1 Before you read

7

CIVIL CLaIms

But is this law?

Shakespeare, Hamlet (1600-02), Act V.

1 1 Before you read

think about the subject in general

• When can a civil claim arise?• Can a claim be settled whitout going to court?• Why starting a court case should be the last resort?

2 Reading

Read the text for detailed understanding

Civil Claims

A claim is a legal action to obtain the enforcement of rights protected by law against another party or to obtain money or property. The legal document

which carries a claim is called a statement of Claim1. It can be any commu-nication notifying the addresee of any alleged2 faulty execution which resulted in damages, often expressed in amount of money that the party should pay or reimburse.

Claiming compensationCivil claims arise when an individual or a business believes that their rights have been infringed in some way. So that when a dispute arises for injury or loss, normally many solicitors who specialises in any sort of claims help the aggrieved parties to make a claim for compensation. The claim may have to be decided by a court. This process is called suing a claim3 or filing a claim.

English for Lawyers60

going to courtIssuing a claim in a court can be very expensive and should be regarded as a last resort. People must pay for the solicitor’s fees and other expenses. If they lose the case, they may also have to pay the costs of the person or organization they have claimed against. It is likely that some form of negotiation will take place as alternative dispute resolution to sort out complaints and legal problems with-out going to court.The most usual situation is that the person making the complaint will write a letter to the other side, setting out the complaint.Many cases will be resolved at this stage by the other party agreeing to refund money.If the other party will not settle the claim, the next stage is to get legal advice. Lawyers generally attempt to settle disputes out of court before advising litiga-tion.

The letter below is a type of text written by a lawyer on behalf of his client trying to settle the case out of court.

Bedford & SimpsonSolicitorsChancery House1 Bell LaneSouthamptonDN1 3GF

29 October 2009

Mr Hugo DouglasC&S Plumbing and Heating ServicesUnit 13 St James Industrial Estate SouthamptonDN2 3SQ

Dear Sirs

Our client: Emma Morgan

We are acting for Mrs Emma Morgan who has asked us to contact you on her behalf. Mrs Morgan has instructed us that you carried out some plumbing and building work

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in her home at 25 High Street in June 2000. Mrs Morgan claims that despite numerous telephone calls and let-ters to your place of business, you have failed to reply to the complaints that she has made concerning the work that you carried out. We draw your attention to the fact that despite having no formal written agree-ment a verbal contract exists between you.Our client would like to raise the following points with you:1 You agreed to remove an old gas fire from her living and repair the damage to the wall. You removed the fire on 25 June 2000, but to date the wall has not been repaired.

2 You installed a new hot water boiler in the kitchen and suggested that for an extra payment of £160 you would build a cupboard around it so that it would not be visible.You installed a new boiler on 26 June 2000 but failedto fit the cupboard according to your agreement.

Our client also tells us that in addition to this, you have not supplied her with a receipt for the cash amount of £ 1,700 that she gave you on 25 June 2000.Our instructions are to commence proceedings against you if we do not receive satisfactory proposals for settlement of this matter within 15 days.

Yours faithfully

Bedford & SimpsonBedford & Simpson Solicitors

starting a court caseHowever if the other side refuses to pay the debt, this may involve starting a court case. This process is called filing a claim or issuing a claim3. In England most civil claims are filed in the County Court and the High Court. There are over 200 County Courts in England and Wales, so most major towns have a court.


In the UK the person starting the claim is called the claimant4. Until 1999 this person was called the plaintiff, when there were new court rules in England to make everything easier for people to understand. However, in the USA the claim-ant is still called the plaintiff. In both England and the USA the other party is called the defendant5 who is found liable6 or not liable.A claimant starts a claim for a lot of reasons:• bad workmanship• housing disrepair• road traffic accident• personal injury• goods not supplied; and • faulty goods

County Courts deal with all these types of claim. Sometimes people talk about the small claims court. What they really mean is the special procedure that exists at the County Court for small claims. A small claim is cheap and easy. Under the Civil Procedure Rules 1998, civil claims for a maximum amount of £ 5,000, against a person, firm or company in England and Wales, are dealt with in the County Court under the small Claims track. This is generally known to the lay public as the small Claims Court but does not exist as a separate court. Claims between £5,000 and £15,000 that are capable of being tried within one day are allocated to the fast track and claims over £15,000 to the multi track. These tracks are labels for the use of the court system – the actual cases will be heard in the County Court or the High Court depending on their value.

Civil Claims 63

3 Text notes

1 legal document2 claimed that something bad is true3 making a claim known publicly4 person who asks to be given something which they think they are entitled to5 person accused of a crime6 guilty


4 Comprehension

a Answer these questions.

a What is the purpose of this letter?b Why does the solicitor think it is a good case for a claim?c What does the solicitor hope to get as a result of his claim?d What damages are the solicitor suing for?e Does he mention his client’s rights?f Are there any chances that the solicitor may be given the client’s compensa-

tion?g Do you think he is likely to be successful?

