Civil Procedure Vocab Flashcards
1
Q
Acknowledgment of service
A
Acknowledgment of service: in the United Kingdom the defendant should file this document to show he intends to defend. If he does not do this, he has less time in which to serve his defence on the claimant
2
Q
Administrative agencies
A
Administrative agencies: public bodies to which certain administrative powers have been delegated.
3
Q
Admissible
A
Admissible: evidence is admissible if it is allowed to be brought before the court
4
Q
Adversarial proceedings
A
Adversarial proceedings: this is an accusatorial procedure, as the opposing parties are responsible for finding and presenting evidence.
5
Q
Affidavit
A
Affidavit: a written, sworn statement of evidence. They have a form almost identical to that of witness statements. However, they must be sworn before someone authorised to take oaths and fees are payable, which distinguishes these from the more informal witness statements. There are a limited number of situations in which affidavits must be used
6
Q
Affirmative defence
A
Affirmative defence: term used in the United States where the defendant does not deny the allegations but argues that there is some reason why the plaintiff’s claim should fail, for example, the claim is barred by the statute of limitations.
7
Q
American rule
A
American rule: is that the parties pay their own costs, whether they win or lose. There are only a few statutory exceptions
8
Q
Answer
A
Answer: document filed by the defendant in the United States in response to the plaintiff’s complaint
9
Q
Appeal
A
Appeal: the losing party appeals to a higher court for a review of the decision reached by the lower court
10
Q
Appellant
A
Appellant: the party bringing an appeal is known as the appellant
11
Q
Appellate court
A
Appellate court: an appellate court acts as a court of second instance, hearing the issues afresh, whether of fact or law or both. It may substitute its decision for that of the court of first instance. Note, however, that although reference is made to the term appeal in the United States, the function of the American appellate courts more often resembles that of the civil law courts of cassation
12
Q
Assessment of costs
A
Assessment of costs: formerly called taxation of costs in England. There are specific rules for evaluating the costs of an action
13
Q
Attachment
A
Attachment: in the American sense of the word, it is a writ authorising a pre-judgment lien on money or other personal property, which will be held until the final
decision in the case at issue
14
Q
Attachment of earnings
A
Attachment of earnings: English court order requiring an employer to pay the judgment creditor from the earnings of the judgment debtor. In the United States, this is referred to as garnishment, although garnishment can be pre-judgment.
15
Q
Bailiff
A
Bailiff: a bailiff is a person with the legal authority to collect certain debts
16
Q
Balance of probabilities
A
Balance of probabilities: concept in the law of evidence relating to the standard of proof in civil cases in England. The claimant must establish some reponderance of probability in his favour
17
Q
Briefs
A
Briefs: the term used in the United States for documents that may be drawn up by the plaintiff and defendant for use during a trial is trial briefs. Briefs used by the appellant and the appellee for the purposes of an appeal are called appellate briefs. In England, the word brief refers to instructions given by a solicitor to a barrister concerning the details of a client’s case.
18
Q
Burden of proof
A
Burden of proof: in general, it is the claimant who must prove all of the elements required for his claim against the defendant. If he cannot do so, then the court must
find for the defendant. There are certain circumstances in which the burden of proof may shift to the defendant, for example, where the presumption of res ipsa loquitur arises in negligence claims
19
Q
Case management
A
Case management: the judge makes sure that the claim is clear, the issues in dispute have been identified and that all agreements that can be reached between the parties about the issues involved have been reached. At the case management conference, the judge gives directions and fixes a date for the trial
20
Q
Cassation
A
Cassation: a court of cassation is only competent to make a decision upon a point of law. In the English system there are no courts of cassation as such, as the appellate courts have the right to hear issues of fact and law
21
Q
Charging order
A
Charging order: this order can be granted over the judgment debtor’s land, as the writ of control or warrant of control is only for goods owned by the judgment debtor.
22
Q
Claimant
A
Claimant: the one bringing an action is now referred to as a claimant in English proceedings and the term plaintiff is no longer in use under the new civil procedure rules.
23
Q
Claim form
A
Claim form: the usual way of commencing proceedings in England, replacing the former use of writs in the High Court.
