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MODERN LEGAL DRAFTING PDF

274 Pages·2007·2.17 MB·English
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This page intentionally left blank MODERN LEGAL DRAFTING A Guide to Using Clearer Language Second Edition In the second edition of this highly regarded text, the authors show how and whytraditionallegallanguagehasdevelopedthepeculiarcharacteristicsthat make legal documents inaccessible to the end users. Incorporating recent research and international examples, the book provides a critical examina- tion of case law and the rules of interpretation. Detailed case studies illus- trate how obscure or outdated words, phrases and concepts can be rewritten, reworked or removed altogether – without compromising legal exactitude. In emphasising the benefits of plain language drafting, the focus is on clarity and accessibility. Particularly useful is the step-by-step guide to drafting in the modern style, using practical examples from four types of common legal documents: leases, company constitutions, wills and conveyances. Readers will gain an appreciation of the historical influences on drafting practice and the use of legal terminology. They will learn about the current moves to reform legal language; and they will receive clear instruction on how to make their writing clearer and their legal documents more useful to clients and colleagues. Modern Legal Drafting: A Guide to Using Clearer Language will benefit lawyers, law students, legislative drafters, and all who work in law-related fields. Peter Butt is Professor of Law and founding director of the Centre for Plain Language at the University of Sydney. Richard Castle is a former solicitor, currently working in New Zealand. MODERN LEGAL DRAFTING A Guide to Using Clearer Language Second Edition Peter Butt and Richard Castle CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK First published in print format ISBN-13 978-0-521-67452-2 ISBN-13 978-0-511-34908-9 © Peter Butt, Richard Castle 2006 Reproduction and Communication for other purposes Except as permitted under the Act (for example a fair dealing for the purposes of study, research, criticism or review) no part of this publication may be reproduced, stored in a retrieval system, communicated or transmitted in any form or by any means without prior written permission. All inquiries should be made to the publisher at the address above. 2006 Information on this title: www.cambridge.org/9780521674522 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. ISBN-10 0-511-34908-4 ISBN-10 0-521-67452-2 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org paperback eBook (EBL) eBook (EBL) paperback CONTENTS Acknowledgements page ix Acknowledgements, second edition xi List of Panels and Tables xii Table of Statutes and Subsidiary Legislation xiii Table of Cases xvii Introduction 1 Traditional legal language 1 Pressures for reform 2 What this book tries to do 4 1 What Influences the Legal Drafter 6 Introduction 6 Familiarity and habit 7 Conservatism 9 Fear of negligence claims 15 Means of production 17 Professional pressures 21 Straining to avoid ambiguity 22 The mixture of languages 23 Payment by length 31 Payment by time 36 The litigious environment 37 2 How Legal Documents are Interpreted 39 Overview 39 What judges have said about traditional legal drafting 40 v vi Contents The principles of legal interpretation 47 The two ‘golden rules’ of interpretation and drafting 61 Commercial or purposive interpretation 62 Importance of context 64 Modern restatement 66 Dangers in using precedent as an aid to interpretation 73 Interpreting plain language documents 73 3 The Move towards Modern English in Legal Drafting 76 Introduction 76 The United Kingdom 78 Australia 93 The United States 99 Canada 106 What judges have said about ‘plain English’ 109 4 Some Benefits of Drafting in Plain English 112 The meaning of ‘plain English’ 112 Increased efficiency and understanding 114 Fewer errors 118 Image of the legal profession 119 Marketing 121 Compliance with statutory requirements 121 Conclusion 126 5 What to Avoid when Drafting Modern Documents 127 Introduction 127 Wordiness and redundancy 128 Overuse of ‘shall’ 131 Obscure language 137 Unusual word order 138 Frequently litigated words and phrases 140 Foreign words and phrases 141 Long sense-bites 142 Legalese and jargon 144 Peculiar linguistic conventions 151 Nouns instead of verbs 153 Contents vii Overuse of the passive 153 Deeming 154 Definitions 155 Overuse of capitals 160 Provisos 163 Conclusion 166 6 How to Draft Modern Documents 167 Modern, standard English 167 Document structure 170 Layout and design 172 Lists 178 Short sense-bites 181 Punctuation 183 Definitions 187 Tables, plans and formulas 191 Notes and examples 198 Simplified outlines 199 ‘Shall’ and the modern document 200 Handling generality and vagueness 203 Syntactic ambiguity 207 Pronouns 208 Inclusive language 209 Problems with ‘and’, ‘or’ 211 Drafting in the present tense 215 Deeds 216 Amending documents formally 218 Standard forms 219 Conclusion 221 7 Using the Modern Style 222 Lease: how to bring it to an end if the property is damaged 222 Company memorandum of association: subsidiary objects clause 224 Will: attestation clause 225 Will: distribution in unequal shares 227 viii Contents New land obligations: buyer’s restrictive covenant 229 Conclusion 231 Further Reading 233 Index 235 ACKNOWLEDGEMENTS Extract from First Edition This book is the product of many years’ practice and research in the tech- niques of drafting legal documents