Glossary - ICLR

A

Acronyms and initialisms in legal writing

An acronym is a word or name composed of the first letters of each word of a title or description. For example, NATO is an acronym for North Atlantic Treaty Organisation. An initialism is an abbreviated name or description composed of the first letters of the full name or description, pronounced as a set of... Continue reading

Actio personalis moritur cum persona

Latin maxim meaning that a personal right of action dies with the person.

Ademption

The failure of a gift under a will by reason of the fact that it does not, or has ceased to, exist. Such a gift is adeemed, and the intended beneficiary may get nothing instead.

Affidavit

A document setting out evidence which the witness providing it has sworn to be true in the presence of someone legally qualified to administer an oath.

Appellant

The person who brings an appeal in a civil or criminal case. An appellant’s notice is the document in which the appellant sets out why (the grounds on which) the decision of a lower court should be quashed (cancelled), reversed or varied (changed to a different decision) by the higher court.

Arbitration

A system of alternative dispute resolution (ie resolution of a dispute otherwise than by a court) in which the disputing parties refer the matter to an arbitrator or a tribunal of arbitrators (usually 3) selected by a process determined in the arbitration agreement. An agreement to arbitrate (or arbitration clause) is often included in a... Continue reading

Assessment of costs

Once a costs order has been made, the court will need to decide how much should be paid to the successful (receiving) party by the other (paying) party. There are four elements to this: (1) Summary assessment – for hearings of a day or less, a judge will generally consider a summary of costs prepared... Continue reading

ATE, BTE insurance

ATE (After the Event) insurance is a form of litigation insurance that indemnifies the insured against the financial risk of losing a claim in proposed legal proceedings. The amount of the premium may be dependent on or proportional to the amount successfully recovered in the proceedings. Although it may enable litigants who could not otherwise... Continue reading

Attorney General

The Attorney General (AG) is the government’s chief law officer and legal adviser. The Attorney General’s Office is a government legal department, led by the AG and the Solicitor General (the Law Officers), which provides legal advice to the government and oversees four other departments: the Crown Prosecution Service (CPS) the Serious Fraud Office (SFO)... Continue reading

AustLII

The Australasian Legal Information Institute or AustLII is a free legal research database covering case law, legislation and other materials from Australia and New Zealand. It is part of the Free Access to Law Movement.

Autrefois acquit, autrefois convict

“Autrefois acquit” roughly translates as “previously acquitted”, and “autrefois convict” as “previously convicted”. These expressions, in medieval law French, are used to describe pleas by a defendant in criminal proceedings asking the court to halt the proceedings on the ground that they have already been tried and acquitted (or convicted) in respect of the same... Continue reading

B

BAILLI

The British and Irish Legal Information Institute or BAILII is a free legal information research database covering case law, legislation and other materials from the jurisdictions of the United Kingdom, England & Wales, Scotland, Northern Ireland, plus Ireland, the Channel Islands, the European Court of Justice, the European Court of Human Rights. Incorporated and established... Continue reading

Bona vacantia

Latin for “vacant goods”, used to refer to ownerless property, which by law passes to the Crown. It mainly refers to unclaimed estates (ie the property of deceased persons, where it is not clear to whom it should pass, if anyone) or the assets of dissolved companies. The Bona Vacantia Division (BVD) is a subdivision... Continue reading

Burden and standard of proof

The standard of proof is the degree to which a party must prove its case to succeed. The burden of proof, sometimes known as the “onus”, is the requirement to satisfy that standard. In criminal cases, the burden of proof is on the prosecution, and the standard required of them is that they prove the... Continue reading

C

Cafcass

The Children and Family Court Advisory and Support Service (Cafcass) represents children in family court cases in England. Cafcass was formed on 1st April 2001 as part of the Government’s commitment to supporting families and children. It brought together the services previously provided by the Family Court Welfare Service, the Guardian ad Litem Services and the Children’s divisions... Continue reading

CanLII

The Canadian Legal Information Institute or CanLII is a free legal information research database covering case law from all Canadian courts, including the Supreme Court of Canada, federal courts, and the courts in all Canada’s provinces and territories, plus federal legislation and consolidated statutes and regulations of every jurisdiction in Canada. A companion website, CanLII Connects,... Continue reading

Catchwords

Also known as Keywords. Descriptive words or phrases used to categorise the subject matter of a case for indexing purposes. Usually presented at the top of the report in the form of a main, second and third heading, which may be followed by additional words or phrases, separated by dashes, describing the critical issues in... Continue reading

Caveat emptor

Latin maxim, meaning “let the buyer beware”. It refers to the idea that the onus is on the purchaser to check the quality of the goods or property which are the subject of a sale transaction, not on the seller to volunteer information. On its own, the word “caveat” refers to a warning or exception.

Certiorari

Latin for “to be made more certain”. A writ of certiorari is a prerogative remedy or order issued by the court in judicial review proceedings, bringing up and quashing the decision of a lower court or tribunal, by reason of an error of law “on the face of the record” (ie readily apparent from the... Continue reading

Cestui que trust

Another word for a beneficiary of a trust: the person entitled to an equitable, as opposed to a legal, ownership of trust assets. The full law French description is cestui a que use le feoffment fuit fait. Alternative short forms are cestui que use or cestui que vie.