24
Q
Class action
A
Class action: is used in the United States to bring a lawsuit on behalf of a whole group of individuals who have been affected. Instead of a multitude of individual lawsuits arising from the same issues, the matter is resolved by combining the class. One or several named plaintiffs sue on behalf of a large group who are not formally named in the suit. Class actions can be brought for either money damages or an injunction or both. Individual class members must be notified that a case is pending and have the right to ‘opt out’ and bring their own action. A class action cannot be settled by the parties without the approval of the court.
25
Complainant
Complainant: term used in the United States for one bringing an action, although the term plaintiff is often used synonymously and is the more usual term
26
Complaint
Complaint: in the United States proceedings are commenced by the plaintiff filing a document called a complaint.
27
Compulsory counterclaim
Compulsory counterclaim: term used in the United States for a counterclaim that arises from the plaintiff’s original claim against the defendant, in other words, from the same transaction. A permissive counterclaim is one that does not arise directly from the present claim. This may have to be re-filed, for example, in the appropriate state court.
28
Conditional fee
Conditional fee: the English version of the American contingency fee, which is based on a no win, no fee approach to litigation. The conditional fee agreement usually provides for a ‘success fee’ in addition to the basic charge
29
Contempt of court
Contempt of court: this may take various forms, such as failing to pay proper respect to the court or not carrying out a court order
30
Contingency fee
Contingency fee: American term where the attorney has entered into an agreement with his client that he will only receive his fee if he wins
31
Cost-shifting rule
Cost-shifting rule: English rule stipulating that whoever loses the case has to pay not only his own costs, but also the costs of the other side
32
Counterclaim
Counterclaim: a claim brought by a defendant in response to the claimant’s claim in the same proceedings.
33
Cross-claim
Cross-claim: document filed in American courts where a claim is brought by one joint party against another joint party
34
Cross-examination
Cross-examination: questioning of a witness by a party that has not called the witness, with respect to the witness’s testimony during the examination-in-chief.
35
Damages
Damages: financial compensation awarded to a claimant by the court.
36
Defence
Defence: in the United Kingdom, a document produced by the defendant in response to the claim form
37
Defendant
Defendant: the one against whom the claim is brought
38
De novo
De novo: Latin term used in the United States to describe the process by which a case is heard afresh. The findings and judgment of the trial court need not be taken into account by the appeal court, as the case is heard as if it has not been heard before.
39
Deposition
Deposition: prior to the trial itself, the witness gives evidence before an examiner and he may be cross-examined as if it were the trial itself. The evidence so given is then reduced to writing, or recorded in an audio-visual form, and is put into evidence at
the trial. This is called a deposition and the one giving evidence in this way is referred to as the deponent. In the United States it is not usually the case that an examiner will be present, just the party being examined and the lawyers
40
Disclosure
Disclosure: in English procedural law disclosure is defined as ‘stating that a document exists or has existed’. The court can impose a duty on all parties to disclose documents relevant to the issues in dispute. Standard disclosure requires the disclosure of any document that a party intends to make use of at trial: documents that adversely affect the party’s own case or another party’s case; documents that support another party’s case; or documents that must be disclosed because of a practice order. Standard disclosure is achieved by making a list of said documents available to the other party. This process was formerly referred to as discovery. There is, in general, a right to inspect a disclosed document.
41
Discovery
Discovery: the American term for a pre-trial procedure by which one party gains information held by another party. The term discovery is quite broad as used in federal civil procedure and covers varying sorts of material, such as facts, deeds and documents.
42
Document
Document: defined in English proceedings as anything in which information of any description is recorded.
43
Endorse
Endorse: where the particulars of claim are written on the claim form itself, rather than served as a separate legal document, the claim form is said to be endorsed.
44
Equitable receivership
Equitable receivership: will only be ordered if the other methods of enforcement are not possible or are unsuitable. The receiver has the right to demand payment from rent due to the judgment debtor from his tenants, income from a trust fund, a legacy or payment from the sale of land.
45
Evidence
Evidence: there are four main types of evidence: oral evidence given by witnesses during the trial; real evidence of a physical nature; documentary evidence and circumstantial evidence, the latter being evidence that can be inferred from the facts.
46
Evidence-in-chief
Evidence-in-chief: the evidence given by a witness for the party who called him.
47
Examination-in-chief
Examination-in-chief: is the term given in England to direct examination (US term), where counsel calls a witness to support his client’s version of events.
48
Expert opinion
Expert opinion: evidence given by a witness who is a specialist in a certain subject.
49
Fast track
Fast track: this is the track used for claims for a value above that for small claims but less than that for multi-track claims. It will usually be heard in the County Court.
