Category Archives: law

Claimant, plaintiff, pursuer / Kläger

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Parties to civil proceedings in England:
Up to 1999: plaintiff and defendant
(divorce: petitioner and respondent)
A claimant included a person claiming some benefit, for instance unemployment benefit.

From 1999 (Civil Procedure Rules)
claimant and defendant
(divorce: petitioner and respondent)
A claimant for unemployment benefit etc. (as before)

In Scotland: pursuer and defender
(divorce: petitioner and respondent)
Benefit claimant as above

Most English websites mention ‘claimant (plaintiff)’ – after all, it’s only been seven years since the change. A Google search for claimant -plaintiff site:uk produces mainly references to benefit claimants.

Here’s an exception: the claimant user guide of Her Majesty’s Courts Service.

I have previously linked to Michael Quinion on this subject. He writes of legal Latin being ‘swept away’, which seems a bit sweeping, so to speak.

I mention this because I don’t often use the word claimant to translate Kläger(in). My translations don’t just go to England, either. Do people who translate for England and the rest of the UK use claimant? Do translators for the EU and the European Court of Justice? I think maybe only sometimes. And I remember in 2000 or 2001 asking a British publisher client whether I was now to use claimant, and getting the answer ‘When it’s appropriate’, which suggested to me that the problem hadn’t even filtered through.

Comparative Legal Linguistics / Buch

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Professor Heikki E.S. Mattila of the University of Lapland has published a book on comparative legal linguistics that looks interesting and expensive. The amazon.com page lets you look inside and see the full table of contents and an extract. The publisher’s page is fairly long too, so I’ll quote from that here:

Contents
Foreword; Foreword to the Finnish original; Part 1 General Introduction: Legal language and legal linguistics; The concept of legal language; Genres of legal language; Legal linguistics as a discipline; The importance of legal-linguistic knowledge; Structure and content of this book. Part 2 Legal Language as a Language for Special Purposes: Functions of Legal Language: Importance of the theory of communication; Achieving justice; Transmission of legal messages; Strengthening the authority of the law; Strengthening lawyers’ team spirit; Linguistic policy; The cultural task of legal language. Part 3 Characteristics of Legal Language: Precision; Information (over)load; Universality and aloofness; Systemic character; Structure and formalism in legal texts; Frequency of initializations and acronyms; Sentence complexity and diversity of language elements; Archaism and solemnity; Proper use of legal language. Legal Terminology: Legal concepts; Characteristics of legal terminology; Formation of legal terminology. The Major Legal Languages: The Heritage of Legal Latin; The importance of Roman law; History of legal Latin; Latin in modern legal languages; The communication value of legal Latin; Dictionaries of legal Latin. Legal German: History of legal German; Characteristics of legal German; International importance of legal German. Legal French: History of legal French; Characteristics of legal French; International position today. Legal English: The common law system; Development of legal English; Characteristics of legal English; Legal English as a global language. Part 4 Conclusion:Lexical comprehension and research needs;changes in legal-linguistic dominance in the international arena; Terminological interaction between legal languages; Problems of lexical comprehension; The need for jurilinguistic research on legal institutions and concepts; Foreign terms and other expressions; Index.

(Via DORES, which has a new set of references out on publications on language and law)

Ken Adams on contract drafting / Verfassen von englischsprachigen Verträgen

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I mentioned Ken Adams’ book ‘A Manual of Style for Contract Drafting’ and an article by him on translating English language contracts in 2004.

Ken has a website which includes a blog and a list of articles with links to them. His latest blog entry introduces a New Law Review article by himself and Alan S. Kaye on the ambiguity of ‘and’ and ‘or’, one of those things that confuses us translators not only when we’re thinking about beziehungsweise.

Note also interesting discussions in the comments on blog entries.

Nugatory / Richtersprache

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A translator was wondering recently how to translate the word nugatory into German. A judge had used it, saying that it didn’t really matter whether a decision was made on appeal or not, since there would be no money to be got – the decision would be nugatory.

It’s typical of judges in English and in German to use this kind of word. I wonder if it’s used at all outside legal language. I decided to search at Bailii – the new judgments rather than the old ones. Some examples:

THE USE OF THE COMPLAINTS PROCEDURE UNDER ARTICLE 90 OF THE STAFF REGULATIONS IS NUGATORY WHERE A DECISION IS MADE BY A BODY SUCH AS A SELECTION BOARD FOR A COMPETITION , WHICH ADJUDICATES IN COMPLETE INDEPENDENCE AND WHOSE DECISIONS CANNOT BE AMENDED BY THE APPOINTING AUTHORITY . (ECJ 1981)

The second main ground for the application is that if matters are allowed to proceed next week then the appeal will be rendered nugatory. (Court of Appeal, 1996)

In such situations as Vafi, where a change in circumstance would render the substantive hearing nugatory, requiring the matter to go to substantive hearing before having the proceedings struck out would result in the parties incurring unnecessary additional costs. (Irish Law Reform Commission, 2003)

In our view, the Sheriff misdirected himself by not expressly taking all these matters into account when exercising his judgment as to whether or not the mere appearance of “bias” on his part was sufficient to render the first four days of the proof entirely nugatory and to necessitate a fresh start. (Court of Session, Scotland, 1998)

Here it seems quite often to relate to appeals. I also find legal dictionaries defining it as meaning ‘being without operative legal effect (held that such an interpretation would render the statute nugatory)’ (Merriam Webster). Things are often rendered nugatory. (‘He misdirected himself’ is another nice legal expression).

Muret-Sanders says ‘besonders juristisch: unwirksam, nichtig’. This won’t work for the appeal, though. I once found unbeachtlich being used in this way, but that won’t always work either.

Reported speech / Indirekte Rede

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(This was not reported speech at all – see the evidence and discussion in the comments. Back to the drawing-board!)

There’s a query on ProZ that I can’t help mentioning. It’s a quote from the judgment of a German court and the asker requests that it should be answered by native speakers of German. I think it’s not always easy for native speakers of German to understand the grammar of their language, unless they’ve taught it to foreigners.

Anyway, the sentence is ‘Durch das der Klage stattgebende Urteil stünde jedoch auch fest, dass das Arbeitsverhältnis mit dem in der BRD ansässigen Arbeitgeber beendet worden und auf einen Arbeitgeber übergegangen ist, an dessen Sitz die EG-Richtlinie 2001/23 EWG nicht gilt. Im Ergebnis stünde der Arbeitnehmer schutzlos dar.’ [MM italics]

The query relates to the meaning of the subjunctive here. This is a sentence typical of German judgments, where the subjunctive makes it clear to the reader that it’s indirect speech, and in English the past tense doesn’t, so it’s worth adding ‘the court held’ every so often, to make it clear this is a quotation of what the lower court said, not the opinion of the present court.

So what did the lower court say, in direct speech? It said ‘es steht jedoch fest’. So you could write ‘the court stated that the judgment in favour of the plaintiff made it clear’, or even, avoiding any backshifting of verbs, ‘according to the court, the judgment in favour of the plaintiff makes it clear’.

Most of the answers are variations on ‘would be clear’. Indirect speech is mentioned in an ‘agree’, but it isn’t really brought out.

Anyone who’s translated a few judgments will recognize this usage. For the use of the subjunctive in reported speech (the form ‘stehe es jedoch fest’ would also be possible), see the nice site on the German language, canoonet.