Woolf at the door for Latin lovers as legal jargon is abolished
In George Orwell's 1984, the Ministry of Truth sought to make the English language less complex. The Newspeak dictionary rejoiced in a vocabulary which became shorter and less elegant every year. Lord Woolf's new Civil Procedure Rules (cpr), introduced in all civil courts on 26 April, may achieve something similar. He wants to make court procedures more accessible to all users, particularly the client. He has swept away old, established practices and replaced them with entirely new rules to be implemented by a new breed of hands-on judges.
One of his themes is the introduction of more modern terminology and the abolition of archaic legal jargon and Latin maxims. So in the brave, new, post-lupine world we can say goodbye to some familiar nomenclature. Pleadings will now be known as 'statements of case', summonses and writs are to be called 'claim forms' and the plaintiff is to be replaced with the name used in arbitration proceedings, 'claimant'. (Confusingly, however, the arbitration term 'respondent' is not to be used in place of 'defendant'.)
This is all very well, but giving established concepts new names does not necessarily make them easier to comprehend. For example, legal procedure allows for third-party claims, by which a defendant, a main contractor perhaps, can pass on the employer's claim to a sub-contractor (or third party) if it is the sub-contractor who has really caused the problem. Lord Woolf, believing that most people do not understand third-party proceedings, has lumped them together with counterclaims in Part 20 of his new CPR. From now on they will be known as 'Part 20 Claims' - is the client any the wiser?
Some may see axing the Latin as a step that is long overdue. This ignores the fact that almost every sphere of human endeavour has its jargon: sometimes elitist, sometimes plain boring, jargon is no more than a shorthand used to convey concepts idiosyncratic to the particular field of practice. In the City therefore, 'a Leeson' is £900 million, for obvious reasons. Take away the label and you still have the concept - you just have to call it something else.
So what will we lawyers use instead of our handy Latin tags? Some lend themselves to ready translation; others less so. 'De minimus', for example, is itself short for 'de minimus non curat lex', meaning that the court does not concern itself with trifles and is pleaded (oops) in defence to a claim which is so trivial it is not worth the candle. Instead of 'prima facie', we should perhaps refer to a claim which, at first blush, will not trip over the evidential threshold and fall flat on its face.
In the past I have invoked 'res inter alios acta' (literally 'a thing done between others has no bearing on these parties') in response to allegations that damages for an admitted wrong should be reduced because the plaintiff (sorry, claimant) can recoup the loss from another source, usually insurers. Should I now say 'mind your own business'? 'Mutatis Mutandis' is another goody, usually used in standard forms of sub-contracts to incorporate the terms and conditions of the main contract 'with the necessary changes'.
'Ex turpi causa non oritur actio' is used to suggest that a contract between builder and client is unenforceable because it illegally omits payment of vat. Literally it means 'no right of action arises from disgraceful consideration' but perhaps we should adopt the more colourful translation 'a dirty dog gets no dinner here'. This goes to show that, far from heralding a new dawn of user-friendly legal-speak, the Woolf reforms might be better described in Orwellian terms as 'doubleplusungood'.