50
File
File: a document is filed if it is delivered, by post or otherwise, to the court office. It may have to be re-filed if it was not submitted to the appropriate court.
51
Freezing injunction
Freezing injunction: order of an English court to stop a party removing or disposing of assets before trial.
52
Garnishment
Garnishment: term still used in the United States where a writ of garnishment allows the judgment creditor to seize the property of the judgment debtor which is in the possession of a third party. In certain cases there may be pre-judgment garnishment.
53
Group action
Group action: term used in England for group litigation where a number of claims arise from a common cause. Usually there are many claimants, but there may also be a multitude of defendants. Each group litigant is a member of a procedural class as a party, rather than as a represented non-party. In other words, a person must choose to litigate, to opt in, unlike the class action, where a person will be in the class unless he opts out. On the grant of a Group Litigation Order (GLO), the court takes control of the proceedings. In England this form of multi-party action seems to be preferred to the representative or class action form.
54
Hearsay
Hearsay: hearsay evidence covers statements made by persons who are not them-selves witnesses, but their evidence is brought to the fore either by someone who is a witness or through a document. There are rules as to its admissibility
55
Improperly obtained evidence
Improperly obtained evidence: is evidence that has been acquired unlawfully
56
Inadmissible
Inadmissible: certain types of evidence may not be brought before the court. For example, traditionally hearsay evidence was inadmissible unless it was covered by either a common law or statutory exception. The rules on inadmissibility have been relaxed in civil cases in England because most are no longer heard by a jury
57
Indemnity costs
Indemnity costs: indemnity costs, rather than standard costs, will be awarded only in certain situations
58
Injunction
Injunction: court order which is either mandatory, requiring a person to do something, or prohibitory, requiring a person not to do something.
59
Interim injunctions
Interim injunctions: an interim injunction is a temporary court order, either mandatory or prohibitory.
60
Interim payment
Interim payment: this is a payment made before the trial to a person claiming a money judgment.
61
Interim remedies
Interim remedies: are discretionary and may be ordered any time after the court has issued a claim form. Interim remedies include interim payments, a freezing injunction, a search order and interim injunctions in general
62
Interrogatory
Interrogatory: term used in the United States for a written request to the other party to answer certain questions under oath.
63
Joinder of parties
Joinder of parties: uniting parties in a single action, whether as claimants or defendants.
64
Judgment creditor
Judgment creditor: is the name given to the party who has been awarded a money judgment by the court.
65
Judgment debtor
Judgment debtor: the one against whom a money judgment has been ordered
66
Judgment in default
Judgment in default: where the defendant has failed to serve a defence within the required time
67
Judicial review
Judicial review: one of the tasks of the courts is to review whether public bodies have breached the principles of public law, for example, whether a public body has abused its administrative powers.
68
Letter of request
Letter of request (also called a letter rogatory): may be issued to compel a witness outside the English courts’ jurisdiction to give evidence in an English court. This evidence is usually in the form of a deposition.
69
Lien
Lien: a charge on the property of another as security
70
Mandatory order
Mandatory order: English court order (formerly called mandamus) that orders a public body to carry out a legal duty.
71
Motion
Motion: in the United States, an application made to the court with a request for an order or ruling in favour of the applicant. In the United States, use is made of various types of motions, for example, a motion to dismiss where the plaintiff has not been able to show a claim recognised in law. In England, the term application’ is now used instead of motion
72
Movant
Movant: American term for one presenting a motion. Alternatively, a movant can be referred to as the ‘moving party’.
73
Multi-track
Multi-track: this track is for claims for a value higher than that specified for the fast track. A multi-track case will be heard either by the County Court or the High Court.
74
Notice pleadings
Notice pleadings: the term given in the United States for a form of pleadings that is simple, short and not detailed
75
Part 20 claim
Part 20 claim: this refers to Part 20 of the updated English Civil Procedure Rules. It covers a counterclaim and an application for indemnity or contribution.
76
Part 36 payment
Part 36 payment: this refers to Part 36 of the updated English Civil Procedure Rules, which allows for payments to be made into court.
77
Particulars of claim
Particulars of claim: may be on the claim form itself or served as a separate document. The particulars must contain certain information about the nature of the claim and the remedy required by the claimant.
