When the English don't speak English

Mayday, mayday, we are sinking, we are sinking!!!-------------hmmm...what are you thinking about??? (←video link)

Oh dear. How often are we surprised, amused or annoyed by non-native English speakers, their sweet and not-so-sweet mistakes? While native English speakers might not confuse sink and think, they have enough trouble with their own language – up to the point where they do not understand anything at all. This even happens to lawyers who share the same language and legal system. So let's go on a journey to English-speaking countries and their exclusive legal terms!

Let's start with the motherland

You can write love letters anywhere, but English lawyers write Calderbank letters. These are offers to settle claims, made "without prejudice save as to costs". This means that there is an express reservation of the right to refer the letter to court on the question of costs if the offer is not accepted.?A similar instrument is a Part 36 offer (named after Part 36 of the Civil Procedure Rules), which also provides a means of putting pressure on the other side to settle a case and of protecting, to some extent, the client's position on costs.

The judge has concluded that he can properly deal with the case without the need for a Newton hearing.

Here we are in criminal law: If a defendant has pleaded guilty to the offence but there is a factual dispute between the prosecution and defense versions of events that would affect the appropriate sentence in the case, the court must hear evidence on the disputed points, at a so-called Newton hearing.

Didn't we love leapfrogging when we were kids? As adults, we only jump courts! A leapfrog is a form of appeal in which a case is appealed directly to the Supreme Court (thus skipping the Court of Appeal). The case must be of general public importance.

OK time to move on. Let's stop in Dublin before crossing the Atlantic!

Ireland

A gentleman by the name of Isaac Wunder once sued the Irish Hospitals Trust in an action that was considered frivolous. He lost, but sued again and again. The Supreme Court then invented an order which requires a litigant who is found to have initiated proceedings which are an abuse of process to apply to the court for its prior consent before issuing fresh proceedings. This order, protecting the integrity of the administration of justice, carries his name.

When you want something, you normally send a demand letter or letter of claim. In personal injury cases, you send an O’Byrne letter, requesting the recipient to admit liability and make a proposal to compensate the plaintiff.

When you are dismissed, you can apply for a court order directing your employer to continue to pay salary, and also restrain them from dismissing you. Such an order is preliminary in nature as it only covers the time until the case is concluded. In technical terms, it is an interlocutory injunction referred to as Fennelly order.

From the mountains to the prairies, we arrive in the...

USA

Mary Carter is not the wife of former President Jimmy Carter, but an agreement by some defendants to settle with the plaintiff and agree to receive a percentage of any recovery against the non-settling defendants.?

When a remedy may be available for improper conduct in connection with a loan to a corporation by a controlling shareholder, we have arrived at Deep Rock.

A Markman hearing is a procedure under patent law whereby the court interprets the claim before the question of infringement is submitted to the jury.

And rules for dealing with missing e-documents to be retained and produced in litigation form the Zubulake standards. They have a negative impact on the legal position of the party obliged to do so.

Let's travel north to...

Canada

Intriguing. When you faint, you do not lose consciousness, but apply a collusive, false or fraudulent method of pleading in litigation, thus becoming a faint pleader.

A verdict in which a jury refuses to follow the judge’s direction on a point of law is so despicable that it constitutes a perverse verdict.

And when you attack the conduct of a governmental authority on the grounds that it acted unconstitutionally or unlawfully, you bring systems action.

A long journey across the Pacific to arrive in...

Australia

Have you ever sought or given consent? Probably. Have you ever "determined" consent? Probably not. Australian courts can make a consent determination. And they do. When parties reached an agreement after mediation, the court will make a formal decision on this. If they do it after trial, it is litigated determination. These are terms under the Native Title Act 1993, governing the rights of indigenous people to land. Where they can prove that they have had a continuous and unbroken connection to their country since colonisation, they can apply for recognition, giving them the right to use or live in the area. All parties having an interest start a mediation process handled by the court, which determines the outcome. Native title was introduced into law as a result of a historic High Court decision, saying that Australia was not terra nullius – a land belonging to no-one – at the time of European colonisation. This decision recognised Aboriginal and Torres Strait Islanders as being Australia’s first people, and that their rights and interests in the land and waters continued to exist despite settlement.

An owelty, on the other hand, can apply to any land owner, who may be required to pay a sum of money as part of a partition among co-owners.

And since we all have rights and duties: one of them is a greenwood duty which requires you to inform your bank of any suspected forged cheques.

Time to get on the plane again. On our way back, we stop in...

India

With its mix of civil, common, customary and religious laws, there is a lot to digest. In the area of employment, for instance, one might think that a workman is somebody who works, and a non-workman somebody who does not. In fact, when you perform managerial, administrative or supervisory work and earn more than 10,000 rupees (about 110 euros or 120 dollars) per month, you are a non-workman. A workman, on the other hand, is employed in a non-managerial capacity, performs manual, technical, operational or clerical work, and stays below that income threshold. Workmen have more rights than non-workmen.

Retrenchment is a word that often refers to the reduction of costs. In Australia, New Zealand and South Africa, it can also refer to a situation where somebody has to leave their job because there is no more work available for them (this is known as redundancy in the UK and layoff in the US). In India, it refers to the dismissal of a workman who has been employed for at least one year.

And before we return to Europe, let us reflect on standing orders. You might have them with your bank or restaurant, in parliament or in the military. Here, it is a law (the Standing Orders Act), requiring an establishment to have certified standing orders that specify working conditions (similar to an employee handbook elsewhere).

Just before returning, we realise that we have not paid England's esteemed neighbour a visit yet. Let's do that to get completely confused! Here are some Scottish legal terms:

bairns’ part | brieve | brocard | causal system of transfer | consignation | diligence on the dependence | fishing diligence | fitted account | irritancy | name and arms clause | perquisition | poinding the ground | pollicitation | privative jurisdiction | tacit relocation | taxative plan | tocher band | violent profits | vitious intromitter | warrandice

Have fun with these, and forgive me for leaving them for you to explore should you so wish.

End of journey

As we can see, the English-speaking world is full of intriguing expressions. And surprises. Up to the point where English speakers don't understand their own peers. Even in places that can't be more English than this one:

https://www.youtube.com/watch?v=I4k8dR04TzA

Ashes to ashes, and clay to clay, if the enemy doesn't get you your own folks may (James Thurber)