Getting the toungue round legal lexicon

District Judge Stephen Gold finds some topical and quirky words and phrases

Alacrity - manner in which the person applying to have the judgment set aside should act under Civil Procedure Rules 1998 (CPR) r.13.3(2) (court must have regard to whether application has been made 'promptly') according to Regency Rolls Ltd and another v Carnell LTL 16 October 2000 CA where applicant who waited 26 days to apply was held to have left it too long (but had no reasonable prospect of successfully defending in any event).

Ancillary disbelief - bank manager's reaction to request by party to ancillary relief application for voluminous copy statements of account citing Data Protection (Subject Access)(Fees and Miscellaneous Provisions) Regulations 2000 which set maximum fee generally chargeable for their supply at 10 in total.Bad idea - serving witness summons on expert with a view to avoiding payment of the expert's demanded fee for attending trial to give oral evidence, according to Brown and another v Bennett and another (2000) The Times, 2 November ChD in which summons set aside.Check - step to be taken by judge before making ancillary relief order whereby tentative views are measured against yardstick of an equal division (but no equality presumption or starting point exists) according to House of Lords in White v White [2000] 3 WLR 1571 in which it was said that equality should then only be departed from if there was good reason.

Costly decision - ruling that in legally aided/funded care cases governed by prescribed fees in SI 1991/2038, sched 1A (which will impact on family prescribed fee cases), the costs draftsman's fee for preparing the bill cannot be allowed on top of item 17 (in the county court, 32.50-51.75) despite CPR PD para 4.18 but item 18 - preparing for and attending assessment - makes it possible for solicitor to assess fairly the likely time in looking through a provisionally assessed bill and deciding whether to accept assessment or proceed to assessment hearing and to add a provisional figure in respect of it - A Local Authority v A Mother and Child 20 December 2000 CA LTL.Donee's delight - Contracts (Rights of Third Parties) Act 1999 which severely dented the privity of contract rule and might be used by donee on return of sub-standard goods to seller without the embarrassment of involving the donor.Escapologist - party to substantial civil claim who after report from jointly instructed single expert obtains permission to instruct own expert by reliance on Daniels v Walker (2000) The Times, 17 May CA and Cosgrove and another v Pattison and another [2000] All ER (D) 2007 Ch D.Freeze out - House of Lords' decision in Goodes v E Sussex County Council (2000) The Times, 16 June that highway authorities' duty to maintain under Highways Act 1980 s.40(1) does not extend to removing snow and ice (which puts the authorities in a more favourable position than owners of properties adjoining the highway who may, for example, be liable for injury to passers-by from snow falling from their rooves - Slater v Worthington's Cash Store Ltd [1941] 1 KB 48).Good idea - requesting court to take you off the record on an application under CPR r.42.3 without a hearing, according to Miller v Allied Sainit (UK) Ltd (2000) The Times, 31 October Ch D in which it was held that to require the personal attendance of the applicant solicitor would simply take up court time and increase costs (and remember to support the application with written evidence and not to serve the application or the evidence on the other side).Para 19 - enemy of the dilatory contained within CPR PD 51 which stayed proceedings that had not come before a judge, at a hearing or on paper, between 26 April 1999 and 25 April 2000 but which the Court of Appeal held in Reliance National Insurance Co (Europe) Ltd and another v Ropner Insurance Services Ltd 1 December 2000 meant the mere writing of a letter, even if it had come to the judge's attention and he had responded to it, had not brought the proceedings before him 'on paper' unless what the judge did could properly be construed as an exercise of his powers under CPR r.3.3.

Chadwick LJ pointed out that a judge could treat even a letter from just one of the parties as bringing the proceedings before him 'on paper' and make an order without a hearing and without consent provided that the affected parties had had their opportunity to apply to set aside, vary or stay - r.3(5) notice endorsed?Pt 36 trick - claimant makes CPR pt 36 offer, beats it on trial and is thereby strongly placed to collect interest on the award and (indemnity) costs of up to 10% over base by courtesy of r.36.21 (and while r.36.21 does not apply to summary judgment application, court may in exercise of its general discretion award a higher interest rate than 8% if claimant has beaten own pt 36 offer, which court should bear in mind as otherwise claimants might not wish to apply for summary judgment because they could achieve higher interest by going to trial - Petrotarde v Texaco Ltd 23 May 2000 LTL).Pension sharing survival kit - ability to persuade client that newspapers got it all wrong, no divine right to sharing order, fewer orders than predicted will be made, there are alternatives that may be fairer (offsetting, Duxbury payment, spousal servicing of a new arrangement, etcetera) while remembering that:l Both pension order and attachment (new name for earmarking) order must be prayed (where appropriate) and applied for but both cannot be granted for any one pension arrangement; l Basic information required from person responsible for arrangement when first appointment fixed (Family Proceedings Rules 1991 (as amended) r.2.70(2) - see SI 2000/2267); l Person responsible to be served (r.2.70(6)/(7));l Order to comprise body and annex (r.2.70(13)/(14)) with forms of annex available from the court as P1 and P2 for sharing and attachment orders respectively, and; l It all costs money (National Association of Pension Funds has issued fee guidelines to members and published a 10 guide to the new law which includes them.

For details, tel: 020 7808 1300).Protowelcome - greeting to two new pre-action protocols for construction and engineering disputes (including professional negligence claims against architects, engineers and quantity surveyors) and defamation cases on 2 October 2000 when they came into force and are ignored at peril as to costs (but even in a claim not covered by one of the four approved protocols, the court will expect the parties to act reasonably in exchanging information and documents and in generally trying to avoid proceedings - CPR Protocol PD para 4).Settlement incentive - The Late Payment of Commercial Debts (Interest) Act 1998 condemns late payers to pay interest at 8% over base rate.

On 1 November 2000 it was extended to commercial debts owed by small businesses to other small businesses (those having 50 full timers or part-time equivalents or less).

The last phase is expected to be implemented in November 2002, when large businesses shall be stingible by large businesses.Shortest living concertina - The CPR allocation questionnaire form N150 which is to be converted into single-sided pages stapled together and revised in content on 29 January 2001 after 21 months of play (although concertina form will be accepted until 30 March 2001).Track repair - change in track allocation regime as from 2 May 2000 which fixes the normal track by reference to the size of the claim only and with the size of any counterclaim or other pt 20 claim being simply factors which may lift the claim up to a higher track (CPR r.26.7) (but note that parties may consent to move downtrack and that a plus 5,000 claim allocated by consent to the small claims track will not be subject to normal small track restricted costs).District Judge Stephen Gold sits at Kingston-upon-Thames County Court