no cases reported under section 78(9) of the 2016 Act, however even it they are right and there is a deemed assignation to the trustee, the trustee has given you his consent to proceed with the litigation and he has said in his letter he will review the position after the litigation. I don’t think there is much more that will help you that that.

Customer: replied 3 months ago.
Ok, is there anything else you could help me with, my mind has stopped working.....
Customer: replied 3 months ago.
Thanks that helps. So the current record is the amended one that we did before. I will keep looking at the papers but the procedure is that the sheriff will swear in the shorthand writer and deal with any preliminary issues.(how will he deal with prelimnary plea),
2nd question, in my initial speach, shouod i have to mention separate what is my 1st crave what is 2nd crave and so on, or i will have to just give all details verbally as much possible?

Yes unless there has been any more amendment to the pleadings the one that I tried to help you with will be the current one. Preliminary issues would be any late productions for example or any minor amendments such as spelling errors. That is different from dealing with the preliminary pleas. Those would be covered in the final speeches and obviously your motion at the start of your speech is to uphold the pursuerks Pleas in Law and to repel those of the Defender. You have to summarise the evidence as given by the witnesses and ask the sheriff to accept their evidence. Deal with the craves separately. Crucially, don’t forget to deal with your accountant’s evidence and to include in your submission the evidence concerning qualification of your claim. Finally, remember that the productions have to be referred to and spoken to by the relevant witnesses including yourself. If a production is not referred to in evidence the sheriff won’t look at it unless there is a prior Joint Minute of Admissions which I don’t think there is in this case so make sure you go through the productions in your and the other witnesses’ evidence as appropriate. Good luck. I suspect you might not get this case finished in one day so you can always review the current situation at the end of the day tomorrow. And do not rush through the evidence. You are entitled to take your time and prove each and every averment in the Record. Break down each sentence in the Record and make sure that each relevant witness, including you speaks to each individual averment and when you sum up at the end remind the sheriff which witness spoke to which averment. I hope that helps.

Customer: replied 3 months ago.
Thanks for your help, a very crucial question, is there any way if we could ask the court for a specific Sheriff to listen this case,
On previous diet of proof on 12 March, my case was 3rd in the list to be heard by a sheriff but after a delay of 45 minutes Sheriff eventually changed and we were called before Sheriff wood and he was kind of disrespective towards me and case was fixed for 14 May,
On 14th May again my case was to be heard by sheriff Mccann i think i am no spelling name right, the scretary told us the case to be heard in different courtby different sheriff, before the case had started other Solocitor Mr. Tony kept going to the Secretary and kind of having secret discussion with her, eventually about 12, court room 22 was opend and we sat in court room at last again Sheriff wood appeared to listen this case, i was shocked to see all this, there is some sort of consipiracy going on to bring sheriff wood into the picture, half of the was heard on the day, you were right case couldnot be completed in one day, next date of hearing is to be fixed,
In the meanwhile i want to know if we could get Sheriff wood to be excluded from the case, any other sheriff comes it seems my case is going right soon Sheriff wood comes i feel during the session its going against me

If Sheriff Wood has started the case, it will continue before him. You can’t change sheriffs once the case has started.

Customer: replied 3 months ago.
I covered all points at proof but now I have realised there are some information which I forgot to tell in my initial speech, is there any chance if I could ask the court to give me opportunity to include missed information at any time during next days hearing or any other way to include such information?

What information is it and can other witnesses cover it? Where are you in the case?

Customer: replied 3 months ago.
Done both witnesses and i have done my own statements, was crossed as well, only one my accounts one left then other sides witnesses, i think i could get some onswer from defender while crossing, could i ask my witnesses to come again.
One last thing, in my own statement i done well on eviction and terms of lease part but didnot touch to damages but when solicitor came for questions he questioned only about damages he didnot touch even to eviction and lease part at all

Dealing with the second issue first, he must be dropping that part unless he has a legal point to make. If he hasn’t raised any of that in cross examination he can’t raise this with his own witnesses and if he does you can object. As regards ***** ***** you can ask the court to allow additional evidence by recalling you or your witnesses and the sheriff is able to allow that at his discretion. There is no prejudice to the other side that I can see. Once your case is closed, however, it is much more difficult so ask at the start of the continued proof.