CFA

Conditional Fee Agreement – also known as a “no win, no fee” agreement: a form of litigation funding whereby the fees charged by the claimant’s lawyers are only payable if the action succeeds. In some circumstances, these may be recoverable as costs from the losing party. Most solicitors entering into a CFA will also charge... Continue reading

Child arrangements order

Court order that sets out who should have responsibility for care of a child, who they should live with and how often they will see or have contact with each parent (see section 8 of the Children Act 1989, as amended by the Children and Families Act 2014). Such an order is generally made where... Continue reading

Client account

Every solicitor or solicitor’s firm (but not barristers) has two accounts: a client account and an office account. The office account is the firm’s own money to spend as it wants: eg payment of wages and other expenses (rent, electricity etc) and to the solicitors themselves. The client account represents a lot of relatively much... Continue reading

Collusion

Collusion, in the context of litigation (particularly divorce litigation) is “an improper act done, or an improper refraining from doing an act, [with another party] for a dishonest purpose.” See Scott v Scott [1913] P 52. Such a purpose may include the obtaining of a divorce based on a false presentation of the facts, eg to... Continue reading

Command paper

An official government paper presented to Parliament, “by command of His/Her Majesty”, and given an official reference number. The reference number follows a prefix (Cd, Cmnd, Cm etc) which has changed over the years since it was introduced in 1870. 1 to 4222 (1833 – 18690) C 1 to 9550 (1870 – 1899) Cd 1... Continue reading

Commissioner for Oaths

A qualified lawyer who can administer an oath, take an affidavit or attest a signature where this is required by the court or for a specific type of document. Administering oaths is a reserved legal activity, by virtue of Part 3 of the Legal Services Act 2007 (LSA), which means that only a qualified practising... Continue reading

Common law marriage

The mistaken belief that cohabiting couples enjoy legal rights similar to those who are formally married or in a civil partnership. They don’t. There is no such thing as a “common law” wife or husband or marriage, no matter how long a couple may “live together as man and wife” or however one wants to... Continue reading

CommonLII

The Commonwealth Legal Information Institute or CommonLII is a free legal research database covering case law, legislation and other materials from all Commonwealth countries. It includes content from a number of smaller jurisdictions that do not have their own separate LIIs and are not covered by WorldLII. CommonLII also holds a database of PDFs from the... Continue reading

Conditional fee

A conditional fee (sometimes called a contingent fee) arrangement is a fee for legal services in pursuing a claim which is only payable if and when the claim is successful and costs recovered. It is one of a number of ways in which an impecunious claimant, who cannot otherwise afford to pursue their case, can... Continue reading

Conflicts of laws

Where there is a dispute over whether a case should be litigated in one jurisdiction or another, there is said to be a conflict of laws.

Consolidated Index

A printed index and digest of case names, subject matter, and judicial considerations of other cases and legislation, published by ICLR in cumulative volumes of up to five or ten years coverage. See Products for purchasing details.

Contempt of court

Conduct that undermines or interferes with the administration of justice or which deliberately insults or breaches an order of a court. It is punishable, on “committal”, by imprisonment or a fine. The person who commits contempt is known as a “contemnor”. Examples of contempt of court include: Disobeying or ignoring a court order Taking photos... Continue reading

Contra proferentem

Latin maxim (“against who proffers”) expressing the rule that an ambiguous term in a contract should be construed in favour of the party against whom it is relied upon or asserted, rather than in favour of the person asserting or relying on it.

Copyright

Copyright is an intellectual property right relating to a creative work, which generally belongs to the creator (author) of that work, but which can be assigned to another person (the holder of the copyright). The types of creative work to which copyright can attach (or in which it can ‘subsist’) are defined in section 1... Continue reading

Costs

An award of costs is a sum of money ordered by the court to be paid to one of the parties to litigation by another in respect of the expenses of managing the litigation. The costs may be assessed by the court or agreed between the parties. They cover lawyers’ fees and other expenses such... Continue reading

Criminal Injuries Compensation Scheme

The Criminal Injuries Compensation Scheme is a government funded scheme designed to compensate blameless victims of violent crime in Great Britain. It was established under the Criminal Injuries Compensation Act 1995 and is administered by the Criminal Injuries Compensation Authority (CICA), who consider applications from victims or their families or dependants, and assess if and how... Continue reading

Crown

Alternative name for the prosecution in criminal cases brought in the name of the Queen or King, under the title Regina or Rex. Thus a case cited as R v Brown may be spoken about orally as “The Crown against Brown”. Most public criminal prosecutions in England and Wales are brought by the Crown Prosecution... Continue reading

Crown Court

The Crown Court is a senior court which holds trials of more serious criminal offences; deals with sentencing in cases where the defendant has either pleaded guilty already, or been convicted and referred for sentencing by a magistrate’s court because of the relative seriousness of the offence; hears appeals from magistrates’ courts. Most trials in... Continue reading

Crown Prosecution Service (CPS)

Independent public body headed by the Director of Public Prosecutions (DPP) and charged with the management of criminal prosecutions in England and Wales. The CPS decides which cases that have been investigated by the police and other investigative organisations should be prosecuted. It determines the appropriate charges in more serious or complex cases, and advises... Continue reading

Cur. adv. vult

Cur adv vult or CAV are abbreviations for Curia advisari vult, which is Latin for “the court wished to be advised”. It is used in a law report to indicate that the court’s judgment was reserved, as opposed to being given extempore.

