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AUGUST,1983.NO. 1

'CLARITY -a movement for the simplification of legal English

NEWSLETTERContributions to: John hu/ton, OlUrch Cottage. 7 OIurch Street, Oifton-upon-Dunsmol'e, RI/;:by, Warwicbhire CV2.1 OHP

THE BI RTH OF CLARITY

CLARITY is born. It was conceived in the correspondence columns of the Law Society's Gazette. There havebeen announcements of the birth in legal journals, national newspapers, Radio 4 and even the Australian press. Over200 letters of support have been received. Most of these have been from lawyers who already believe in the aims ofCLAR ITY. There are many more who don't. CLAR ITY's early childhood may be more of a struggle.

CLARITY'S AIM

The aim of CLAR ITY has been stated as the use ofgood clear English by the legal profession. It ishoped to achieve this aim by:- I

1. avoiding archaic, obscure and over-elaboratelanguage in legal work;

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2. drafting legal documents in English that is bothcertain in meaning and easily understandable;

• 3. exchanging ideas and precedents, not to befollowed slavishly but to give guidance inproducing good written and spoken legalEnglish; and

4. exerting a firm but responsible influence onthe style of legal English, with the hope ofachieving a change in fashion.

Those are the general intentions. Exactly how theyare carried out will depend on you. What's the bestway of exchanging precedents, for example? Andto what extent should call1paigning form part ofCLARITY's activities? Your views will be neededin deciding the early direction of CLARITY. Forthat reason, a questionnaire is sent with th is news­letter. Please complete it and send it back as soonas you can - together with your membershipsubscription (mentioned below).

MEMBERSHIP

Most of you who have written have stated (quiteclearly) that you want to join CLAR ITY. Othershave merely expressed interest or asked for furtherinformation. This newsletter is being sent to every­one who has responded - in the hope that you'llconfirm your membership without delay.

There will have to be a subscription to cover thecopying, stationery, printing and suchlike. Althoughit's difficult to assess future costs, an annual sub­scription of £5 should give us a reasonable workingcapital. But this could be waived for students (andout-of-work lawyers?). A bank account has beenopened and cheques should be made payable toCLARITY please.

Remember, membership of CLAR ITY is open tolawyers, those training to be lawyers and anyone elsein a position to influence the use of legal English.A list of members will be sent out with the nextnewsletter, with additions being included in laterissues.

PRECEDENTS

One of the most practical ways in which members ofCLARITY can help each other is by the exchangeof precedents. But this raises a number of questions:

Quality of Precedents

Who is to say whether a precedent submitted by amember is good or bad? Naturally, it is -for everylawyer to satisfy him- or herself that any precedentfollowed is good for its purpose. But it's conceivablethat a member will submit a precedent that ismanifestly unsuitable. It l11ay be immediatelyapparent, for example, that it includes unnecessarylegalese. Or that in the search for simplicity, someimportant case law has been overlooked. But who isto be the judge? One of the matters on whichmembers' views are needed is whether there should bea vetting system and, if so, what form it should take.

The Register

How should this operate? . There are variouspossibilities - a central register or simply a systemof exchange through this newsletter? Shouldprecedents be photocopied and distributed on requestor can anyone offer word processor space? And whatcharging system should be used? The views - andservices - of members are invited.

Copyright

Can a member using a precedent submitted byanother member be sure that there is no breach ofcopyright? This could be a risk where a form isoffered, for example, by a solicitor employed inindustry or commerce. It would seem prudent forany precedent sent in to be accompanied by anassurance that its use will not infringe any copyright.

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Negligence CLARITY FOR CLAIMANTS

Is there any possibility of a claim lying against thedrafter of a faulty precedent? If so, members couldbe discouraged from sharing the products of theirskills. It must be emphasised that anyone usinganother's precedent does 'so at his or her own risk.The ultimate responsibtlity for a document must liewith the one who prepares it.

David Lewis is a Forms Writer in the DHSS FormsUnit, whose task is to encourage the introduction ofgreater clarity in the Department's forms.

As part of a larger publication - the Good FormsGuide - the Unit has produced a Thesaurus ofpossible alternatives to some of the words andphrases that many people find difficult to under­stand. Mr Lewis has kindly sent a copy of theThesaurus to CLARITY. Here are a few examplesfrom it:-

CAN ANYON E HELP?

Joint TenancieslTenancies in Common

Can anyone help with a precedent, please?

I should be glad of some assistance with a common­place task which seems to be beyond my powers ofself-expression.

sonext tobe thereforput offstop; endhometrymake surerightapart fromfrom now onnowtellifwhether or not; even ifkeptneedtelldetailsletset; fixedbeforeif; as long asbuygetneedled)altered; newas long as; iflateryouthenaboutaboutaboutaboutaboutaboutabout

accordinglyadjacent toattendon behalf ofdeferdiscontinuedwellingendeavourensureentitlementexcludinghenceforthherebyinformin the event ofirrespective ofmaintainednecessitatenotifyparticularspermitprescribedprior toprovided thatpurchasein receipt ofrequire(d)revisedsubject tosubsequentlytenantthereafterconcerningin connection withrewith referencetowith regard 'toin relation toapproximately

Many of you must have favourites of your own. Whocan send in the most ingenious simplification of acommonly-used legal expression?

