Latin survival kit

District Judge Pal Sanghera with a personal commentary on some Latin phrases which might scare you

Ab antiquo (or from ancient times) any lawyer walking into court without some Latin phrases under his belt was risking embarrassment.

However, for some time plain language has become the norm.

Latin is now frowned upon, even more so since the advent of the Civil Procedure Rules 1998 (CPR).

But how do lawyers brought up on arguments littered with the language of the Roman Empire cope, a fortiori when, while kicked into touch, Latin continues to shout from the sidelines?

Abundans cautela non nocet - an abundance of caution does no harm.

This once led to the drafting of countless pleadings mentioning every possible variation of the facts which could remotely be possible.

Actio personalis moritur cum persona - a personal action dies with the person.

However, this maxim has now been modified so that, for example, the personal representatives of a deceased can pursue an action for pain and suffering caused by a fatal accident.

Such action is, of course, for the benefit of his estate.

Actus non facit reum, nisi mens sit rea - for those of you who, like me, always struggled with their Latin, the courts are now less frightening places.

One can simply, and properly, say that an act does not make a man guilty of a crime, unless his mind be also guilty.

Audi alteram partem - hear the other side.

In other words, the court must hear both parties and without notice (or ex parte) applications should be rare.

Caveat emptor - let the buyer beware.

Conveyancers will know this phrase well, but it applies equally to the purchasers of second-hand cars.

Contra proferentem - (or the full phrase) verba chartarum fortius accipiuntur contra proferentem.

This does not mean that a phrase is to be construed against the person relying upon it, as it is so often asserted.

It means simply that the words of a deed are construed more strongly against the grantor.

In short, any doubt counts against the grantor but no issue arises in the absence of doubt as to meaning.

This is, unfortunately, a maxim that is quoted in credit hire cases with depressing frequency.

Curia advisari vult - this means that the court wishes to deliberate before giving judgment - reserve judgment.

De injuria sua propria - an assertion that the injury was caused through the fault of the person claiming (contributory negligence).

This is a variation of the defence of volenti non fit injuria.

De minimis non curat lex - the law takes no account of matters of very minor or trifling importance.

Let's concentrate on the real issues in the case.

Doli incapax - incapable of crime - for instance there is a legal presumption that a child under 10 is incapable of committing a criminal offence.

Donatio mortis causa - a gift by reason of death.

This is a gift of personal property made by someone who thinks that they are about to die.

There must be some evidence of delivery of the gift and it is conditional on the person not revoking the gift and not recovering.

It differs from a legacy being wholly independent from the testator's last will and testament.

Ei qui affirmat non ei qui negat, incumbit probatio - the burden of proof lies on the person who affirms and not the person who denies.

This remains so despite the need to plead a positive case in any defence.

Ex debito justitiae - as a matter of right as opposed to a matter of discretion.

Ex turpi causa non oritur actio - no right of action rises from a bad (disgraceful) reason, such as a contract for the provision of immoral services.

This is why a prostitute cannot make even a quantum meruit claim.

There are a number of versions of this principle: ex pacto illicito non oritur actio - no action arises out of an illegal contract and ex dolo malo non oritur actio - no action arises out of a fraud.

Also, the requirement of consideration before a contract can be enforceable was expressed as ex nudo pacto non oritur actio - no action arises out of a bare (in the sense of no consideration) pact.

Fiat justitia ruat coelum - let justice be done though the heavens should fall.

This has been more moderately expressed as an over-riding objective in the CPR.

Ignorantia juris neminem excusat - ignorance of the law excuses no one (least of all lawyers).

Ignorantia eorum quae quis scire tenetur non excusat - ignorance of those things which one ought to know is no excuse.

Hence, the doctrine of constructive notice.

Juris et de jure - of law and from law.

This is usually used in respect of an assumption that may not be rebutted.

It is an absolute so please do not argue about it.

Lis alibi pendens - a suit that is pending elsewhere.

Where the same proceedings are before an English court and a foreign one involving the same parties and the same or similar issues, the English proceedings can be stayed if the foreign forum is more appropriate.

Mea culpa - I am to blame.

Melior est conditio possidentis et rei quam actoris - the position of the defendant in possession is better than that of the claimant.

This is more commonly (but inaccurately) expressed by the phrase that possession is nine-tenths of the law.

Obiter dictum - an opinion of a judge on a point not directly relevant to the case before him but occasionally of some use in providing guidance on related issues.

Per incuriam - through want of care.

Quantum meruit - the amount that it is worth (deserves).

Res ipsa loquitur - the things speak for themselves.

In other words, it is blindingly obvious, but it is still a good idea to spell the things out.

Res judicata - the thing has already been judicially decided.

Normally gives rise to arguments of issue estoppel or abuse of process.

Restitutio in integrum - where a contract is rescinded, the parties become entitled to be restored to their original positions.

Subpoena ad testificandum and subpoena duces tecum - an order directing someone to appear, under penalty, to give evidence and, in the latter form, also to bring any relevant documents.

Now more simply known as a witness summons or production appointment.

Volenti non fit injuria - no injury is done to one who consents.

Plain English is clearly a valuable tool in demystifying the law and improving access to justice.

However, some Latin knowledge is still useful.

Just avoid using it.

District Judge Pal Sanghera sits at Coventry and Nuneaton County Courts