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De bene esse

Latin phrase, roughly translating as “for what it’s worth”. Evidence admitted “de bene esse” is done so on a provisional basis, without determining its admissibility. This is usually done either to ensure relevant evidence is not lost or overlooked, or for the purpose of assessing its relevance, value or admissibility in the first place. By... Continue reading

De minimis non curat lex

Often shortened to “de minimis”, this Latin phrase means that the law does not take account of trifling matters, or matters of little or no value or importance. In other words, there is a threshold beneath which the law, in all its intellectual might and procedural majesty, does not deign to concern itself. It is... Continue reading

Defence

The process of defending (resisting or opposing) a criminal or civil case, or the argument or document put forward in response to such a case. A person who defends a case is known as the defendant, but their legal team is collectively known as “the defence”. In a criminal case, a defence is an argument... Continue reading

Defendant

The person against whom a criminal prosecution or a civil claim in law is brought. In Scotland the word used is defender. In criminal cases the person may also be described as the accused, or in older reports, the prisoner.

Design rights and registered designs

A design is defined by section 213 of the Copyright, Designs and Patents Act 1988 as “the design of the shape or configuration (whether internal or external) of the whole or part of an article”. A design right is a property right relating to an original design, which comes into existence only once it has... Continue reading

Director of Public Prosecutions (DPP)

The Director of Public Prosecutions (DPP) is the head of the Crown Prosecution Service (CPS) and the third most senior public prosecutor after the Attorney General (AG) and the Solicitor General (SG).

Disclosure

This is a loaded word in the law, and needs to be treated with care. In litigation, it refers to the process whereby each party tells the other in a list what documents or other relevant information they have (a statement that the “document exists or has existed”). At the same time, the party says... Continue reading

Discretion

Discretion, in the context of legal decision-making, is the freedom to make a decision within a range of options that may or may not be subject to defined limits. The limits of a discretionary power are usually set by the legislation or other rule conferring the power to exercise it. Where no such limit has... Continue reading

Doli incapax

This Latin phrase refers to the presumption in law that a child is incapable of forming the criminal intent to commit an offence. Until its abolition in English law by section 34 Crime and Disorder Act 1998, it operated as a defence based on the presumption that a child under 14 years old was incapable of committing... Continue reading

Donatio mortis causa

Latin for a gift dependent on death. The gift must be made during the donor’s life but in contemplation of, and contingent upon, their death. Sometimes known as a deathbed gift. The concept derives from Roman law. There is a discussion of its origins and meaning in King v Dubrey [2015] EWCA Civ 581; [2016]... Continue reading

Double jeopardy

A plea in criminal proceedings, based on the principle that a person should not be tried twice for the same offence arising out of the same circumstances. It is a procedural defence to a criminal charge, that the defendant has already been tried and acquitted or convicted on the same charge. If so, the court... Continue reading

Duxbury tables

Tables of figures compiled according to the method approved in the case of Duxbury v Duxbury (Note) [1992] Fam 62 in order to capitalise income needs or payments over a period of time and express them as a lump sum for the purposes of an award, usually in ancillary relief proceedings, though they can be... Continue reading

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ECLI

The European Case Law Identifier or ECLI number is a pan-European publisher-neutral system of case citation. The structure of an ECLI citation is composed of the following elements, separated by colons: ECLI (optional) Jurisdiction identifier Court identifier Date unique case number Thus a typical ECLI number for the European Court of Justice would be ECLI:EU:C:2014:325 ... Continue reading

Ecocide

Ecocide is the intentional destruction of an ecosystem or ecosystems. It is not currently a crime under domestic or international law but is the subject of a campaign for it to become one. There is a proposal to amend the 1998 Rome Statute, which established the International Criminal Court (ICC) in The Hague, to include a... Continue reading

Estoppel

An estoppel prevents an individual, or a party to court proceedings, from denying a state of affairs which already exists. It works mainly in two quite separate contexts. The first is a matter of evidence. Where a court has already decided an issue or issues between two parties, one of them (A) may not argue... Continue reading

Ex hypothesi

Latin tag, often used in legal argument, meaning according to the stated hypothesis, or in line with the set of assumptions already made. By way of example (highlighted in bold): Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd [2015] UKSC 72; [2016] AC 742, per Lord Neuberger of Abbotsbury PSC: “[27]... Continue reading

Expressio unius, exclusio alterius

Latin maxim meaning that the expression of one thing excludes others. It is generally used as a canon of construction of statutes or other legal documents, indicating that the express inclusion of one or more things of a particular type necessarily implies an intention to exclude others of that type. By way of example (highlighted... Continue reading

Extempore

An extempore judgment is one given orally at the conclusion of a hearing, as opposed to being reserved and delivered (usually in writing) at a later date. The expression, from the Latin “ex tempore”, means of or from the time, but is more loosely understood to mean something spoken or done without preparation, spontaneously, on... Continue reading

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Free Access to Law Movement

The Free Access to Law Movement, or FALM, is an international voluntary association which has as its members more than 60 organisations from around the world. FALM members provide and support free access to legal information, consistent with the principles of the Free Access to Law Movement and subscribe to the Declaration on Free Access... Continue reading

Funding

Funding, in law, is the means by which a lawyer (solicitor or, through the solicitor, a barrister) is paid for work done or to be done for a client. It is different from costs (which are payable to the client for the lawyers’ work done on a case and other expenses of litigation). Funding will... Continue reading

G

Garnishee, garnishment

In civil litigation, garnishment is the process whereby a debt, or part of a debt, owed by a third party to the defendant, can be paid directly to the claimant, in satisfaction of a judgment debt. So if person A claims money from person B and the court upholds A’s claim and orders B to... Continue reading

Gavel

A small wooden hammer-like object used in American and some international courts as an instrument of case management. Though often featured in film, TV and cartoons relating to courts and as a stock image for law stories more generally, gavels are never used in English or Welsh courtrooms.