B Decide whether these statements are true (T) or false (F).

Example: Can a claim be settled without going to court?Answer: T

a Issuing a claim at court is an expensive exercise.b People must have a good reason for suing.c The letter does not suggest that the other party is at fault.d The insurers’name and address are required by the solicitor.e Normally people need not an expert to make a claim.f Solicitors advise clients that it is worth making a claim.g Making a claim for compensation may not be the first thing.h Damages are not sued by solicitors.

5 Vocabulary

a Complete the following letter with an appropriate word from the list below in the correct position. There is an example at the beginning (0).

working boiler right to repair issue work claim against

Dear Mr Smith

You came (0) to repair my central heating (1) _______ on 6 April. I rang you on 7 April and again on 10 April to tell you it was still not (2) _______ properly.You promised to call and put it (4) _______ but did not. I had to get someone else to come and repair it on 26 April which cost £ 157 + VAT.I asked you on 2 June to pay this money because it was(4) _______ you should have done.You have not paid it.If you do not pay me the money by 19 June 2002 I will(5)_______ a county court (6) _______ (7) _______ you.

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B Find words in the text that have the definitions below. An example is given.

Example: Starting a legal case against someone.Answer: Issuing a claim

a A demand for something you think you have right to.b A company that sells insurance.c A person who claims for compensation.d To bring a civil action against someone.e Who are formally qualified in their profession.f A person who asks to be given something which they think they are entitled to.

6 Writing

a State in a single sentence what is your opinion about the client’s claim against Mr Hugo Douglas.

B Write brief notes about starting a claim. Use the following points:

• the facts of the case• why the other party is at fault• injury or damage.

XX Language style: Legalese

The language of the law used by lawyers and other legal professionals in the course of their work is characterized by specific features which can make it dif-ficult to understand. It has particular relevance when applied to the drafting of written materials including:

• legal documents: contracts, licenses etc.• court pleadings: summons, briefs, judgements etc.• laws: Acts of Parliament and subordinate legislation, case reports• legal correspondence.

Key features

The language of legal document in English have been distinguished by the fol-lowing features of legalese:

• Use of technical terminology or terms of art that when used in law have dif-ferent meanings from every day usage, such as action (a lawsuit, not move-ment), consideration (support for a promise, not kindness), execute (to sign, not kill), and party (a principal in a lawsuit, not a social gathering).

• Use of archaic or rarely used words or expressions such as hereinafter, hereby, aforesaid.


• Use of foreign words and expressions, mainly from Latin such as ex parte (on behalf of) or ratio legis (the reason for a law), and from French such as estoppel acquis communitaire which refers to the entire body of EU law;

• Lack of punctuation. In old-fashioned legal drafting there is complete lack of punctuation. In modern legal drafting, punctuation is used for the same rea-son as it is used in ordinary writing.

• Use of unfamiliar pronouns. For example, the same, the said, the aforemen-tioned etc. The use of such pronouns in legal text is interesting since fre-quently they do not replace the noun but are used to supplement them. Ex-ample: the said John Smith.

• Use of long, complex sentences, with intricate patterns of coordination and subordination.

• Frequent use of passive constructions over active voice construction which requires fewer words and makes the writing more interesting. For example the following sentence is passive:

This is a purely legal question to be decided by the court.

We can improve this sentence by changing it to active voice:

The court decides this purely legal question.

• Use of doublets and triplets. There is a historical tendency in legal English to string together French, Latin and English words to convey what is a single legal concept.

Examples are null and void, terms and conditions, agree and convenant.

• Use of highly impersonal style writing. Example:

This letter is for the purpose of retaining your services as a consultant regard-ing the above-referenced matter.

The sentence is much clearer with second-person pronouns we and you:

We would like to retain you as a consultant in this case.

• Use of phrasal verbs. Phrasal verbs play a large role in legal English, and are often used in a quasi-technical sense. For example, parties enter into contracts, put down deposits, serve (documents) upon other parties, write off debts, and so on.

• Use of “legalese” adverbs as hereof, thereafter which are adopted in ordinary modern English.

The preceeding features makes much legal writing very formal, but lawyers believe formal language is more fitting to the serious purposes of the law and do not want to adapt their formal writing style to the modern environment.

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The defense of legalese (a term for legal writing) or traditional legal writing style rests on the theory that legalese is more precise and less ambiguous than plain English. Modern plain-English experts disagree with this theory. They think that the simplest English is the best for legislation. Sentences should be short. Long words should be avoided. Do not use one word more than is necessary to make the meaning clear.

