"Ignorantia Legis Non Excusat"
One of the main reasons why lawyers have long been revered as members of the 'professions' is their licence to confuse and confound the rest of humanity. This is a trait shared amongst their brethren across the globe and is largely founded on their enormous capacity to use legal-ease. The legal cognoscenti (there I go - it's catching) use this technique in order to make even the simplest process appear beyond the reach of geniuses let alone mere mortals. Their method is to combine long words that mean little, with Latin that means even less so that the rest of us are so impressed or dazed that we don't notice the amount on the bill!
A bit of the past
Question: So how long have the blighters been getting away with confusing us then?
Answer: Since the second Neanderthal man asked the first Neanderthal man if he could sue a sabre toothed tiger for anti-social behaviour!
As the language of one of the oldest professions, 'legal-ease' is based on long standing tradition and if you consider that, up until the 17th Century the language of the law was 'Lawfrench', a mixture of French, Latin and English, it is hardly surprising that it is confusing.
Another factor is that much of the law has developed organically as common law. This sort of law, which is often based on precedent (either customary or case law), started its life in the 12th century and is based on accepted customs or previous similar cases that become national law. In some cases, a local custom can be so unique to its geography that it has no relevance at national level, but still remains part of common law.
The second type of law in England is Statutory Law, which is often prescribed by Parliament. This includes laws that have been codified and have become imposed locally, regionally or nationally and are not necessarily based on local custom. However, some Statute Law can be based on common law where the basic Statute needs updating based on actual developments.
So that's the serious answer - tradition and history - but why is it all so confusing?
In truth, the legal systems still thinks it lives in the 17th century and if you say any different you'll probably get a mouthful of "aforementioneds", "my learned colleagues" and "Non est factums". Although I appear to be "playfully mocking" the system, the serious point is that the law is based on ancient traditions and although evolution is taking place, it will not happen overnight.
Unlike language in other parts of society, which seems to change on a daily basis, legal language will take longer to change. Although the actual use of Latin in daily legal life is now frowned upon in legal circles, it still makes the odd appearance amongst the musings of the legal profession.
We hope that the glossary (attached below) that justify the musings (found above) will go some way in helping solve some of the linguistic mysteries that housing officers and managers end up facing on a regular basis. We hope it is of some use.
Abridgement Order
Order that reduces the time for service of a Claim, thereby expediting proceedings in serious/urgent matters.
Adjournment
Temporary suspension of the Hearing of a case by the Court.
Advocate
Barrister or Solicitor representing party at Court.
Affidavit
Written statement of evidence confirmed on Oath.
Allocation questionnaire
Issued by Court to all parties after the service of Defence and to be completed and returned to Court with details of evidence to be used and arrangements for Trial.
Alternative dispute resolution
Alternative method to resolve dispute e.g. Arbitration, mediation.
Anti-social behaviour injunction
Court Order restricting/restraining behaviour, ordering acts to be done. Can also exclude a person from premises or a specified area.
Anti-social behaviour Order
Court Order restricting/restraining behaviour and setting prohibitions. This can be used against persons aged 10 and over.
Appeal
Application to a higher Court to review a lower Court's decision.
Appellant
A person/body who Appeals.
Applicant
A person/body who issues an application at Court.
Application
The act of applying to Court.
Assisted person
A party to proceedings who has been granted legal aid.
Assured shorthold tenancy
Registered Social Landlord's 12 month 'starter' tenancy.
Bar
The collective term for barristers.
Barrister
A member of the Bar and an Advocate with rights to appear in all Courts.
Brief
Written instructions to a Barrister for a hearing.
CPR
The Civil Procedure Rules governing County Court litigation.
Case Management Conference
Usually the first hearing in a multi track or fast track case to review the case and move it forward.
Case number
Unique case reference number by which case is known by the Court.
Chambers Hearing
Hearing before Judge in a private room or in Court with the public excluded.
Common law injunction
Used for breach of contract e.g. Tenancy/licence agreement other than ASB - to order a person to refrain from doing something or ordering them to do something.
Common law
Law established by precedent from individual judicial decisions.
Circuit Judge
A judge that sits in the County Court and/or Crown Court.
Claim
Proceedings issued in County or High Court.
Claim form
The form, which is completed to commence proceedings.
Claimant
Person/body issuing a claim.
Closure notice
Issued by Police on premises utilised for the use/dealing of illegal drug substances and/or where serious ASB perpetrated.
Committal Order
A Court Order sending someone to prison.
Consolidation
Formally joining together claims that had originally been issued separately - e.g. Possession with Injunction.
Contempt of Court
Disobedience or wilful disregard to the judicial process.
Counsel
A Barrister.
Counterclaim
Claim by a Defendant against a Claimant in an action.
County Court
Court that deals with civil claims and monetary claims up to £15,000, with additional powers in respect of Bankruptcy, Family matters etc.
Crown Prosecution Service
The public body responsible for bringing cases to court and representing the crown and bringing proceedings in criminal cases on behalf of the police.
