Legal Latin Friday

A new latin term every Friday.

Latin judgments—A writ by any other name…

AB INITIO it should be said that there is a good prima facie case for the decision of Lord Irvine, the Lord High Chancellor, to simplify the language used in court as part of the civil law reforms which bear the imprimatur of the Master of the Rolls, Lord Woolf. From April 26 Lord Irvine wants lawyers, pro bono publico, to be much more straightforward in the way they speak pendent lite. Out will go, inter alia, hearings in camera or ex parte. In will come hearings in private or without notice. Plaintiffs will be replaced by claimants. Newspaper editors will no longer live in terror of writs Instead they will tremble at claim forms. Mr Anton Piller will soon be forgotten except in cobwebbed old tomes. The eponymous legal term will be succeeded, ad infinitum and sine die, by a plain old search order.

News of the proposed changes was announced by electronic fiat on Lord Irvine’s website and it is as yet unclear whether more traditional lawyers will view them as a casus belli or as an act of force majeure which defy restitutio in integrum. The lingua franca of the law may be baffling to the lay person but that, surely, was part of its charm and all of its function. Lord Hoffman’s judicial colleagues recently found that he was ‘a judge in his own cause,’ a phrase which lacks any undertones of majesty or even mystery. How much more satisfying if they had pronounced that he had offended the basic principle of nemo debet esse judex in propria? Would his noble lordship then have shrugged the matter aside so lightly? Per contra, we think. Matters that are sub judice or lis pendens have a forbidding ring to them which is sadly lacking in ‘pending litigation.’ Ultra vires is not without authority as a piece of legalistic verbiage: habeas corpus, translated into English, lacks a certain body.

All this could, in time, have a serious impact on another old legal concept, derived either from the Latin Feudum, the Old English feoh, or some say, the Frankish fehu-od. Nowadays most lawyers tend to refer to them simply as ‘fees’. They customarily arrive in the form of a ‘bill’ (from med. Lat, bulla) and elaborately set out the price of, exempli gratia, interlocutory this, mandamus that, half a dozen subpoenas, two dozen affidavits and a fair old quantum of res ipsa loquitors. The distilled wisdom of centuries goes into the construction of these magnificent documents. Is Lord Irvine really saying that under New Labour lawyers will be required to abandon this age old modus operandi and tell their clients what they’ve been up to in plain English? It is difficult to imagine a greater scandalum magnum for rotond felines fom Gray’s Inn to the Middle Temple As the traditional Latin saying goes: Caveat feles obessus!
—The Guardian Newspaper, 1 Feb. 1999, p.17 “Leading Article: Latin judgments—A writ by any other name…

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Ab initio |ab ɪˈnɪʃɪəʊ|
from the beginning (used chiefly in formal or legal contexts) : the agreement should be declared void ab initio.

adjective [ attrib. ]
starting from the beginning : he was instructing ab initio pilots.
ORIGIN early 17th cent.: Latin.

COMMENTARY: ‘The expression has a specific meaning in the law relating to trespass. Where a person, having entered upon land under a lawful authority, subsequently abuses that authority, his misbehaviour will relate back so as to make his original entry wrongful; so as to make himself or passer ab initio.’ Gray, Laywers’ Latin (2002), p.21. ‘Where a man misdemeans himself or makes an ill use of the authority with which the law entrusts him, he shall be accounted a trespasser ab initio.’ Blackstone, Commentaries, iii, p.213.

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Prima facie |ˌprīmə ˈfā sh ə|
adjective & adverb Law
based on the first impression; accepted as correct until proved otherwise.

[as adj. ] a prima facie case of professional misconduct.
[as adv. ] the original lessee prima facie remains liable for the payment of the rent.

ORIGIN Latin, from primus ‘first’ + facies ‘appearance.’

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