PRO BONO PUBLICO
On 26 April 1999, the civil courts of the English legal system are to undergo a huge change. A new set of rules is being brought in to simplify and streamline procedures, in an attempt to make litigation quicker, cheaper and simpler. An 800-page document published by the Lord Chancellor’s Department abandons traditions in favour of new procedures that give judges an active role in managing cases and dictating the pace of litigation.
One of the more significant changes is that of language. For the first time, people outside the legal system have been involved in the process of drawing up the rules. As a result, many common but obscure legal terms have been discarded, to be replaced by simple English, or at least English that is as simple to understand as possible in such a complex field. The Plain English Campaign, which has been fighting for 20 years to change legal language, is delighted: “This may be our greatest victory yet,” its founder, Chrissie Maher, is quoted as saying.
The changes have come about following a report last year by the Master of the Rolls, Lord Wolff, on Access to Justice. He said: “The system of civil justice and the rules which govern it must be broadly comprehensible not only to an inner circle of initiates but to non-professional advisers and, so far as possible, to ordinary people of average ability who are unlikely to have more than a single encounter with the system”.
For example, plaintiff goes, to be replaced by claimant. Plaintiff was at one time the same word as plaintive and is closely related to complaint. Defendants in legal actions may not be surprised to hear that it has close links to plague as well. All these words come from the Latin plaga “stroke, blow” and came into English through French. A plaintiff, therefore, was originally just a person who made a complaint, but the word became a fossil of legal terminology many centuries ago.
Another historic word that vanishes from the legal lexicon is writ, to be replaced by the prosaic “claim form”. A writ is in origin just something written down, the same word that turns up in Holy Writ for Christian sacred texts. By about 1400, it had become the standard word for a formal legal document, usually one that requires somebody to do something, or more often to stop doing something. Because of its legal links, it also has a semi-figurative sense of “authority, control”, as in phrases like “his writ doesn’t run there”.
A third word that vanishes is pleadings for the formal statements on both sides before a court case. Lord Wolff said: “I have suggested that the word ‘pleading’ should be replaced by ‘statement of case’ ... The word has become too much identified with a process which the legal profession itself readily acknowledges has to change”. The word goes back to the earliest days of Norman law in Britain, at a time when you really did have to plead your case. The word is related to plea and, through its Latin original, to please.
Many other terms also change. The legal process of discovery becomes that of disclosure. The curious Anton Piller order, named after the company that first successfully argued for powers of search to be issued without warning so that goods could not be spirited away, becomes just a search order. Similarly a Mareva injunction, intended to freeze assets pending the outcome of litigation, turns into a freezing injunction. The courts will no longer give leave, but will simply and obviously give permission instead.
The area of language in which most changes are to be made is that of legal Latin, which is being swept away in favour of words in plain English. So no longer can the parties to a court case ask for it to be in camera, they’ll have to ask to be heard “in private” instead. Hearings will no longer be inter partes or ex parte, they’ll be “with notice” or “without notice”. A guardian ad litem becomes a “litigation friend”, sub judice becomes “pending litigation”, and so on. But as the new rules apply only to civil law, we still have habeas corpus, probably a good thing, as finding a good English equivalent might not be easy.
Somehow, suing for libel will not be the same when you can no longer “issue a writ” but have to “present a claim form” instead. It’s already been said by some English commentators that changes like these will reduce the majesty of the law. A leader in the Guardian on Monday said “The lingua franca of the law may be baffling to the lay person but that, surely, was part of its charm and all of its function”. But if the changes make the law more comprehensible, surely that’s to the public good? Pro bono publico, in fact.