Damages
In disrepair cases, the money obtained as the result of a claim to compensate for inconvenience and/or distress suffered because of the condition of the property (see Special Damages).
Debar
Preventing someone from defending a Claim for Possession.
Deed of surrender
Legally binding document by which a tenant can voluntarily surrender their tenancy.
Default judgement
Obtained by Claimant as result of Defendants failure to comply with the requirements of a claim.
Defendant
The person being sued or the person standing trial or for sentence.
Defect / Disrepair
A fault or problem with a property, for which the landlord is responsible.
Demoted tenancy
Either a stand-alone remedy or in the alternative to Possession - demoting assured or secure tenancy to shorthold tenancy for a 12 month period.
Directions order
Timetable for the exchange of Documents in the lead up to a fully contested Trial in either fast track or multi track matters.
Disability
Inability to handle own affairs or under age of 18 requiring representation by litigation friend.
Disclosure
Mutual exchange of documentary evidence held by each party to the case (see discovery).
Discontinuance
Notice by a Court, on the instructions of the Claimant, that case not being proceeded with.
Discovery
Mutual exchange of documentary evidence held by each party to the case (see disclosure).
Dismissal
Order or decision that the claim ceases.
Dispense
Waive the requirement for a document, such as a Notice Seeking Possession, for purpose of expediting Claim in urgent cases.
District Judge
Judge who hears applications within proceedings and some final Hearings up to a certain financial limit.
Enforcement
Method of pursuing a case after a judgement in favour of a party to the case.
Entry of judgement
Decision of court in favour of one or other of the parties.
Exclusion order
Pursuant to ASBI - prohibiting a person's attendance at a premises or specified area.
Exhibit
Item/document referred to in an Affidavit or used as evidence during a trial or hearing.
Expert witness
Person employed to give evidence on subject they are qualified in or have expertise.
Fast track
Defended Cases worth £5,000-£15,000 are allocated to this track.
Final Injunction Order
Full Order, as opposed to interim Order - made at uncontested return Hearing, or at the end of a contested Trial.
Finn application
Application to vary terms of a suspended Order, to revoke the suspension and allow a Bailiff to execute the Warrant for Possession. Allows Claimant to introduce Possession Grounds into proceedings other than (in addition to?) those for which the Claim was originally brought.
First possession hearing
Following the issue of Claim, this is the first Hearing to consider the matter and either have Order made if uncontested, or set Case Management Directions if it is.
First return hearing
The Hearing that takes place after a without-notice injunction hearing at which the defendant may attend.
Forfeiture
In the case of rent arrears, bringing a lease to an end without recourse to the courts.
Grounds for Possession
The statutory reasons for bringing claim for Possession.
Hearsay evidence
Evidence of person who is either unwilling or unable to attend Court or who wishes to remain anonymous.
Hearsay notice
Document attached to witness statement that allows evidence contained therein to be admissible in Court.
High Court
Civil Court higher than County Court dealing with Civil, Family & Chancery (property including fraud and bankruptcy) matters.
Incapacity
A person under a disability either being under 18 years of age or unable to handle their own affairs e.g. as a result of mental incapacity.
Infant
Person under the age of 18 years (a minor) requiring a litigation friend for purposes of representation.
Injunction
Court Order to restrain or direct another person/ body where non-compliance may be punishable by imprisonment.
Inspection of documents
Arrangements for mutual exchange of documents following service of disclosure lists.
Interlocutory
Interim, pending a full order/decision.
Interim Injunction order
Order obtained at a without-notice application Hearing, and remaining in force until a return Hearing or for the duration of Directions in a contested matter, until a full order is made.
Introductory tenancy
Local Authority's 12 month starter tenancy.
Issue
Starting legal proceedings in pursuit of a claim.
Inter alia
Amongst other things.
Joint Instruction
Parties agreeing to instruct an expert within a claim/dispute, e.g. Consultant Psychologist, Builder, etc.
Judgement
A Court's final decision.
Jurisdiction
The area and matters over which Court has legal Authority.
Leave
The Court's Permission.
Legal Aid
Public funding - Payment of a party's legal fees from a public fund administered by the Legal Services Commission.
Licence
Type of agreement or contract to occupy premises, between Landlord and Tenant, other than a Tenancy.
Limitation period
The time limit after which a legal action cannot be started. In most housing cases it is six years. In personal in jury cases it is three years.
Listing questionnaire
Form to be completed in fast and multi track cases to ensure all issues are (?) resolved and the case ready for trial.
Litigation
Legal proceedings.
Litigation friend
A person (or Official Solicitor) representing a minor or person with a mental disability involved in legal proceedings.
Minor
Person below age of 18 who has to be represented in proceedings by a litigation friend.
Multi track
Claims worth more than £15,000 allocated to this Court track.
Notice
In disrepair cases, notification of a disrepair, either directly by the tenant in writing or orally to the landlord or his employee, or indirectly, by inspection of the property by the landlord or his employee.