Genocide

Genocide is the intentional killing of an entire race or ethnic group of people. It is a crime under national and international law, and is the subject of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, articles I, II and III of which provide as follows: “Article... Continue reading

Glebe lands

In ecclesiastical law, an area of land within a parish used to support a parish priest. It may be either agricultural land or commercial property. In the Church of England glebe lands and the proceeds therefrom are now administered by the Diocesan Boards of Finance under the Endowments and Glebe Measure 1976.

Government Legal Department

The Government Legal Department (GLD) provides advice and legal services to the government. It is a non-ministerial department, overseen by the Attorney General’s Office.

H

Headnote

A summary, appearing at the beginning of a full text law report, encapsulating as precisely as possible the essential facts of the case (where relevant) and the principle(s) of law which it decides. In some jurisdictions it is known as a Syllabus.

I

Indictable offence

An offence of a more serious type, which can be listed on an indictment and is usually tried in the Crown Court. The most serious offences are described as indictable-only, and must be tried in the Crown Court. Medium serious ones are described as triable ‘either-way’, and can be tried in the Magistrates Court unless... Continue reading

Indictment

A formal document, issued by the prosecution, on which the offences with which a defendant has been charged are listed before trial in a criminal court.

Intellectual property

Intellectual property (IP) is the description applied to those rights which relate to human creativity and inventiveness in a variety of contexts. The main IP rights are: copyright design right patents trade marks passing off Each of these is linked to its own Glossary entry. There are a number of other IP rights, mostly derived... Continue reading

International Chamber of Commerce (ICC)

The ICC is the world’s largest business organisation, representing more than 45m companies in over 100 countries. Its stated mission includes: “to promote international trade, responsible business conduct and a global approach to regulation by combining our global influence with our unique expertise in advocacy, standard setting activities and global services.” The ICC publishes standard... Continue reading

International Court of Justice (ICJ)

The International Court of Justice, based in The Hague, is the principal judicial organ of the United Nations. The ICJ was established by the Charter of the United Nations, which provides that all member states of the United Nations are ipso facto parties to the court’s Statute. The Statute of the International Court of Justice... Continue reading

International Criminal Court (ICC)

International court based in The Hague, with jurisdiction to try states and individuals for the crimes of genocide, crimes against humanity or war crimes committed on or after 1 July 2002. The court’s jurisdiction derives from the Rome Statute (Done at Rome on 17 July 1998, in force on 1 July 2002, United Nations, Treaty... Continue reading

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Joint tenants

Joint tenants of property each have equal ownership of and rights to the entire property. If one of joint tenant dies, the other tenant or tenants continue to own the entire property. A joint tenant cannot pass their interest in property to another person by way of inheritance. They can only sell or assign their... Continue reading

Judicial activism

Also known as judicial overreach, the perception that courts have exceeded their power to interpret and develop the common law, and are straying into an area of policy properly left to the executive and legislative branches of government under the doctrine of the separation of powers.

Judicial Analytics

Judicial analytics is the generic term used to describe the use of big data techniques to extract predictions or detect biases from bulk textual analysis of past decisions. The availability of techniques such as machine learning (ML) and natural language processing (NLP) have enabled the development of more powerful analytics tools by making it possible... Continue reading

Judicial Power Project

Established as part of the centre-right think tank Policy Exchange, the Judicial Power Project aims to focus on the “proper scope of the judicial power within the constitution” and to identify issues of “judicial overreach” (the excessive exercise of judicial lawmaking power) and the usurpation of democratic parliamentary lawmaking, via legislation, by the courts, via... Continue reading

Judicial review

In public or administrative law, judicial review is a form of litigation in which the act or omission of a public authority is challenged as being unlawful because the authority did not have the requisite power in law. the authority failed to follow the proper procedure. the authority behaved so irrationally, unfairly, or disproportionally as... Continue reading

Jurisdiction

A self-contained legal system (eg the jurisdiction of England and Wales) or the set of laws that are available to a particular court (the jurisdiction of the Crown Court) or in a particular situation (the admiralty jurisdiction). See also: arbitration, conflicts of laws, legal system.

Jury

A jury is a selected number of individuals (jurors) who have sworn (ie taken a solemn oath) to reach a fair decision on matters of fact in a court. In England and Wales, juries are required to reach a verdict on the evidence in criminal trials for indictable offences, tried in the Crown Court, and... Continue reading

Jury bailiff

Sometimes called a jury usher, the jury bailiff is an official of the court who is charged with the solemn duty of escorting jurors into and out of court, administering the oath to each individual juror before the trial begins, taking them to their retiring room to consider their verdict, and conveying their questions to... Continue reading

Justice of the Peace

An adult citizen, who need not be legally trained, who acts as a judge in a Magistrates’ Court. Justices usually sit in a bench of three, and are advised on the law by a Justices’ Clerk. Also know as magistrates.

Justices’ Clerk

A legally qualified person employed in a Magistrates’ Court to advise lay Justices about points of law and procedure.

