Civil Litigation Jargon Buster

Affidavit

A written statement sworn upon oath or affirmation and signed in the presence of a person who is authorised to administer oaths (normally a solicitor or legal executive.

Amendments

Alterations sought to specifications or other documents because the drafter has become aware of new facts, circumstances have changed or because he has changed his mind.

Arbitration

An alternative method of resolving disputes between parties. The right of Appeal from a decision of the arbitrator is limited by the Arbitration Act of 1979.

Burden of proof - The obligation of proving facts. In general, the burden (onus) lies on the claimant to prove.

Certiorari

In connection with judicial review, one of the remedies available - to bring before the court some allegedly unlawful/arbitrary action or decision so that the court might enquire into its legal propriety and decide whether or not it should be quashed.

Claimant

The name, under the Civil Procedure Rules, given to the party making a claim in the Courts. (Previous term = plaintiff).

Claim form

Under the Civil Procedure Rules, the name given to a Writ/Summons. A claim form is used to commence proceedings in the High Court or the County Court irrespective of the nature of the claim. (For Appeals to Patent Court from the Comptroller see ‘Notice of Appeal’ below).

Corrections

Alterations sought to a specification or other document so that it better expresses the intention the drafter had at the time of drafting.

Counter-Claim

A document filed in response to a Claim. The document sets out fully the grounds of opposition or objection i.e. which allegations in the Claim the opponent disputes and which he does not.

CPR

Civil Procedure Rules 1998 – civil rules for proceedings in the High Court and County Court.

Damages

A sum of money awarded by the Court as compensation to the claimant.

De minimis non curat lex

[The law does not concern itself with trifles]. Small departures from the law may be overlooked if not significant.

Deponent

The name given to a person who makes a deposition (i.e. affidavit) under oath.

Disclosure

Usually in the form of a request, this relates to the making available of relevant documents believed to be in the possession of the other party in inter partes proceedings.

Injunction

A court order prohibiting a person from doing something or requiring a person to do something.

Inter Partes proceedings

Proceedings arising between two or more parties.

Judicial Precedent

A previous judicial decision or preceding that may be relied upon.

Judicial Review

Where no right of appeal is given, it may be possible to challenge the decision of an inferior court or public tribunal by recourse to the supervisory jurisdiction of the High Court. This means that generally only decisions of the Comptroller in respect of which no appeal is available, decisions under the PCT and decisions of the RDAT are likely to be subject to judicial review.

Jurat

The final statement signed by a person who is authorised to administer oaths indicating when the affidavit or statutory declaration was sworn, affirmed or declared.

Locus standi

[A place of standing]. A right to be heard in court or other proceeding.

Mandamus

In connection with judicial review, one of the remedies available - to issue an order of the court requiring an inferior tribunal to do something it has previously unlawfully refused to do.

Mediation - An alternative method of resolving disputes between parties. A mediator is appointed to help both parties reach an acceptable solution.

NOPI

Not open for Public Inspection.

Notice of Appeal

Appeals to the Patent Court from the Comptroller must be in the form of a Notice of Appeal.

Obiter dictum

[A saying by the way]. An observation on a legal question suggested by a case but not arising in such a manner as to require a decision. Therefore not binding as a precedent.

OPI

Open for Public Inspection.

Part 36 offer

Under the CPR, applies to either party and thus applies to the Claimant where the relief sought is a payment and in all other instances where the relief sought is not in respect of payment. The Rules provide that the offer must be in writing and can relate to the whole claim or part of a claim.

Particulars of case

Term used in Civil Procedure Rules. They may be included in the claim form or may be serve separately when starting proceedings.

PD

Practice Direction supplementing a Civil Procedure Rule.

Plaintiff

Under the Civil Procedure Rules now known as ‘Claimant’

Pleadings

Under the Civil Procedure Rules now known as ‘Statement of Case’

Practice form

Form to be used for a particular purpose in court proceedings, the form and the purpose being specified by a Civil Procedure Rules Practice Direction.

Pre-action protocol

Statements of understanding between legal practitioners and others about pre-action practice and which are approved by a relevant Civil Procedure Rules Practice Direction.

Precedent

A previous decision or proceeding which may be relied upon.

Preliminary hearing

A hearing appointed to decide a point of procedure, usually in inter partes proceedings.

Priority Document

A document which establishes a priority date.

Prima facie

[Of first appearance; on the face of it] -based on a first impression.

Privilege

The right of a party to refuse to disclose a document or produce a document or to refuse to answer questions on the ground of some special interest recognised by law.

Prohibition

In connection with judicial review, one of the remedies available - to prevent some allegedly unlawful/arbitrary action from taking place.

PHR

Pre-hearing review. The purpose of this is to ensure that all the issues raised at the case management conference have been dealt with and to give any final directions considered necessary in relation to the hearing.

Ratio decidendi

[The reason (or ground) for a judicial decision]. Usually a statement of law applied to the problems of a particular case. In essence, the principle upon which a case is decided.

RSC

Rules of the Supreme Court. (“The White Book”).

Search Order

Previously known as an ‘Anton Pillar Order’ taking its name from the first case that developed the concept (Anton Pillar –v- Manufacturing Processes, 1975). Issued by the High Court, the order allows premises to be searched and infringing material seized. Safeguards exist to prevent abuse.

SI

Statutory Instrument.

Statutory Declaration

A written declaration agreed in the presence of a Justice of the Peace or a person who is authorised to administer oaths, but not made upon oath or affirmation.

Statement of Case

The statement and the counter-statement filed in inter partes proceedings are each a statement of case. Taken together, these documents indicate the facts that are in dispute between the parties and the relief sought.

Statement of Truth

All statements of case, witness statements and applications to the court must contain a statement by the parties confirming that they believe the facts they have set out to be true to the best of their knowledge.

Stay

A stay imposes a halt on proceedings. Within the courts, although proceedings may be stayed, any steps allowed by the Civil Procedure Rules or the terms of the stay, may be taken. Proceedings may continue once a stay is lifted.

Subpoena

A writ i.e. a document which requires a person to do or to refrain from doing something.

Substantive Hearing

The final hearing in inter partes proceedings following which the Comptroller will issue a decision on the main matter in dispute.

Ultra vires

[Beyond the powers]. Term relates generally to the excess of legal powers or authority.

Witness statement

A signed written statement equivalent to the oral evidence which that witness would, if called, give in evidence at the hearing.

Writ

See entry under ‘Claim form’ above