in modern, standard English. We are grateful to many people for their contributions towards the ideas and experiences that have helped shape our views. Richard Castle would particularly like to thank: r the law librarian of the University of Exeter, and the librarians of the University of Plymouth and the College of St Mark and St John Plymouth for the use of their facilities r the staff of Devon public libraries for their unfailing helpfulness r colleagues on the drafting courses formerly run by the Centre for Commercial Law Studies, for their inspiration r Professor John Adams of Queen Mary & Westfield College London for his advice and guidance on early work which led to this book r his clients and colleagues in Plymouth who directly and indirectly pro- vided a good deal of the material which appears here r Wendy Castle for her support and untiring efforts in typing, retyping and retyping again many early drafts r Sarah, Emma and Ally for their indulgence and motivation during the years of research and writing. Peter Butt would particularly like to thank: r the librarian and staff of the law schools in the Universities of Sydney and Bristol r his students at the University of Sydney, who for a decade have provided inspiration and feedback in lecture courses on plain language drafting techniques r Marion Butt, for her efforts in typing the later drafts of the book. ix x Acknowledgements Both of us would also like to thank a number of colleagues who reviewed drafts of the manuscript, and whose enthusiastic support for the project was a great encouragement. They include Robert Eagleson (Australia), Mark Adler (England) and David Elliott (Canada). We gratefully acknowledge those who have given permission to repro- duce copyright material used in the book: Her Majesty’s Stationery Office; Australia and New Zealand Banking Group Limited; Wellington District Law Society’s Collection, Special Printed Collections, Alexander Turnbull Library, New Zealand; and VicRoads. Every effort has been made to trace and acknowledge copyright and we would be pleased to hear from those we have been unable to contact. Finally, we emphasise that this book is very much a joint undertaking. Although we worked separately for a long time on opposite sides of the world, the final product is the result of our labours together for some six years. We take joint and several responsibility for it – or rather, we take responsibility for it separately and together. Peter Butt Richard Castle ACKNOWLEDGEMENTS Second Edition Thissecondeditionincorporatesanumberofdevelopmentsinlegaldrafting that have arisen since the publication of the first edition. As with the first edition, we are grateful to many people for their contributions to the ideas and experiences that have helped shape our views. We would especially like to thank those who took the time to provide constructive comments on the first edition. These include the late Professor John Adams (United Kingdom), Hector Macdonald (Australia), and Chris- tine Mowat (Canada), all of whom wrote long and detailed comments for our consideration. Peter Butt would like to thank the Faculty of Law, University of Cambridge, where he wrote some of this edition. For part of that time, he was a Herbert Smith Fellow; for another part, he was a Visiting Fellow at Trinity College. Without this assistance it would not have been possible to complete the book, and to both entities we owe sincere thanks. Peter also owes special thanks to Professor Kevin Gray of Trinity College for his guidance and help in arranging the stay at Cambridge, and to both Kevin and his wife Susan for making the stay so enjoyable. Finally, Peter’s wife Lin helped type the manuscript and polish the prose. To her, we both owe sincere thanks. We gratefully acknowledge those who have given permission to repro- duce copyright material for use in this and the first edition. In this edition, they include Her Majesty’s Stationery Office, Australia and New Zealand Banking Group Ltd and VicRoads. Every effort has been made to trace and acknowledge copyright and we would be pleased to hear from any copyright holders we have been unable to trace. Peter Butt Richard Castle xi PANELS AND TABLES Panels 1 Charges register extract page 3 2 Handwritten conveyance 19 3 Making It Plain 89 4 Example of plain statutory drafting from New South Wales Conveyancing Act 100 5 New York plain English law 102 6 Extract from bank mortgage 143 7 Use of capitals to break up text 145 8 Historic use of capitals 161 9 Document layout 174 10 Regulatory signs 195 11 Example of flow chart from Australian Native Title Act 196 Tables 1 ‘Before’ and ‘after’ examples of US Federal Court Rules 106 2 Traditional and plain language legal clauses 114 3 Numbering systems 176 4 Use of a table in a contract 191 xii TABLE OF STATUTES AND SUBSIDIARY LEGISLATION Imperial Statute of Additions 1413, 147 Statute of Pleading 1362, 25 Statute of Provisions 1350–51, 65 England and Wales Administration of Justice Act 1982 s 17, 226 s 21, 70 Arbitration Act 1996, 92 s 5(2), 190–1 Capital Allowances Act 2001, 91 Conveyancing Act 1845, 34 Conveyancing Act 1881, 36 Fire and Rescue Services Act 2004, ss 19, 20, 32, 33, 156 Human Rights Act 1998, 201 Inquiries Act 2005, 189 Land Registration Act 2002, 220 Landlord and Tenant Act 1954, Part II, 222, 223, 224 Landlord and Tenant Act 1985, ss 8, 11, 49 Law of Property (Miscellaneous Provisions) Act 1994, 13 Law of Property Act 1925, 219 s 1(2), 9 s 44, 218 s 45, 218 s 52, 216 s 60, 9 xiii

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