78
Paying party/receiving party
Paying party/receiving party: in England, the one ordered to pay the costs of the proceedings is now referred to as the paying party; the one receiving payment is the receiving party.
79
Perjury
Perjury: telling lies in court while under oath.
80
Permission
Permission: here used in English legal terminology to indicate that permission must be given before a civil case can be appealed. This is in contrast to the United States, where there is usually a right to appeal once.
81
Petition
Petition: means of commencing certain specialist proceedings in the High Court, such as an action to wind up a company.
82
Petitioner
Petitioner: the one submitting a petition.
83
Plaintiff
Plaintiff: the term still in use in the United States to indicate the one bringing an action.
84
Pleadings
Pleadings: in the United States this word refers to all of the documents exchanged between the parties setting out their claims and defences.
85
Preponderance of evidence
Preponderance of evidence: in the United States, the usual formulation for the standard of proof in a civil action is ‘a preponderance of evidence’: evidence is said to preponderate where it is more convincing than the opposing evidence. Sometimes, however, clear and convincing evidence is required. This is evidence that is more than usually required in an ordinary civil case, but less than the ‘beyond reasonable doubt’ required in criminal cases.
86
Pre-trial review
Pre-trial review: a review of matters prior to the trial in order to manage the action and prepare for trial.
87
Prima facie
Prima facie: Latin term meaning ‘on the face of it’ or ‘at first sight’. A prima facie case is one where a party has sufficient evidence to show there is a case to answer.
88
Privilege
Privilege: the right of a party to refuse to produce documents or answer questions on the grounds of some special interest recognised by law.
89
Prohibitory order
Prohibitory order: English court order (formerly called prohibition) that stops a public body from acting in excess of its authority.
90
Public interest immunity
Public interest immunity: this allows a party not to disclose matters on the grounds that disclosure would be injurious to the public interest, for example, with respect to matters of national security.
91
Quashing order
Quashing order: English court order (formerly called certiorari) to quash a decision either by a public body or an inferior court.
92
Remand
Remand: in this context it means that a case on appeal is returned to the trial court for a re-hearing.
93
Reply
Reply: a document in which the claimant replies to the claims made by the defendant
94
Representative action
```
Representative action: this term is used in England where the claimant is representing not only his individual interests but also those who have been similarly affected.
However, in England damages are not usually awarded in representative actions in favour of a class at large. Reference must be made to the particular loss suffered by the members of the relevant class.
```
95
Request for admission
Request for admission: term used in the United States where one party requires that the other party admits or denies in writing certain statements. Failure to respond within the time period prescribed by law is deemed an admission.
96
Request for further information
Request for further information: term now used in England, instead of the word interrogatory, where a party requests more information or clarification.
97
Requests for production
Requests for production: requesting the other party to produce documentary or other forms of evidence relevant to the claim.
98
Respondent
Respondent: when a case is appealed, or brought by petition rather than a claim form, the appealing party is called the appellant and the other party is called the respondent. A respondent is also known as an appellee in the United States.
99
Responsive pleadings
Responsive pleadings: used in the United States to indicate the defendant has responded to the complaint by admitting or denying the allegations, or by stating that he has insufficient information either to admit or deny.
100
Search order
Search order: authorises the representatives of the applicant to enter the defendant’s premises for the purpose of searching and seizing evidence where there is a risk that it will be concealed or destroyed.
101
Security for costs
Security for costs: this court order is discretionary and may be available to a defendant or respondent against a claimant, an appellant or a defendant bringing a counterclaim. The protection usually takes the form of an order for payment into court by the claimant.
102
Seizure of goods
Seizure of goods: the court issues an order authorising the High Court enforcement officer or a bailiff to seize the goods of the debtor and to sell them to satisfy the judgment debt. In the USA, the order would be directed to the sheriff.
103
Service
Service: documents used in court proceedings must be brought to the attention of the other party. The delivery, or service, of documents can take various forms, for example, personal service on the defendant/claimant or via the post.
104
Set-off
Set-off: the defendant claims he is owed money by the claimant, which he intends to set off against the claimant’s claim.
105
Settlement
Settlement: parties avoid going to trial by reaching agreement on the claim
106
Similar fact evidence
Similar fact evidence: is admissible in English courts if it is used to prove a fact in issue, for example, that the defendant has made a habit of doing something
107
Skeleton argument
Skeleton argument: both parties have to set down in a written document a summary of the submissions to be put forward during the trial.