Notice of issue
Court notice showing case number, fees paid and confirms service.
Oath
A declaration that a document or a statement is true.
Official Solicitor
Solicitor or Barrister in the Lord Chancellor's dept whose duties include representing in legal proceedings people incapable of looking after their own affairs e.g. minors and people under a mental incapacity.
Order
Direction by the Court.
Originating application
Method of commencing proceedings under authority of an Act of Parliament e.g. Landlord & Tenant Act.
Out of Pocket Expenses
Expenses incurred in a small claims track as a result of the claim, such as loss of earnings and expert’s fees.
Particulars
Details relevant to a claim.
Party
A participant in Court action or proceedings.
Patient
A person deemed incapable of handling own affairs by reason of mental incapacity under the Jurisdiction of the Court of Protection.
Personal service
Personal delivery of a claim, summons or notice.
Pleading
Documents setting out claim or defence of a party in proceedings.
Possession proceedings
Claim brought by a Landlord against a tenant for the purpose of regaining Possession of premises and having the tenant evicted.
Postponed possession Order
Order for Possession, postponed on terms with which the Defendant must comply to avoid application for Warrant for Possession.
Power of Arrest
Order attached to some injunctions allowing the Police to arrest the person who has broken the terms of the injunction.
Pre-trial checklist
Details allowing a matter to be allocated to a Track and listed for Trial. The same as Listing Questionnaire and sometimes referred by the Court.
Prima facie
At first sight/on first viewing of (papers).
Process server
Those instructed to serve papers.
Professional witness
Those instructed to organise CCTV, general surveillance, etc, in order to collate evidence.
Queens Counsel
Barrister of at least 10 years standing appointed as QC undertaking more important and complex work - also known as a "silk".
Reserved Right to Buy
The right of a current or former local authority tenant to purchase their council home after it has been transferred to an RSL.
Right of audience
Entitlement to appear before a Court in a legal capacity and to conduct proceedings on behalf of a party to the proceedings.
Right to buy
The right of a Local Authority Tenant with Secure Tenancy, who has right to purchase their Council home.
Secure tenancy
Tenancy held by a Local Authority tenant or an RSL tenant prior to 15th January 1989.
Security of Tenure
Tenancy that cannot be ended by a landlord without a court order.
Service
Delivery by post or personally of a claim or other Court documents.
Set aside
The Court revokes an Order made previously.
Set-off
Where one party agrees with the other’s claim or part of it, but sets up one which counterbalances it.
Sheffield v Hopkins
Authority which allows a Claimant to introduce other Possession Grounds into proceedings, other than for which the claim was originally brought on a Defendant applying to suspend/stay a Warrant.
Silk
A Queens Counsel.
Single Joint Expert
An expert who is instructed by both the tenant and the landlord, either with joint or separate instructions.
Small claims track
Claims worth less than £5000 (and Personal injury and Housing disrepair claims with less than £1000) allocated to this track.
Special Damages
Compensation for loss or damage to specific items e.g. clothes, carpets, curtains, wallpaper, bedding or extra electricity costs.
Squatter
A person occupying land or property without the owners consent.
Summary assessment of costs
Where the question of costs is dealt with at the time of the hearing.
Statement of costs
Details/breakdown of costs incurred by a Party, for which they seek a Costs Order.
Stay of execution
An order following which judgement cannot be enforced without leave of the Court.
Submissions
During a Trial or Hearing, the reasons or arguments given by advocate in pleading the case or an Order.
Summary judgement
Judgement obtained by a Claimant where there is no defence or defence contains no valid grounds.
Summons
Order to appear or to produce evidence to a Court.
Tenant holding over
Type of Possession Proceedings brought against Tenant remaining in occupation of premises after tenancy ended.
Third Party
Someone other than the landlord or the tenant.
Tolerated trespasser
Tenant remaining in occupation of premises after tenancy brought to an end.
Track
Pre-defined procedures that dictate how a case will go through the courts system (e.g. fast track, multi-track, small claims track).
Trespass Proceedings
Action taken against a person in occupation of premises without legal right or permission from person with ownership/Landlord.
Undertaking
As opposed to a Court Order, this is a promise made to the Court, as to future behaviour, with no admissions or findings made as to past behaviour. Breach of an Undertaking is the same as breach of an Injunction, Committal action.
Unless Order
e.g. Court Order term that - 'unless' a specified document is filed/served by a specified date, a Defendant is debarred from defending a claim.
Warrant of committal
Method of enforcing a Court Order whereby the penalty for failing to comply with its terms is imprisonment.
Warrant of possession
Method of enforcing a judgement for possession of a property authorising a Bailiff to evict people and secure against re-entry.
Without Notice Hearing
One which takes place without the defendant being notified (formerly known as ex parte).
Witness Statement
Document setting out evidence to support the claim/application before the Court, with a statement of truth signed and dated by document's author.
