G L O S S A R Y 1 страница

abdication: an act of renouncing or abandoning privileges or duties, esp. those connected with high office.

ACAS: Advisory, Conciliation and Arbitration Service, an organisation set up to act as a mediator in industrial disputes. It mostly deals with large disputes between trade unions and managements, but also has a role to play in individual employer – employee disputes. In addition, every application to an industrial tribunal is first sent to ACAS to see if a negotiated settlement can be achieved.

acquittal: The process by which a defendant is discharged in a criminal trial after a “not guilty” verdict.

Act of Parliament: A Bill that, having passed through both Houses of Parliament is given the Royal Assent by the Queen and then becomes law. Acts of Parliament make up the statute law. The vast majority are initiated by the government of the day, but some can be launched by backbench Members of Parliament under the Private Members' Bills procedure.

adversarial: The form of proceeding adopted in English law. In both CRIMINAL and CIVIL proceedings, the party bringing the case prosecutor and plaintiff, respectively – have to prove that the allegations they make amount to either a crime or a breach of civil law. The defendant replies with counter-allegations. It is the function of the court to decide between the parties according to the evidence each side brings in support of the case. In criminal cases, the prosecution has to prove its case “beyond reasonable doubt" to the satisfaction of the court. In civil cases, the side wins that presents the more convincing case “on the balance of probabilities”. In serious criminal cases, a jury decides whether the case is proved. Only exceptionally is a jury used in civil cases. In some areas of the law, particularly divorce, it is now felt that this system is not the most useful for resolving disputes, and INQUISITORIAL system is preferred. (NOTE: adversary – adj, n)

advice: Legal advice is available from a number of sources. More and more people use advice agencies such as Citizens' Advice Bureaux (CABx) as their first port of call. If they have a serious legal problem, CABx will refer people to a solicitor, or they can approach one directly; further specialist advice can then be sought from Counsel. Legal advice can be obtained under the LEGAL AID Schemes, by way of the GREEN FORM. Some solicitors charge a flat £5 charge for an hour's worth of advice, or a free initial interview can be sought from solicitors taking part in a number of specialised LAW SOCIETY schemes, such as the Accident Legal Advice Service (ALAS) for accident victims.

advocate: A lawyer who fights-a client's case in the courts. The majority of advocates are BARRISTERS, but solicitor-advocates have RIGHTS OF AUDIENCE in magistrates' and county courts and get limited access to the higher courts. In Scotland, lawyers who specialise in advocacy are known simply as “advocates”.

affidavit: A sworn written statement of fact produced by either defendant or plaintiff in court proceedings.

appeal: A mechanism whereby one can question a verdict or sentence passed in a criminal trial or a decision or point of law in a civil trial. In theory, one can continue to appeal to a higher court right up to the HOUSE OF LORDS. In an increasing number of cases, however, leave (permission) of the Court is required before an appeal can be heard.

appropriation: (in administrative law) The allocation of a sum of money to a particular purpose

aristocracy: a privileged class of persons, esp. the hereditary nobility. 2. A government ruled by a privileged class

arbitration: A system of resolving disputes by an arbitrator rather than in a court before a judge. The procedure is much simpler and more informal than at trial and can be less costly: there is less costly: there is less need for lawyers as the arbitrator will take on the role of investigator as well as impartial judge. The arbitrator will impose a decision, unlike in CONCILIATION, where the parties are guided to a compromise by the conciliator. The SMALL CLAIMS procedure in county courts is one form of arbitration that already exists within the court system, and court-annexed arbitration (which is inwide use inthe US) is a means by which commercial disputes can be settled at an early stage to avoid full-scale litigation.

articled clerks: Trainee solicitors who are articled (i.e. apprenticed) to fully qualified solicitors for two years before, having passed all their exams, having their names admitted to the LAW SOCIETY Rolls.