18 Queen Alexand ra Road,

••• ANb lit 's to/f.J/~~ J"r,4t1vtY:> ,VI1,,(?NIS#EJ> I /)1.s7E~P~RE.b,

srO,PpcD1 WHrret-/€(> ~

C<'>1.0t-(~cD TflE PfiR7\!OF THE ?REH/6ES

USURl..LY So 7-etRTebSINCE:. THE. .1'I9Y wE

/.vC,(?€ Hf},€RrE 1>

Richard Thomson,Salisbury SP2 9LN

How do I explain briefly and simply to a benejicialjoint tenant, firstly the difference between jointtenancy and tenancy in common, and secondly theeffect of severance?

My shortest effort in writing to date ran to somethinglike one and a half pages of· impenetrable prose. Ineed to improve on this, particularly for the benefitof matrimonial clients representing the non-businesshalf of the partnership; those men and women whohave always signed obediently between the pencilcrosses and asked no questions.

-I

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SNIPPETS

Here are a few snippets from the hundreds of lettersreceived:-

"I shall not easily forget the look on our town clerk'sface when I suggested the wording, 'at the end of thistime, all people and all equipment must be out'."Miss G.c. Collis, Swindon

"Legal 'gobbledegook' is ...... worse with the intro­duction of modern word processing techniques whichallow 224 word sentences to be summoned up atthe touch of a button and without the typists goingon strike."Andrew Clifton, Romford

"Lawyers ought to moderate their language not onlyin the writing of documents but also in court."Sarah Harman, Canterbu ry

"On behalf of The Solicitors' Law Stationery Societyplc, I would like to convey our support of your groupCLARITY."Sarah Harker, Product Research & DevelopmentOfficer

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'''Traditional legal drafting has changed surprisinglylittle from the old penny-a-word days and theprinciples may be summarised as:- use continuous narrative, with no punctuation;- sprinkle liberally with terms of art and suchtraditional archaisms as 'hereinafter' and 'aforesaid';- never use one word where three wi 11 do; inparticular repeat all complicated terms in full everytime they occur.The final rule is read through when finished and ifthere is any danger of it being intelligible to a non-lawyer, re-draft it." •K.A. Bulgin, Bromley

"Do you find that the language lacks a suitablepreposition for 'on the subject of'? You can use'about' or 'on' sometimes, but many people feel anirrestible need to write 'with respect to' or 're' ......any ideas?"Peter Douglas-Jones, Mumbles

"I see the plan is to circulate comprehensibleprecedents. It might be a salutary exercise to puttogether a separate file of the incomprehensibleve rsi ons."Alison Gorlov, Westminster

"In a draft Conveyance submitted to another firm ofsolicitors I used the phrase 'This Deed witnesses ..... .'The draft came back approved;' with the word'witnesses' altered to 'witnesseth'."G. V. Bull, London SE26

"I submitted for approval a. draft lease written inEnglish and it was returned with every punctuationmark carefully deleted."Mark Adler, East Molesey

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"Brevity is frequently confused with clarity. The twoare not necessarily synonymous ...... I would muchprefer 'immediately after the signing of this Agree­ment' to 'forthwith upon the signing hereof."Keith Lewington, Milton Keynes

"I have been befuddled by the terms of my latemother's will and am convinced that the trustees havebeen negligent ...... in explaining it all to me. I amapprehensive about approaching a new solicitor .......as I shall be pushed into more jungles of legalterminology."(Name withheld)

"I am the editor of Kelly's Draftsman and haveattempted to take some steps to improve the qual ityof English used in it whilst not departing radicallyfrom well known and established forms. I would beglad to consider taking this work further in futureeditions."R.W. Ramage, Stoke-on·Trent

"Has anyone suggested a means yet of curing one'scolleagues of writing things like 'I have pleasure inenclosing for signature by your goodself'?"A.J. Elliott, Warrington

"All best wishes for success in the aims of CLARITY- it is after my own heart."Lord Denning

INTERNATIONAL SECTION

"I suggest that the root of the problem ies in the factthat legal education, whether at University, Collegeof Law or in articles, does not recogn ise sufficientlythat lawyers are dealers in language (and problemsolvers). "Dr. S. Robinson, University of Queensland

"What we as professions have in common is theregrettable tendency to use antique and unintelligibleEnglish ..... I would think that Scots lawyers wouldbe delighted to join CLARITY. Our law may beScottish, but on the whole we speak English."William M. Millar, Editor, The Journal of the LawSociety of Scotland

