Definition
Permission granted by a court authorizing a party or other person to take an action that would not be permissible without such authorization. The requirement of leave of court serves a gatekeeping function: it ensures judicial oversight before certain procedurally sensitive or potentially disruptive actions may proceed.
Common applications include seeking permission to file an amended pleading after a deadline has passed, to add a party to pending litigation, to file a document out of time, to sue a court-appointed receiver, to take an interlocutory appeal, or to assert multiple defenses where procedural rules would otherwise limit them. The court retains discretion to grant or deny leave, and the standard governing that discretion varies by context and rule.
Common Language
Modern common usage (Wiktionary): "Leave" in ordinary English means permission or authorization, particularly formal permission to be absent from duty or employment (as in "sick leave" or "parental leave").
Historical common usage (Webster's 1913): Webster's defined leave as "liberty granted by authority to do or forbear any act; especially, permission to be absent from duty or employment; as, a leave of absence."
The everyday sense of "leave" as a period of authorized absence from work — sick leave, military leave, parental leave — is entirely distinct from the procedural legal meaning. In law, leave of court is not a period of time off but an act of judicial permission. Researchers encountering "leave" in legal documents should resist the instinct to read it as referring to any employment or absence concept.
Common Confusion
Leave of court is sometimes confused with leave in the employment law context — particularly "protected leave" under statutes such as the Family and Medical Leave Act. These are unrelated concepts sharing only a word. In legal procedure, leave of court is a threshold permission; in labor and employment law, leave is an entitlement to time away from work. Context will almost always distinguish them, but the overlap in terminology can disorient researchers moving between procedural and employment law materials.
Why It Matters in Research
Researchers will encounter leave of court across virtually every procedural context in the Law Mind corpus — civil procedure, criminal procedure, appellate practice, and equity. Several navigational points deserve attention.
First, the phrase is procedurally load-bearing but often invisible. Older cases and treatises refer to leave of court without explaining the underlying rule that requires it, because that rule was understood as background. When a historical source says an action was taken "by leave of court" or "with leave," the researcher must identify which procedural requirement triggered the need for permission — the source rarely states it explicitly.
Second, the standard for granting or denying leave has evolved significantly. At common law and in early equity practice, leave was largely discretionary with little articulated standard. Modern procedural codes — particularly rules modeled on the Federal Rules of Civil Procedure — supply express standards for specific applications. Leave to amend pleadings, for example, now operates under a defined framework requiring courts to consider factors such as undue delay, prejudice, and futility. Earlier sources predate these standards and reflect a more open-ended judicial discretion.
Third, the statutory lineage matters. Bouvier's references the English Statute of Anne (4 Anne, c. 16, s. 4) as an early codified instance requiring leave for a defendant to plead multiple matters. Rapalje & Lawrence notes the English practice of "leave to move," a trial-stage permission mechanism reviewed by a divisional court. Researchers using English sources or pre-twentieth-century American materials will encounter these forms, which have no direct modern procedural equivalent in most American jurisdictions.
Fourth, leave of court in the context of suing a receiver — mentioned in Black's second edition with a New Jersey citation — reflects a now-obscure but historically significant doctrine protecting court-appointed officers from collateral litigation without judicial supervision. This doctrine persisted well into the twentieth century in some jurisdictions and appears frequently in equity and insolvency materials.
Historical Dictionary Support
The historical dictionaries converge cleanly on the core definition: permission from a court enabling an otherwise-impermissible action. Black's first and second editions track each other closely, with the second edition adding illustrative applications (amended pleadings, multiple pleas, suing a receiver) and the citation to Copperthwait v. Dummer, 18 N.J. Law 258 — a real New Jersey Supreme Court decision from the early nineteenth century. Bouvier's offers the most substantive historical grounding, anchoring the concept in the Statute of Anne and elaborating the multiple-pleas context in early American practice.
Rapalje & Lawrence is the most fragmentary of the four entries as captured in the source material, but it usefully distinguishes "leave of the court" as a statutory phrase with its own interpretive history and separately addresses the English "leave to move" practice — a procedural form that American sources tend to omit.
None of the historical dictionaries addresses the discretionary standards governing leave. Their definitions describe what leave of court is, not when courts should grant or withhold it. That gap is significant: researchers relying solely on historical dictionary definitions will have no guidance on how courts actually exercised this authority, which requires consulting contemporary practice manuals and case law.
Jurisdictional Note
Federal practice under the Federal Rules of Civil Procedure supplies explicit standards for leave in specific contexts — most prominently Rule 15 governing amendment of pleadings. State procedural systems vary considerably: some track the federal model closely, others retain older discretionary frameworks, and a few preserve specialized leave requirements with no federal analog. Researchers working in state courts should verify whether the applicable rules codify a standard or leave the matter to general judicial discretion.
Encyclopedia Cross-Reference
The Law Mind Tax Encyclopedia: Tax Court Appeals to Circuit Courts — relevant where leave requirements govern appellate procedure in tax litigation contexts.