Attorney General: The highest government law officer; normally also an MP, as well as a barrister. The Attorney General usually sits in the Cabinet and answers questions in the House of Commons on the administration of civil justice and legal matters in general. He/she represents the Crown in civil matters and prosecutes very serious criminal cases, often involving national security. He/she has many other discretionary powers. and is also ex officio leader of the English bar. In Scotland, the corresponding law officer is the Lord Advocate.

authority: 1. The right or permission to act legally on another's behalf; esp., the power of one person to affect another's legal relations by acts done in accordance with the other's manifestations of assent; the power delegated by a principal to an agent <authority to sign the contract>. 2. Governmental power or jurisdiction <within the court's authority>. 3. A governmental agency or corporation that administers a public enterprise 4. A legal writing taken as definitive or decisive; esp., a judicial or administrative decision cited as a precedent <that case is good authority in Massachusetts>. The term includes not only the decisions of tribunals but also statutes, ordinances, and administrative rulings.

bail: Release of a person after arrest, normally on the condition that they pay some security or accept certain conditions and return for trial at a later date. An accused person must be granted bail unless there is a good reason not to do so, and it may be refused only on certain specific grounds - for example, if there is a danger that the accused will interfere with witnesses.

bailiff: Officers of the county courts who can be sent out to recover debts and seize assets when ordered to do so by the court.

Bar: The collective term for BARRISTEPS, who are called to the Bar. The barristers' trade union is the General Council of the Bar, commonly known as the Bar Council, which looks after the interests of the profession.

barristers: Lawyers who do advocacy work and advise solicitors as Counsel, and are sometimes seen as the senior part of the legal profession. They are all self-employed and get their work through belonging to a set of CHAMBERS. They can command huge fees and are paid on a case-by-case basis. In theory, a barrister can never turn down a brief, as they are meant to operate by a cab-rank formula, never knowingly refusing a fare. In practice, this often happens as they may have to return a brief at the last moment ifthe case they are currently working on overruns. Their current Monopoly of RIGHTS OF AUDIENCE in the higher courts is potentially threatened by the Courts and Legal Services Act 1990. They may soon be allowed to enter into binding contracts for their fees – at present, they cannot sue their clients to recover their fees. However, barristers themselves cannot be sued for negligence in performance of their duty as ADVOCATES.

Bill of Rights: A declaration of fundamental freedoms, which is codified by law that both citizen and state must adhere to. Most countries have a written Bill of Rights in their constitutions, the most famous being the American one. Owing to the unwritten CONSTITUTION, England and Wales have no positive mechanism of defending individual rights enshrined by law except by appeal to the European Court of Human Rights in Strasbourg.

Binding: adj. 1. (Of an agreement) having legal force <a binding contract>. 2. (Of an order) requiring obedience <the temporary injunction was binding on the parties>

breach of contract: A failure to comply with the terms of a contract. Certain terms are implied by law – for example, certain consumer rights in contracts for the sale of goods. The party not in breach may sue the party in breach.

cab-rank rule: A rule among BARRISTERS that compels them to take any case they are offered as long as it is in their usual sphere of work, they are not otherwise engaged, and a proper fee is offered. It is designed to ensure that anyone, no matter how apparently repulsive, has someone to champion their cause. Barristers who wish to get around the rule declare themselves available only for certain kinds of work, such as administrative law. A similar rule applies among Scottish advocates.

Central Criminal Court: Otherwise known, as the Old Bailey, this is the major CROWN COURT in London, where serious murder or fraud cases are held.

chambers: The work-place of barristers. There are over 300 chambers in England and Wales, the majority being situated in the four INNS OF COURT in London. Each set of chambers usually specialises in a particular type of law – criminal, commercial or common – and is made up of a 'head of chambers', who is usually a QUEEN'S COUNSEL, and a number of junior barristers. Each chamber has a CLERK who organises the work of and sets the fees for the BARRISTERS.

Chancery Division: A division of the HIGH COURT, which deals with property disputes, disputes of title or land, trusts, company law, mortgages and wills. It is headed by the LORD CHANCELLOR, but organised by the Vice Chancellor of the Chancery Division. The 14 judges assigned to the Chancery Division sit and hear cases.

checks and balances: the theory of governmental power and functions whereby each branch of government has the ability to counter the actions of any other branch, so that no single branch can control the entire government. For example, the executive branch can check the legislature by exercising its veto power, but the legislature can, by a sufficient majority, override any veto.

circuit: The court system has been divided into six administrative areas called circuits: Midland and Oxford, Northern, North Eastern, South Eastern, Wales and Chester, Western. They are each run by a circuit administrator, and have presiding judges from the HIGH COURT in London and circuit leaders (senior barristers) organising the judicial administration. At the more important centres of population, High Court judges try both criminal and civil cases.

circuit judge: A judge who sits in the crown and county courts in the six circuits of England and Wales. There are almost 400 circuit judges, most of whom are former barristers although some were once solicitors. They are appointed by the LORD CHANCELLOR and can be dismissed by him.

