MODERN LEGAL DRAFTING

274 Pages·2007·2.17 MB·English

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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trate how obscure or outdated words, phrases and concepts can be rewritten,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

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Published in the United States of America by Cambridge University Press, New York
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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