The language of lawyers need not be intricate and barbarous. Lawyers often have to explain the meaning of a legal document to a client in plain language. Plain language is more precise than traditional legal writing with all its excess but any change will be slow.

XX Discuss and compare

• Are English claims most similar to the claims of your country?• Is there a division between claims and smaller claims in your legal system?

If so, give simple answers.• In England most civil claims start in the County Courts. Where do they start

in your country?

greetings and FarewellsThe normal conventions of greetings and farewells in letters are:dear Mr Bailey (the name of the addressee) yours sincerely,dear Sirs (unnamed addressee) yours faithfullyWe normally use the name of the addressee if we know it.

Test Your Professional English-Law by Nick Brieger,London, Penguin 2002.

WebsiteFor more information on the plain English movement, click on:www.plainenglish.co.uk/law.htm

1IntRoDUCtIon to LaW

Part 1

Basic concepts

Read through the text quickly. For each question (1-12), choose the best word to fill each gap from a, B, c, or d below. There is an example at the beginning (0).

Why do we have (0)..a.. and legal systems? At one level, laws can be seen as a type of rule which is meant to (1) ....... behaviour between people. We can find these rules in nearly all social organizations, such as families and sports clubs.Law, the body of official rules and regulations, generally found in constitutions and (2)......., is used to govern a (3)....... and to control the behaviour (4)....... its members. In societies, a body with authority, such as a (5)....... or legislature, makes the law; and a law enforcement agency, such as the (6)......., makes sure it is observed.In addition to enforcement, a body of expert (7)....... is needed to (8)....... the law. This is the role of the judiciary, the body of (9)....... in a particular country. Of course, legal systems vary (10)....... countries, as well as the basis for (11)....... a case before the court or tribunal. One thing, however, seems to be true all over the world-starting a legal action is both (12)....... and time-consuming.

Test Your Professional English-Law by Nick BriegerLondon, Penguin Longman publishing, 2002.

0 a laws B rules c regulations d constitutions

1 a rule B behave c govern d control

2 a act B statute c legislation d instrument

3 a family B mankind c organization d society

4 a in B about c from d of

5 a room B court c tribunal d community

6 a bobby B officers c police d constable

7 a lawyers B barristers c solicitors d counsels

8 a begin B follow c apply d uphold

9 a judges B jurors c advisors d magistrates


10 a through B from c to d between

11 a driving B bringing c reporting d taking

12 a valuable B legal c effective d expensive

Part 2

the sources of law

Decide whether the statement A or B is true.

1 In the past the sources of law have usually been

a only Acts of ParliamentB customs and judicial decisions.

2 New important sources of law became

a delegated legislation and European lawB judicial decisions.

3 The legal system in England and Wales relies on

a the English common lawB the civil law of Rome.

4 Custom is

a the original source of common lawB the unvarying habit that has the force of law.

5 Common law is

a the law made by parliamentary legislationB the law that developed from customs and judicial decisions.

Part 3

common law

Read the text carefully and decide whether the following statements are true or false.

Common law is the basis of our law today: it is unwritten law and is different from laws that have been created by statute or other.Originally common law meant the law that was not local law, that is, the law that

Test Your Legal English Skills 181

was common to the whole of England. More usually the phrase will signify the law that is not the result of legislation, that is, the law created by customs of the people and the decisions of the judges, which we call precedents. Gradually, the judges selected the best customs and these were then used troughout the country. Thus the law became uniform or “common”, and it is from here that the phrase “common law” seems to have developed.Again, the phrase may mean the law that is not equity; in other words it may mean the law developed by the old courts of common law as distinct from the system, called equity, developed by the old Court of Chancery.A common law system is one based fundamentally on English common law as distinct from a civil law system based on the civil law of Rome.

true / False

1 Common law was distinct from local customs, it was the law common to the whole country. ____________

2 The phrase signifies the law that is the result of legislation. ____________

3 Common law is used to distinguish laws developed by judicial decisions from laws created by statutes. ____________

4 The phrase “ common law” may mean the law that is eq-uity. ____________

5 Common law is not the basis of our law today. ____________

6 Common law and equity are not contrasted. ____________

7 Common law contrasted with civil law system which require all laws to be written. ____________

8 Judicial precedent is not fundamental in the English legal system. ____________

9 Common law was unwritten law that developed from cus-toms and judicial decisions. ____________

10 Common law system is based on the civil law of Rome. ____________

Part 4

equity

Read Duhaime’s dictionary definition below. For each question (1-3), mark the letter next to the correct answer a, B or c below.