Citizens' Advice Bureaux (CABx): Advice shops run by the National Association of Citizens' Advice Bureaux and financed by grants from central and local government. There are over 2000 CABx all over the country, and they are often the first providers of (free) legal ADVICE to members of the public. In fact, they can sometimes offer better advice than solicitors in such specialist areas as employees' rights. tenants' rights and consumer issues.

Civil justice Review: A report published in June 1988 after three years' work by a committee of experts into the running of the civil justice system in England and Wales. Many of the report's key proposals have been implemented by the Courts and Legal Services Act 1990. Its major findings were that delays and cost were the two most important deterrents to access to civil justice and they recommended a broad range of changes including shifting work down to the COUNTY COURTS, more new judges, extending the financial limits of the lower courts and giving judges more powers to manage cases.

civil law: That part of the law that deals with legal rights and duties that individuals many enforce-through the legal process for their own benefit.

Civil service: The body of Crown servants that are employed to put government policies into action and are paid wholly out of money voted annually by Parliament. Civil servants include the administrative and executive staff of central government departments (e.g. the Home Office and Treasury) and the industrial staff of government dockyards and factories. Civil servants may serve in established or unestablished capacities, with effects on pension entitlement, etc. The police (not being Crown servants), the armed forces (not being civil), government ministers, and those (e.g. judges) whose salaries are charged on Consolidated Fund are not civil servants.

claimant: Previously known as plaintiff. The person who takes action to enforce a claim in the CIVIL court. New civil justice rules in 1999 said the word claimant should be used instead.

claim form: previously known as writ or default summons. A document that begins many forms of civil action.

class action: A way of fighting a group civil action. This is commonly used in the US in legal actions following disasters that involve many people – for example, against drug companies when the number of victims can run into many thousands. At present, class actions are not allowed in England and Wales, although there are signs that the restrictions – particularly from the LEGAL AID administration – may soon be overcome.

clerk: Many officials in the legal system have the title of clerk. The most important are the “clerks to the justices” in the MAGISTRATES' COURTS, who advise the magistrates on law and administer the courts. Other clerks include judges' clerks, who act as personal assistants, and barristers' clerks who negotiate with solicitors on behalf of the barrister members of their CHAMBERS.

Commercial Court: A separate court inside the QUEEN'S BENCH DIVISION of the HIGH COURT. It mainly serves the domestic and international business communities and has a panel of specialist judges. The main areas it deals with are banking, property and securities disputes. Its working practices have recently been reformed, and it is held up as a model for other courts to follow, although it still suffers from long delays.

committal: The act of sending someone to trial by jury after a preliminary hearing in the MAGISTRATES' COURT.

common law: English law as a whole is referred to as a common law system. Unlike Continental systems, it is not based on a set of authoritative texts and codes, but rather has been built up through the years by decisions of judges in actual cases. The law is “recoverable” from the many sets of published law reports. Cases decided in the higher courts carry more weight than those decided in the lower courts and can overrule the decisions of the latter.

Commonwealth, the: 1 An organization of countries that used to be under the political control of the UK. It is also known as the Commonwealth of Nations or the British Commonwealth.1a. [only before noun] belonging to or involving this organization: Commonwealth countries; 2 the Commonwealth or the Commonwealth of Australia AUSTRALIAN Australia or its government

Community law: The term used to refer to that autonomous body of law validated by the founding treaties of the European Community (EC). It is concerned with matters that may affect the workings of a common market. For example, goods marketed within the EC must conform to safety standards that are the same in all member states, and the professional qualifications gained in one member state must be recognised in the others. Community law is binding on all the member states, which must give precedence to it over their own domestic laws, but only in those matters that are the concern of the EC as defined by the Treaty of Rome and subsequent amending treaties. It is the task of the EUROPEAN COURT OF JUSTICE to interpret and uphold this law. Community law, unlike most other aspects of international law, confers rights and obligations on the individuals who are citizens of the member states.

community service order: An order made (with increasing frequency) against convicted offenders requiring them to carry out work for the benefit of the community, under strictly controlled and supervised conditions. It is an alternative to other forms of sentence, especially custodial sentences. The order requires the performance of a stated number of hours of work over a specified period.

compensation: DAMAGES, that are paid to victims of accidents and LIBEL either by settlement or after a trial. Levels of compensation are usually worked out by a very complicated system, taking into account such things as loss of earnings as well as pain and suffering. The highest level of compensation paid in England and Wales to date is just over £1 million for a victim of medical NEGLIGENCE, but in the US it can run into hundreds of millions of dollars. This difference is due to the fact that, in the US compensation is set by juries, but by judges in England and Wales (except in libel cases). Discussion is taking place now about raising compensation levels, to bring them more into line with those of other countries.