"As the only English lawyer in the bank, I have aconstant battle to rid our English of a Germanicflavour! German lawyers seem even more reluctantthan English lawyers to write in short sentences."P.J. Condon, Frankfurt

"In the issue of the West Australian newspaper of17 June 19B3 reference was made to a group ofEnglish lawyers who are trying to 'beat a clear paththrough the thicket of impenetrable legal verbiage'."Peter Atkins, Perth, Western Australia

"I am a solicitor of the Supreme Court and also amember of the State Bar of Cal ifornia ...... I shouldlike to join CLARITY."Michael Oliver, Beverley Hills

GI FT 0 F AN ORANGE

When an ordinary man wants to give an orange toanother, he would merely say, "I give you thisorange." But when a lawyer does it, he says it thisway: "Know all men by these presents that I herebygive, grant, bargain, sell, release, convey, transfer, andquitclaim all my right title, interest, benefit, and usewhatever in, of, and concerning this chattel, other­wise known as an orange, or citrus orantium, togetherwith all the appurtenances thereto of skin, pulp, pip,rind, seeds, and juice for his own use and behalf, tohimself and his heirs in fee simple for.ever, free fromall liens, encumbrances, easements, limitations,restraints, or conditions whatsoever, any and all priordeeds, transfers or other documents whatsoever, nowor anywhere made to the contrary notwithstanding,with full power to bite, cut, suck, or otherwise eatthe said orange or to give away the same, with orwithout its skin, pulp, pip, rind, seeds, or juice."

Wisconsin Bar Bulletin, Feb. 1975.,

(Of course, the British version wouldn't have anypunctuation to confuse the issue!)

WHAT'S WRONG WITH "YOU"?

It's customary for legal agreements to be written inthe third person - "the tenant hereby covenants"etc. But the second person has its uses too. The"you" form is particularly useful, for example, incases where obl igations are imposed on a person whomay not have the benefit of legal advice. Inconsumer credit agreements, for instance, where itis especially important for the rights and obligationsto be clearly understood.

"The Conveyancer" has recf/ntly featured a precedentdrafted by solicitor, Robert Craig, who is one of thefounder-members of CLARITY. This is a hiringagreement for television apparatus and is written ina delightfully straightforward style. It includes suchexpressions as "If you object to the increase you mayreply in writing within two weeks from the date ofthe notice ......" and "Do not let anyone else get (ortry to get) legal rights over the Set".

One of the winners of last year's Plain EnglishAwards was Rugby Borough Council, whose standardform of tenancy agreement for small industrial unitsaddresses the tenant in the second person throughout.For example, "You may bring the tenancy to an endon the last day of any calendar month, provided yougive at least one month's written notice beforehand.You must send any such notice to ...... ". The unitswere intended for those starting off in business forthe first time and who might not be familiar with abusiness tenant's usual rights and obligations. It wasparticularly important that the tenancy agreementshould let tenants know precisely what was expectedof them.

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Where people or companies enter into agreements onequal terms, it will be better to refer to each of themin the third person using a simple definition device(not "hereinafter referred to as ......"). The secondperson form certainly won't be suitable in every case.But its use shouldn't be overlooked as an aid toclarity in documents.

PARKER TAKES TO THE WATERWAYS

Mr J.M. McKean will be well-known to many of youas a contributor and consultant to Parker's "ModernConveyancing Precedents" and principal contributorto "Modern Wills Precedents". As Solicitor toBritish Waterways Board, he has tried to continue thephilosophy of those publications.

The Board's new standard form lease is a splendidexample of the sort of comprehensive yet clear legaldrafting CLARITY is seeking to encourage. Thegrant clause, for example, is worded in a straight­forward style, with a sensible use of schedules toavoid the unwieldy type of paragraph commonlyfound in leases:-

1.1 The Board grant to the Tenant/s a lease of theproperty described in Schedule I Part 1 ("theProperty") for the term of years startingon 19B reserving a basic yearly rentascertained in accordance with Schedule 11.

1.2 The grant is made subject to:-

1.2.1 The matters set out in Sch~u le I Part 2.

1.2.2 The reservations set out in Schedule IPart 3.

And here are the repairing and yielding up provisions:

2.2.2 To [put and] keep in a good state of repaircleanliness and decoration the whole of theProperty [except ......

2.2.3 When this Lease ends to yield up to the Boardthe Property with all additions improvementsand fixtures in the state required by 2.2.2.having first (but only if required in writing bythe Board) removed any structures for whichpermission under the Town and CountryPlanning legislation may have been grantedfor a limited period only and such apparatusas the Board so requ ire all damage caused tothe Property by such removal being madegood by the Tenant/s.

And not a "said", "thereof" or "hereinafter" in sight!

This has been the first CLARITY newsletter.Now it's up to you. All contributions will bewelcome.

JW.