L

Law Officers

Law officers are senior legal advisors to the government. They comprise the Attorney General for England and Wales, Solicitor General for England and Wales, Advocate General for Scotland, and Advocate General for Northern Ireland. The Scottish Government has two law officers, the Lord Advocate and the Solicitor General for Scotland. The Welsh Government and Northern... Continue reading

Law Report

A law report is a record of a judicial decision on a point of law which sets a precedent. Law reports fall into two broad types: (a) full text law reports, which incorporate the full judgment(s) given by the court, together with a summary of the case known as the headnote and a number of... Continue reading

LawCite

Free case law research tool developed by AustLII (the Australasian Legal Information Institute). Enables the user to find where else a case has been cited in any of the jurisdictions whose content is indexed by one of the platforms belonging to the Free Access to Law Movement. Entering the case citation, title or other information... Continue reading

Lay advocate

The general meaning of “lay advocate” is non-lawyer who has been granted a right of audience, ie permitted to make oral (spoken) representations on behalf of a litigant. But there is also a more technical meaning, namely a person who who is trained and qualified to provide assistance in court for a litigant whose intellectual... Continue reading

Legal aid

Public funding for legal advice and representation, provided for those who cannot afford to pay for it. Eligibility for legal aid and the amount provided are governed by regulations made under primary legislation, most recently the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). It is important to note that legal aid is... Continue reading

Legal professional privilege

Legal professional privilege protects the statements made and information disclosed by a client to their lawyer, from being compulsorily revealed to anyone else, including the court. Though described as a privilege, legal professional privilege is technically speaking a right, not a privilege. It has two distinct branches: (a) Legal advice privilege, which protects the discussions... Continue reading

Legal system

The laws, courts, judiciary and lawyers of a particular nation or one or more states in a federation, commonwealth, community or union of states.

Legitimate expectation

In public or administrative law, a legitimate expectation is a clear, unambiguous and unqualified assurance, understood by those to whom it is given, that a particular course of action will be taken or a particular procedure will be followed. If a failure to do so would be unfair or an abuse of power, it may... Continue reading

Letter of credit

A letter of credit (LC) is a financial instrument (document), issued by one bank and payable by another, which guarantees the seller of goods payment if certain terms and conditions are met. LCs are commonly used to facilitate international trade. Standard terms and procedures have been developed by the International Chamber of Commerce (ICC) known as... Continue reading

Lis pendens

Latin for a case (lis) awaiting determination, or pending law suit. It may be used as an notice or warning that title to an asset, eg land, is subject to an unresolved dispute. The expression is also shorthand for the rule (in conflicts of laws cases) that the first party in time to issue proceedings... Continue reading

Litigation funding

According to the Association of Litigation Funders, “Litigation funding is where a third party provides the financial resources to enable costly litigation or arbitration cases to proceed. The litigant obtains all or part of the financing to cover its legal costs from a private commercial litigation funder, who has no direct interest in the proceedings.... Continue reading

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Magna Carta

Latin title of the famous “Great Charter” in which, by the affixing of his seal at a meeting at Runnymede (near modern Windsor) on 15 June 1215, King John gave his assent to a number of legal and constitutional principles demanded by a group of barons. It was not initially a statute, was purportedly annulled... Continue reading

Maintenance and champerty

Maintenance, in the context of litigation, is the assistance of a third party having no direct interest in the outcome of the case. It was perceived as meddling and likely to encourage frivolous litigation. Champerty is the direct financing or support of a case in which one has no legitimate interest, with a view to... Continue reading

Malum in se

The Latin expression malum in se describes something that is evil or wrong in itself. It is used in law to distinguish an offence which is inherently or morally wrong as opposed to merely being prohibited by some rule or other. The latter would be described, in Latin, as malum prohibitum.

Mareva injunction

Now known as a freezing injunction, a pre-trial court order preventing the disposal by a party of assets forming part of the subject matter of a case pending trial. As Sir Robert Megarry V-C explained in Barclay-Johnson v Yuill [1980] 1 WLR 1259 at 1262: “The Mareva jurisdiction takes its name from Mareva Compania Naviera... Continue reading

McKenzie Friend

A McKenzie Friend (MF) is someone who is not trained or qualified to act as a professional lawyer, but is permitted to attend court with an unrepresented litigant (a litigant in person or LIP) in order to provide moral and practical support, help them organise and find relevant documents when needed, and take notes. They... Continue reading

Mens rea and actus reus

Unless the contrary is specified, every criminal offence requires both a criminal act, expressed in Latin as the actus reus, and a criminal intention, expressed as mens rea. Mens rea is often described as the “mental element” in a crime. It can include what used to be known as “malice aforethought”, ie conscious planning or intent, as... Continue reading

Mens sana in corpore sano

Latin for “a healthy mind in a healthy body” – the implication being that physical exercise not only improves the condition of the body but also improves the performance of the brain. Another way of thinking about this is “mindfulness”: paying attention to the present experience and needs of the body (and the mind) in... Continue reading

Miranda rights, warning

In the United States, a Miranda warning is given to suspects before they are interviewed, reminding them that they have the right to remain silent and to refuse to provide information. Any information voluntarily provided by the suspect thereafter will be admissible in evidence against them. In effect, it serves as a reminder of the... Continue reading

Mutatis mutandis

Latin for “having changed what needs to be changed”, or less literally “other things being equal”. Generally used to indicate the applicability of a principle or idea to a different situation, having made appropriate adjustments. By way of example (highlighted in bold): Rubin v Eurofinance SA [2010] EWCA Civ 895; [2011] Ch 133 at [61] per... Continue reading

N

Nemo dat quod not habet

Latim maxim meaning “no one gives what they do not have”. Sometimes referred to as the “nemo dat” rule or principle. It refers to the question whether someone purporting to give or sell property has legal title or right to do so. If not, the gift or transfer will not take effect and cannot be... Continue reading