A branch of English law which developed hundreds of years ago when litigants would go to the King and complain of harsh or inflexible rules of common law which prevented “justice” from prevailing. For example, strict common law rules would not recognize unjust enrichment, which was a legal relief developed by the equity courts. The typical Court of Equity decisions would prevent a person from enforcing a common law court judgement. The kings delegated this special


judicial review power over common law court rulings to chancellors. A new branch of law developed known as “equity”, with their decisions eventually gaining precedence over those of the common law courts. A whole set of equity law principles were developed based on the predominant “fairness” characteristic of equity such as “equity will not suffer a wrong to be without a remedy” or “he who comes to equity must come with clean hands”. Many legal rules, in countries that originated with English law, have equity-based law such as the law of trusts and mortgages.

1 What does equity mean?

a equal treatment to every oneB equitable remediesc natural justice and fairness

2 Why was equity developed?

a to mitigate the strict rules of common lawB to overrule the judge made lawc to be administered by the Chancery courts

3 What was the purpose of equity?

a to gain precedence with their decision over those of common law courtsB not to suffer a wrong to be without a remedyc to operate through principles rather than rigid rules

Parte 5

Basic legal terms

The following terms introduce you to the law and basic legal terminology. Match the definitions on the lefrt to each on the right.

1 law passed by a government a common law

2 equal treatment to every one B delegated legislation

3 unwritten law developed from customs c equity

4 particular branch of law d Act of Parliament

5 the main source of new laws e private law


Part 6

the european court of justice

Read the text quickly. For each question (1-3), choose the best word to fill each gap from a, B, c, or d.

Article 220 of the Treaty of Rome states that the European Court of Justice must ensure that in the interpretation and application of the Treaty the law is observed. The court sits in Luxembourg and has 15 judges one for each Member State. Judges are appointed under Article 222 of the Treaty of Rome from those who are eligible for appointment to the highest judicial posts in their own country. Each judge is appointed for a term of six years. The judges select one of them-selves to be President of the Court.The court is assisted by nine Advocates General. Each case is assigned to an Advocate General whose task is to present publicly, with complete impartiality and independence, reasoned conclusions on cases submitted to the court. The court has two key functions. The first is that it hears cases to decide whether Member States have failed to fulfil the obligations of the Treaty. The second key function, which is very important, is that the Court of Justice has jurisdiction to give preliminary rulings.

AQA LAW for As by Jacqueline MartinLondon,Hodder & Stoughton, 2002.

1 What does Article 222 refer to?

a judges who are appointed from those who are eligibleB judges who cannot be re-appointedc regulations, directives and decisionsd the President of the Court selected by the judges.

2 What is the main task of an Advocate General?

a to present reasoned conclusions on cases submitted to the Court of JusticeB to ensure complete partiality and dependence on Cases submitted to the

Court of Justicec to refuse to assist the Court in the performance of its dutiesd to submit national law to the Court.

3 What is the main function of the Court?

a to decide if Member States have not failed the obligations of the TreatyB to ensure that the law is uniform in all Member Statesc to hear references from national courtsd to have jurisdiction to give preliminary rulings.


Part 7

the european Union law

Decide whether these statements are true or false.

true / False

1 Member States are required to incorporate European legis-lation into national law. __________

2 The national legislation of Member States takes precedence over Community rules. __________

3 Regulations are not binding on all Member States. __________

4 Regulations automatically become law in Member States. __________

5 The EU treaty is applicable in every Member States. __________

Part 8

the nature of the english legal system

Say whether the following statements are true or false.

true / False

1 In case of conflict common law rules prevail over the rules of equity. __________

2 Statutes override common law. __________

3 In English law legislation is a sorce of secondary importance. __________

4 The prevalence of statute has greatly diminished the impor-tance of the judge’s role. __________

5 EU legislation is supranational, it overrides national laws. __________

6 English law, being unwritten, is essentially customary in nature. __________

7 The rigidity of case-law can be overcome by judicious use of statutes. __________

8 Over the century the English legal system has evolved slowly into what it is to day. __________

9 In the last few years there has not been a considerable am-mount of statutory codification __________

10 English law has been constructed mainly along procedural lines. __________


Part 9

international law

International law consists of rules which govern the relations and dealings of nations with each other.It concerns with questions of rights between several nations or nations and the citizens. In recent years the line between public and private international law has become increasingly uncertain.

Classify the following legal areas into the apropriate column a or B.

adoption arms control asylum contractal relatios human rights divorce environ-mental issues immigration international crime war crime

a B

Public international law Private international law

1 _____________________ _____________________

2 _____________________ _____________________

3 _____________________ _____________________

4 _____________________ _____________________

5 _____________________ _____________________

6 _____________________ _____________________

7 _____________________ _____________________

8 _____________________ _____________________

9 _____________________ _____________________

10 _____________________ _____________________

Documents

1 Before you read