108
Small claims
Small claims: simple claims of under a certain specified, relatively low value are allocated to the small claims track. It will generally be heard by a district judge.
109
Standard costs
Standard costs: this award means that the receiving party will be paid for legal costs reasonably incurred. The costs should be proportionate
110
Standard of proof
Standard of proof: this is less stringent in civil cases than in criminal cases. Whereas in criminal trials the prosecution must prove the guilt of an accused beyond a reasonable doubt, in civil cases the English standard is on the balance of probabilities and in America the usual formulation is a preponderance of evidence.
111
Standing
Standing (also known by the Latin term locus standi): the potential claimant must be able to show that he has standing, i.e., that he has a sufficient interest in the matter to entitle him to commence proceedings.
112
Statement of truth
Statement of truth: a statement of truth is added to statements of case or a witness statement to verify that the contents of the statement are accurate and honest.
113
Statements of case
Statements of case: under the English Civil Procedure Rules this is the collective term for the claim form, particulars of claim, a defence, any reply to the defence, requests for further information and the so-called Part 20 claim.
114
Stop order
Stop order: English court order that can be obtained to prohibit the judgment debtor from dealing with his securities
115
Strike out
Strike out: to delete a claim or cancel an action, for example, because the claim reveals no grounds for bringing an action.
116
Subpoena
Subpoena: court order requiring a witness to appear in court. In England this term is no longer used and has been replaced by the term witness summons.
117
Summary judgment
Summary judgment: it enables a claimant or a defendant to obtain judgment on the whole claim or on a particular issue without going to full trial when it is clear that either the claimant or the defendant has no real chance of success at trial.
118
Summons
Summons: this term is no longer used in England as a means of commencing an action in the County Court. It has, however, not disappeared from English legal terminology entirely, for example, a witness summons. In the United States it is still used in the sense of a legally binding notice from the court ordering the defendant to appear and defend, failing which the plaintiff may be entitled to judgment on the basis of the
allegations in the complaint.
119
Supreme Court
Supreme Court: in the English court system, the House of Lords, in its committee capacity as an appellate court was replaced by the Supreme Court in 2009. In the United States, the term Supreme Court refers either to the US Supreme Court, which is the highest court in the federal system, or it is often used to refer to the highest appellate court in a state.
120
Third party debt order
Third party debt order: new English term for a garnishee order. It enables the judgment creditor to divert money that would normally have been paid by a third party to the judgment debtor.
121
Third party proceedings
Third party proceedings: where a person other than the original claimant and defendant becomes an additional party to the proceedings. For example, where the defendant brings a claim against a person for a contribution or indemnification. In the US federal courts this is known as impleader.
122
Trial
Trial: hearing of the issues in contention tried either by a judge alone or by a judge and jury. Common law trials are a mixture of oral and written submissions. Juries in civil trials are now rare in England but usual in the United States.
123
Wage garnishment
Wage garnishment: American term indicating that a certain proportion of the judgment debtor’s earnings is subject to garnishment. Wage garnishment may in certain circumstances be available pre-judgment.
124
Warrant of control
Warrant of control: order issued in England by the County Court to seize goods and sell them to satisfy a money judgment against the judgment debtor.
125
Wasted costs order
Wasted costs order: can be obtained to impose liability on lawyers whose conduct has been improper, unreasonable or negligent.
126
Without prejudice
Without prejudice: negotiations with a view to settlement are usually without prejudice, meaning that only in certain exceptional circumstances may the content of those negotiations be revealed to the court.
127
Witness
Witness: person who gives evidence to the court either as to facts or in the form of an expert opinion.
128
Witness statements
Witness statements: whether as to facts or in the form of expert opinions, these statements are prepared in a written form. The statement must be signed, include a statement of truth and be served on the other party prior to the hearing.
129
Witness summons
Witness summons: witnesses can be compelled to attend a trial. This is the term now used in England, but before the updated Civil Procedure Rules, this summons was referred to by the Latin term subpoena.
130
Writ of control
Writ of control: order issued in England by the High Court to seize and sell goods to satisfy a money judgment against the judgment debtor.
131
Writ of execution
Writ of execution: in England this term covers several types of writs, including writs of possession (to recover land) and writs of delivery (for the recovery of specific assets). Writs of fexecution in the United States can be obtained against all types of property belonging to the judgment debtor, both real and personal, although some property is exempt.