Nemo debet bis vexari (pro una et eadem causa)

Roughly translates as “No one should be tried twice in respect to the same matter.” This is a Latin saying that expresses what in criminal law is known as the rule against double jeopardy, ie the notion that a person should not be “vexed” or have to answer for themselves by being tried or punished... Continue reading

Nemo iudex in causa sua

Latin for “no one should be a judge in their own cause”. It is one of the cardinal rules of natural justice that no one should act as a judge a case in which they have a personal (vested) interest. Judges who find themselves in such a situation ought to recuse themselves, ie step aside... Continue reading

Neutral Citation

A neutral citation is a unique court-assigned reference number for a judgment in a common law jurisdiction. A typical neutral citation is composed of the following three elements: Year Jurisdiction and Court unique case number To which may sometimes be added a fourth element Division or List (optional) Thus a typical neutral citation for the... Continue reading

Nisi prius

A court of first instance comprising judge and jury hearing cases in the Queen’s Bench Division. The name comes from medieval Latin for “unless before”, words taken from a writ whereby the jury would be summoned to Westminster for the trial unless the case had already been heard at assizes in the country. It came... Continue reading

Notary

A notary (or notary public) is a kind of lawyer, primarily concerned with the authentication and certification of signatures, authority and capacity relating to documents for use abroad. Notaries are also authorised to conduct general legal practice (excluding the conduct of court proceedings) such as conveyancing and probate. They may exercise the powers of a... Continue reading

NZLII

The New Zealand Legal Information Institute or NZLII is a free legal research database covering case law, legislation and other materials from New Zealand. It is part of the Free Access to Law Movement.

O

Obiter dicta

Latin for “things said by the way” – observations by a judge or court about a point of law which may be interesting but do not form part of the decision in the case. An obiter dictum does not have precedential value and is not binding on other courts. In a law report, the headnote... Continue reading

Ogden tables

Tables of figures compiled in order to provide an aid for those assessing the lump sum appropriate as compensation for a continuing future pecuniary loss or consequential expense or cost of care in personal injury and fatal accident cases. A working party under the chairmanship of Sir Michael Ogden QC produced the first edition of... Continue reading

Open data

Data made freely available for republication without the need for payment or permission. An example of open data is the government information, including legislation, published under the Open Government Licence for public sector information. The Find Open Data portal allows users to search for open government data.

Open-source

A term used to describe software which is made available for others to use without paying a licence fee. Can also refer to other content or designs similarly made available for re-use, with or without acknowledgement, but without fee or licensing requirements.

P

Parental responsibility

“Parental responsibility” refers to and includes all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and their property (see sections 2 and 3 of the Children Act 1989). More than one person may have parental responsibility for the same child at the... Continue reading

Patents

A patent is an intellectual property right allowing the creator of a scientific invention to be recognised and rewarded for their work. Once registered, with one or more of the established registration authorities, a patent can be relied upon to prevent another person exploiting the invention, except under licence from the patentee. The registration authority... Continue reading

Pendente lite

Latin for during (pending) litigation. A court order may be made pendente lite, meaning it takes effect before or until the conclusion of the case. Such orders might involve making an award of maintenance in a divorce case, appointing an administrator for a disputed estate, or for the sale of a ship that is the... Continue reading

Plaintiff

The person who initiates a civil claim in law. In England and Wales the word has been replaced (since 1998) by the word claimant, but plaintiff is still used in Ireland, Northern Ireland and most other common law jurisdictions. In Scotland the word used is pursuer.

Precedent

A fact or decision which establishes a pattern to be followed by subsequent facts or decisions. In law, the word “precedent” is used to describe a decision of a senior court which is binding on (must be followed or applied by) a court of equal or lower status in a later case. Hence, also, “binding... Continue reading

Prima facie

Latin for “at first glance” or “on first impression”. It is generally used to describe a starting point for discussion or an initial view about a state of affairs which may well be changed by evidence or argument to the contrary. By way of example (highlighted in bold): Richard v British Broadcasting Corpn [2018] EWHC... Continue reading

Privilege

Privilege has a number of specific meanings in law, relating to the protection given to certain types of information or utterance. In relation to the conduct of litigation, privilege describes the right of a party to hold back information in a court case which might otherwise be relevant to the case. It takes a number... Continue reading

Pro bono publico

Latin phrase meaning “for the public good”, to describe unpaid work done by a lawyer in advising or representing clients who cannot afford to pay. Usually shortened to “pro bono”.

Probate

The court-supervised process of proving or authenticating a deceased person’s will. Its purpose is to ensure that the will is the last will and testament of the testator (the person who made the will), and that it contains the most final and genuine expression of their testamentary intentions. The will instructs the person(s) named as... Continue reading

Prohibited steps order

An order prohibiting someone having parental responsibility for a child from taking the step or steps specified in the order without the court’s consent (see section 8 of the Children Act 1989, as amended by the Children and Families Act 2014).

Prosecution

The act of bringing criminal proceedings against a person (the accused, or defendant). Also a description of the party doing so. See also, the Crown.

Prosecution, prosecutor

The process of bringing or pursuing a criminal court case against a person. The person who does this is called a prosecutor, although collectively (where they are a team) they may be referred to as “the prosecution”. In England and Wales and other common law jurisdictions for whom a monarch is head of state, the... Continue reading

Protective costs order

A protective costs order (PCO) enables a person of limited means to pursue a public interest case without running the risk of having to pay unaffordable costs if they lose. In R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600 at [6], Lord Phillips... Continue reading

Q

Quis custodiet ipsos custodes?