Concession: n. 1. A government grant for specific privileges. 2. The voluntary yielding to a demand for the sake of a settlement. 3. A rebate or abatement. 4. Int'llaw. A contract in which a country transfers some rights to a foreign enterprise which then engages in an activity (such as mining) contingent on state approval and subject to the terms of the contract.

conciliation: One alternative way of resolving disputes, most often used in DIVORCE proceedings to smooth the legal path of separation. It is a relatively new system in England and Wales, and permits the two parties to resolve their dispute using only one solicitor and a conciliator rather than two solicitors. It is therefore much cheaper and can be a lot less stressful for the parties than a full court case. Disputes over the division of joint assets such as the marital home and, more importantly, disputes over the custody of any children can be more amicably resolved. In conciliation, the parties are guided towards a compromise by the conciliator; whereas in ARBITRATION, the arbitrator imposes a decision.

Consolidated Fund: The central account with the Bank of England maintained by the government for receiving public revenue and meeting public expenditure. Most payments from it are authorized annually by Consolidated Fund Acts, but some (e.g. judicial salaries) are permanent statutory charges on it.

constitution: The code by which an individual country is governed. In England and Wales, there is no written constitution; their system of governance has evolved over the centuries. With a constitution, there must also be a constitutional court that resolves disputes over the interpretation of the constitution; the most famous of these is the US Supreme Court.

contempt: This may occur intwo forms. The first is, interference with actual or anticipated litigation to the extent that justice may be prejudiced. Actual examples include publication of articles designed to influence the outcome of a court case, and an attempt by a solicitor’s clerk to enliven court proceedings by releasing laughing gas. The second form of contempt is refusal to obey the order of a court. In either case, the person in contempt may be fined or imprisoned. Companies that are in contempt of court risk SEQUESTRATION of their assets. The. first form of contempt sometimes leads to a conflict between the requirements of justice and the right of the media to keep the public informed on matters of public interest.

contempt of court: (civil contempt) Disobedience to a court judgment or process, e.g. breach of an injunction or improper use of discovered documents. If the injunction is served on the defendant with a penal notice attached, breach of the injunction can result in the defendant being jailed.

contempt of Parliament (or contempt of the House): conduct which may bring the authority of Parliament into disrepute.

contingency fee: The system by which lawyers are paid in civil cases in the United States, and which is currently being canvassed as an alternative for England and Wales. In the US, lawyers are paid a percentage of their clients' winnings; thus, the system is sometimes referred to as “no win, no fee”. It has come in for huge criticism: a contingency fee system means that lawyers have a personal stake in litigation, and this can lead to “ambulance chasing”, where lawyers seek out lucrative work through the misfortunes of others. A modified version of the contingency fee system may be introduced into English law, to be known as “conditional fees”. Ordinary fees would be paid but only on condition that the plaintiff wins. Criminal, family and certain other types of cases would be excluded. The main area in which the scheme would operate would be in PERSONAL INJURY cases.

contract: A legally binding agreement giving rise to enforceable rights and obligations, which, if ignored or not carried out, can lead to an action for BREACH OF CONTRACT. The terms of contracts entered into by individuals as consumers are increasingly regulated by statute.

Convention: 1. An agreement or compact, esp. one among nations; a multilateral treaty <the Geneva Convention>. 2. A special deliberative assembly elected for the purpose of framing, revising, or amending a constitution. – Also termed constitutional convention. 3. An assembly or meeting of members belonging to an organization or having a common objective <an ABA convention>. - Also termed conference. 4. Parliamentary law. A deliberative assembly that consists of delegates elected or appointed from subordinate or constituent organizations within a state or national organization, or elected directly from the organization's membership or from defined geographic or other constituencies into which the membership is grouped, and that usu. exercises the organization's highest policymaking authority <a national political convention>. Also termed assembly; congress; convocation; delegate assembly; general assembly. 5. Parliamentary law. A session of a convention (sense 4), consisting of a series of consecutive meetings separated by short recesses or adjournments, often during a convention (sense 3) that includes educational and social programs for the benefit of delegates and other members. 6. A generally accepted rule or practice; usage or custom <the court dispensed with the convention of having counsel approach the bench>.

