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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.
Where is the final Record, the list of witnesses for each side, the productions and the statements of the various witnesses?
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?
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.
What are each of the witnesses expected to say?
I have uploaded a document narrating in detail the conduct of a proof.
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.
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.
If Sheriff Wood has started the case, it will continue before him. You can’t change sheriffs once the case has started.
What information is it and can other witnesses cover it? Where are you in the case?
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.