Latin for “who will guard the guards themselves?” Generally used to describe a situation in which a person or body having power to supervise or scrutinise the actions of others, is not itself or themselves subject to supervision or scrutiny. An example, cited by Lord Justice Toulson in the case of R (Guardian News and... Continue reading

R

Ratio decidendi

The ratio decidendi is the principle of law on the basis of which a case has been decided. From the Latin, “reason for the decision”. If novel, and binding on other courts, the ratio decidendi justifies reporting the case in a law report, the headnote of which should ideally contain an accurate and authoritative statement of the... Continue reading

Reasons

Reasons, in law, refer to the explanation which a decision-maker gives for arriving at a particular decision, and define the extent to which that decision maker must justify what they have decided. There are parallels between the decisions of the representatives of a public body (conventionally called the “decision-maker”, usually a civil servant) and of... Continue reading

Red Index

Alternative name for the Consolidated Index, a printed index and digest of case names, subject matter, and judicial considerations of other cases and legislation, published by ICLR in cumulative volumes of up to five or ten years coverage. See Products for purchasing details.

Regina

Latin for the Queen, in whose name public criminal prosecutions are usually brought. Usually abbreviated to R or Reg in case citations. When appearing as the respondent to a criminal appeal, may be written out in full as The Queen. As a party, referred to as The Crown. Claims for judicial review in the civil... Continue reading

Regnal year

Numbered year running from the date of a monarch’s accession. In citing legislation, particularly for older statutes, the regnal year of the monarch who gave the royal assent to the Act is included, as well as a chapter number. Before the Short Titles Act 1896 statutes were commonly known by regnal year and chapter number... Continue reading

Res ipsa loquitur

Latin phrase meaning “the thing speaks for itself”, usually employed to indicate circumstances in which liability for a tort is obvious or self-evident. By way of example (highlighted in bold): Southport Corpn v Esso Petroleum Co Ltd [1953] 3 WLR 773, 781 per Devlin J: “One must distingush, I think, between a case where... Continue reading

Res judicata

Roughly translates as “a matter already judged” or previously decided. This is a Latin saying that expresses the principle that where a matter of fact or point of law has already been decided, there is no justification for re-litigating or deciding it afresh. The principle is intended to promote certainty and the efficient use of... Continue reading

Reserved legal activities

A reserved legal activity is something only a suitably qualified legal professional is permitted to do, by virtue of Part 3 of the Legal Services Act 2007 (LSA). There are six reserved activities, listed in section 12 of the Act: the exercise of a right of audience – the right to appear before and address... Continue reading

Respondent

The person against whom an application or appeal in civil or criminal proceedings is brought. A respondent’s notice is a document, filed in response to an appellant’s notice, setting out why (the grounds on which) the decision of the court below should be affirmed (upheld).

Rex

Latin for the King, in whose name public criminal prosecutions are usually brought. Usually abbreviated to R in case citations. When appearing as the respondent to a criminal appeal, may be written out in full as The King. As a party, referred to as The Crown. Claims for judicial review in the civil courts are... Continue reading

S

Self-incrimination privilege

Self-incrimination privilege, also described as the privilege against self-incrimination, is what protects a person from being compelled to answer questions or provide information that might suggest they are guilty of a crime or other unlawful behaviour. The privilege reflects the general right of an accused person to remain silent, which is well established in the... Continue reading

Semper ubi sub ubi

Well known Latin maxim, which roughly translates as “always wear underwear”. In other words, and especially when going to court, BE PREPARED.

Sentence

The punishment given by a criminal court following a person’s conviction for an offence. Sentences may take the form of a term of imprisonment or some other penalty, such as community service, a confiscation order, or a fine. Sentencing is the process of considering and imposing a sentence.

Separation of powers

The doctrine that a balanced constitution requires a proper separation between the functions of the executive (the government and civil service), the legislature (Parliament and other legislative bodies, such as local authorities or rule making committees), and the judiciary (courts and judges). Basically, the legislature makes the laws, the executive implements them, and the courts... Continue reading

Silent enim leges inter arma

“In times of war, law falls silent.” A Latin maxim attributed to Marcus Tullius Cicero (Pro Milone, 52 BC). In fact this is very far from being true, in modern times at least, both at the international level (with war crimes tribunals) and in the domestic sphere, as cases such as Liversidge v Anderson [1942]... Continue reading

Solicitor General

The Solicitor General (SG) is one of the government’s two Law Officers and supports the Attorney General (AG) across a range of responsibilities. These include: deputising for the Attorney General and being responsible for such matters as the Attorney General delegates supporting the Attorney General in overseeing the Government Legal Department (GLD), the Crown Prosecution... Continue reading

Specific issue order

An order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child (see section 8 of the Children Act 1989, as amended by the Children and Families Act 2014).

Spent conviction

A “spent” conviction or caution is one which, under a scheme established by the Rehabilitation of Offenders Act 1974, no longer needs to be disclosed, eg to a future employer. Broadly speaking, a conviction for which someone is sentenced to less than two and a half years in prison, or to a non-custodial sentence, becomes spent... Continue reading

Stare decisis

Latin expression of the common law doctrine of binding precedent. Literally, “to stand by what is (or has been) decided”.