conveyancing: The legal side of buying and selling property, usually done by solicitors. It involves checking the deeds and titles of land and drawing up contracts. In 1985, the solicitors' monopoly on conveyancing was broken, and licensed conveyancers were also allowed to do the work. This resulted in a reassessment of solicitors' working practices, as they had come to rely on conveyancing for most of their income. Under recent legislation, the market for conveyancing services may soon be opened up to banks and building societies, and a conveyancing OMBUDSMAN has already been appointed.

coroner: A judicial officer who conducts inquests into deaths where it is reasonable to suspect violence or unnatural causes. Inquests are held in coroners' courts, usually with a jury.

corporation aggregate: e.g. A company registered under the Companies Acts consists of a number of members who fluctuate from time to time.

a corporation sole: e.g. the Crown consists of one member only and his or her successors.

costs: Legal expenses payable to lawyers for their services. Following a contested case in court, the losing party has to pay the winner's costs as well as their own. The amount charged in such cases is controlled by the court through a process known as “taxation of costs”. In legally aided cases, a non-legally aided party will only exceptionally recover costs from a losing legally aided party.

counsel: Another name for BARRISTERS.

county court: Until recently, county courts were minor civil courts with limited jurisdiction. Under the Courts and Legal Services Act 1990, however, county courts hear all but the most important civil cases (which include those Of JUDICIAL REVIEW). This is brought about by transfer arrangements between the HIGH COURT and the county courts. County courts can now make any order that the High Court can in equivalent cases. There is some doubt about the ability of the county courts to discharge their increased workload, because of a lack of additional funding.

court action: Civil case in a law court where a person sues another person.

Court of Appeal: The court where APPEALS from the COUNTY COURT, HIGH COURT and CROWN COURT are heard. It is divided into two divisions: civil and criminal. It is based in the ROYAL COURTS OF JUSTICE. The normal appeal is heard by three judges, usually LORD JUSTICES OF APPEAL. However, many civil appeals are now heard by two judges; there is then a right to a further hearing before three judges, if the two judges disagree. Subject to obtaining leave, there is a further right of appeal to the HOUSE OF LORDS.

Court of Session: The supreme civil court in Scotland. It consists of the Outer House, in which important cases are tried for the first time, and the Inner House, which hears appeals from other Scottish courts (including the Outer House).

criminal law: That part of the law that relates to crimes and their punishment. A crime is a violation of a duty that an individual owes to every other individual in a society, such violation being punishable by the state.

cross-examination: The process used to question the other side's witnesses in court.

crown court: A senior court that deals with criminal cases heard by a judge and jury. There are some 90 crown court centres in England and Wales.

Crown proceedings – Actions against the Crown brought under the Crown Proceedings Act 1947. The prerogative of perfection (the King can do no wrong) originally resulted in immunity from legal proceedings, not only of the sovereign personally but also of the Crown itself (including government departments and all other public bodies that were agencies of the Crown). It gradually became possible, however, to tae proceedings against the Crown for damages for breach of contract or for the recovery of property. The form of proceedings was a petition of rights (not an ordinary action), and the procedure governing them was eventually regulated by the Petition of Rights Act 1980. The Crown Proceedings Act 1947 replaced petitions of rights by ordinary actions. It also made the Crown liable to actions for the tort of any servant or any agent committed in the course of his employment, for breach of its duties as an employer and as occupier of property, and for breach of any statutory duty that is binding on the Crown.

Crown Prosecution Service (CPS): The organisation funded wholly by the state which prosecutes in the criminal courts. It employs both barristers and solicitors and has replaced the police who formerly did most of their own prosecutions. The CPS has come in for a lot of criticism since it was established in 1986, mainly because of under-funding and under-staffing.

damages: An award of money by a court to a successful claimant (plaintiff) in a civil action, typically for a BREACH OF CONTRACT such as NEGLIGENCE. The general rule is that damages are intended to put the plaintiff into the same position (as far as money can do so as if the defendant had not caused the plaintiff any loss. Exceptionally, the court will award additional or exemplary damages as a mark of disapproval of the defendant's behaviour; this is most common in LIBEL actions. See also COMPENSATION.

defendant: Generally someone against whom civil or criminal legal proceedings are brought. See also CLAIMANT.

delict: A term used in Scots law, equivalent to the English term TORT: namely, a breach of a duty imposed by law and owed by one person to another.

Democracy: government by the people, either directly or through representatives elected by the people.

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