Stipendiary magistrate

A salaried full time judge who sits in a magistrates’ court, generally to hear more serious cases than those assigned to benches of two or three lay justices (of the peace). Replaced in August 2000 by the new role of District Judge (Magistrates’ Court). They can be authorised to hear cases in the Family Court.... Continue reading

Sub judice

Latin for “under judgment”, or “under consideration”, with the implication that the matter should not be discussed elsewhere. Usually refers to a pending court case, comment on which is discouraged or forbidden in order to avoid prejudicing the outcome.

Sui generis

Latin for “in a class of its own”, as opposed to “ejusdem generis”, denoting something of the same kind as others. By way of example (highlighted in bold): Inland Revenue Commissioners v Whitworth Park Coal Co Ltd [1958] Ch 792, 815 per Jenkins LJ: “(1) To come within the rule as an ‘other annual payment’ the... Continue reading

Summary offence

A less serious criminal offence which would be tried in a Magistrates’ Court.

T

Tenants in common

Tenants in common each own a separate definable interest in property, such as real estate. Each tenant’s interest can be sold, assigned or passed on under their will. Tenancy in common is to be contrasted with joint tenancy, under which each tenant’s has an equal interest in the whole property, but cannot pass it on... Continue reading

Think tank

An organisation or institute dedicated to research and advocacy on a particular area of social, political or economic policy. Whilst often claiming to be independent, a think tank need not be non-partisan, declared or otherwise, or unaffiliated to a political party. Though usually not for profit, a think tank is not obliged to publish its... Continue reading

Third Party Debt order, TPD order

In civil litigation, a Third Party Debt (TPD) order enables a debt, or part of a debt, owed by a third party to the defendant, to be paid directly to the claimant, in satisfaction of a judgment debt. So if person A claims money from person B and the court upholds A’s claim and orders B to... Continue reading

Tomlin order

A court order staying proceedings by consent of the litigating parties, the detailed terms of whose agreement are set out in a separate schedule. So called after Mr Justice Tomlin, who first proposed such an order in the case of Dashwood v Dashwood [1927] WN 276 and subsequently issued a Practice Note (Consent order) [1927]... Continue reading

Trade mark

A trade mark is a graphically represented sign by which goods or services from one enterprise may be distinguished from those of others. Once registered, a trade mark confers on the owner a right to protect the mark and prevent its use without permission. Trade mark infringement is the unauthorised use of a mark registered... Continue reading

Trust

A legal device for the transfer to or ownership of property by a legal owner (the trustee) who holds it for the benefit of another person, the beneficiary. A trust may be set up to enable the property to be given to or held on their behalf by a minor or someone lacking capacity or... Continue reading

U

UCP 600 (Uniform Customs & Practice for Documentary Credits)

The Uniform Customs & Practice for Documentary Credits (UCP 600) is a set of rules agreed by the International Chamber of Commerce, which apply to finance institutions which issue Letters of Credit – financial instruments helping companies finance trade. Many banks and lenders are subject to this regulation, which aims to standardise international trade, reduce... Continue reading

Ultra vires

Latin expression meaning “beyond the powers”, generally referring to a decision made in excess of the powers conferred on, or without the authority given to, the decision-maker. A decision made ultra vires is invalid and can be quashed by order of the court in judicial review proceedings.

Undue influence

Undue influence applies where one individual (B) uses unfair pressure to persuade another person (A) to enter into a transaction (perhaps a mortgage, a loan or agreement for sale of property) which is disadvantageous to A. If that happens A can ask the court to set aside the transaction. There a three main areas of... Continue reading

V

Verdict

The decision of a court, or of a jury in a court, determining the outcome of a case. In the criminal courts of England and Wales, and in most other common law jurisdictions, a verdict is either “guilty” or “not guilty”. In Scotland, uniquely, a criminal trial may result in one of three different verdicts:... Continue reading

W

Wasted costs

Wasted costs are litigation costs which must be paid personally by a lawyer (solicitor or barrister) where a judge considers that that lawyer has wasted another parties’ or the lawyer’s own client’s costs. Though in practice it will normally be paid by the lawyers’ insurers, it amounts to a penalty imposed by the court to... Continue reading

Whole-life order

An order mandating that someone sentencing to life imprisonment must spend the entirety of the rest of their life in prison, without becoming eligible to apply for parole. This is an exception to the general rule under which the judge, when sentencing the offender to life imprisonment, must also specify the minimum term they must... Continue reading

Will

Usually described as a person’s Last Will and Testament, the written expression of a how a person (the testator) would like their property to be distributed or disposed of after their death. A will needs to be admitted to probate, ie proved to be genuine and effective, under a court-supervised process. Only once probate is... Continue reading

Without prejudice privilege

Without prejudice privilege, sometimes described as the “without prejudice” rule, is a type of privilege relating to the conduct of litigation which is designed to protect the communications made between parties with a view to settling the dispute and avoiding the need for court proceedings. The privilege prevents those communications from being shown to the... Continue reading

WorldLII

The World Legal Information Institute or WorldLII is a free legal information research database covering case law, legislation and other materials from 48 jurisdictions in 20 countries around the world. It provides a single search facility for databases located on AustLII; BAILII; CanLII; HKLII; LII (Cornell); and PacLII as well as its own databases not found on... Continue reading

Writ of Fi Fa

Short for fieri facias (Latin for “cause (it) to be done”). An order (now known as a warrant of control) directing a High Court enforcement officer (formerly a sheriff) to seize and sell goods belonging to the judgment debtor (the person ordered by the court to pay money to another party) in order to satisfy... Continue reading

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