the past clarity · belinda gibson and marco stella ... [email protected] slovakia ing. ján ......

ClarityNumber 56 November 2006

Journal of theinternational associationpromoting plain legal language

Editor in chief:Julie Clement

Guest editor for this issue:Peter Butt

In this issueThe past

The Rt Hon Lord RentonA retrospect for Clarity 5

Alec SamuelsPlain language in the UK 6

The present

Andie BeattyPlain language in Scottish legislation 10

Simon AdamykPlain legal language in the English courts 11

Alison PlouviezPlain language, the “Better Law-MakingCharter” and some UK developments 14

James KesslerPlain English revolution officially announced 17

Phil KnightClarity for South Africa’s credit consumers 19

Belinda Gibson and Marco StellaImplementing plain language at Mallesons 22

Susan D. KleimannKathryn Maloney SimondsRasika KrishnaEvolution of an easy-to-understandfinancial privacy notice 26

Two items from the US 32Christopher CoxImproving financial disclosure forindividual investors 32Legislative update: Plain language and governmentaccountability office regulation review 36

The future

Christoph HafnerUnderstanding barristers’ opinions:a discourse analytical perspective 37

Kathryn O’BrienPlain language: a survey by Sydney law students 40

Other articles

Lord Justice RixPlain language in legal agreements: is it safe? 43

Sarah CarrLinguistic lingo for lawyers—‘person’ and othergrammitical terms for personal pronoun formsin English 52

Peter ButtThe importance of punctuation 54

Robert EaglesonDrafting tips—recasting a document 55

Clarity and general news 60–64

2 Clarity 56 November 2006

Country representatives

AustraliaChristopher BalmfordCleardocs.comPO Box 2225Hawthorn VIC 312203 9818 0211 (fax 03 9818 0599)[email protected]

BangladeshA.K. Mohammad Hossain1188/1 E Shewrapara, Kafrul Dhaka02 7162881 (fax 02 7171536)[email protected]

BrazilDominic MinettLex English Language Services LtdaRua Humberto I, 298Bloco B, Sala 2, 2o andar, Vila MarianaSao Paulo, SP 04018-030011 5084 4613 (phone & fax)[email protected]

CanadaNicole FernbachJuricom5171 boul. DecarieMontreal, Quebec H3W 3C2514 845 4834 (fax 514 845 2055)[email protected]

ChileClaudia PobleteSenado de la RepublicaAvenida Pedro Montt sin NValparaiso032 [email protected]

FinlandAnu SajavaaraMinna Canthin katu 2400250 Helsinki09 42022280 (cell 40 7050939)[email protected]

FranceAnne WagnerDépartement DroitUniversité du Littoral Côte d’Opale21, rue Saint-Louis, BP 77462327 Boulogne sur Mer Cédex03 21 99 41 22 (fax 21 99 41 57)[email protected]

Hong KongJonathan Hugo9B Shan Kwong Court32 Shan Kwong RoadHappy Valley, Hong KongHong Kong SAR852 91053097 (fax 852 28166553)[email protected]

IsraelMyla Kaplan054 3132010 (fax 04 8110020)[email protected]

ItalyChristopher WilliamsVia Taranto 3370031 Andria (BA)0883 [email protected]

JapanKyal HillApartment 706, Presle Tamaishi4-15-28 Toshima, Kita-kuTokyo 114-000303 5390 1700 (phone & fax)[email protected]

MalaysiaJuprin Wong-AdamalDepartment of Human Resources Development1st Floor, Block A, Wisma MUIS88999 Kota Kinabalu, Sabah088 218722 ext. 199 (fax 088 211 554)[email protected]

MexicoSalomé Flores Sierra FranzoniSecretaria de la Funcion PublicaInsurgentes Sur 1971 Torre III Piso 5Col. Guadalupe InnDeleg. Álvaro Obregón01020 Mexico, D.F.1454-3000 ext. [email protected]

New ZealandRichard Castle148A Tinakori RoadThorndon, Wellington 601104 938 [email protected]

NigeriaDr. Tunde OpeibiDepartment of EnglishUniversity of LagosAkoka, Lagos01 5454891 3/[email protected]

PhilippinesVictor Eleazar4/F Unit C-2 Marvin Plaza Building2153 Chino Roces AvenueMakati City 120002 816 7673 (fax 02 816 7740)[email protected]

PortugalSandra Ramalhosa MartinsRua Escola do Exército 70 3°E1150-145 Lisbon93 [email protected]

SingaporeLei-Theng LimFaculty of LawNational University of SingaporeEu Ton Sen Building469G Bukit Timah Road, 2597766516 [email protected]

SlovakiaIng. Ján RendekDonnerova 29/3Bratislava 841 04905 356 [email protected]

South AfricaCandice BurtSimplifiedBox 1362Bedfordview 2008083 3806893 (fax 083 450 1585)[email protected]

SpainCristina GelpiUniversitat Pompeu FabraLa Rambla, 30-3208002 Barcelona935 422 244 (fax 935 421 617)[email protected]

Patrons The Rt Hon Sir Christopher Staughton and The Hon Justice Michael KirbyFounder John WaltonCommittee

President: Professor Joseph Kimble ([email protected])Members: Country Representatives plus Simon Adamyk, Mark Adler, Michèle Asprey, Peter Butt,

Sir Edward Caldwell, Annetta Cheek, Robert Eagleson, Nicole Fernbach, Jenny Gracie,Robert Lowe, John Pare, John Walton, Richard Woof.

(Continued on page 63)

Clarity 56 November 2006 3

This issueThis issue of Clarity comes to you fromAustralia. However, its contributors come toyou from a number of countries.

The issue is grouped around the theme of“plain language and the legal profession—the past, present and future”.

The past

As to the past, we publish several “retrospects”.One is from Lord David Renton, the chair-man of the UK Government committeeappointed in 1973 to enquire into the languageof legislation. The committee has come to beknown as the “Renton Committee”. Thatcommittee produced a report in 1975, “ThePreparation of Legislation”, which has cometo be known as the Renton Report. LordRenton’s retrospect tells of his life in the law,in politics, and in law reform.

The second retrospect is from Alec Samuels, along-time member of Clarity and well knownin the UK for his publications on many areasof law. He writes from his experience of thelegal profession, the courts and the judges,with incisive observations about the state ofplain language in the UK.

The present

Then we move to the present. A short articleby Andie Beatty, the Deputy Scottish Parlia-mentary Counsel, documents movementstowards plain language in Scottish legislation.Mr Beatty was instrumental in producing abooklet, released earlier this year by theOffice of Scottish Parliamentary Counsel,entitled Plain Language and Legislation.

Then, Clarity committee member, SimonAdamyk, gives his impressions of plainlanguage in the English Courts. Mr Adamykwrites from the perspective of a practisingbarrister at the English bar. To complementthis view from the bar, another Clarity member,Alison Plouviez, writes of the “Better Law-making Charter”, released earlier this year bythe Law Society of England and Wales. ThatSociety represents English and Welsh solicitors.A slightly sceptical note is then introduced byJames Kessler QC, a leading UK barrister,who writes of the Coroners Reform Bill 2006.The UK press has touted this Bill as “the firstBill to be published in plain English”—a claimMr Kessler clearly doubts.

An international associationpromoting plain legal languagewww.clarity-international.netPresidentProfessor Joseph [email protected]

Clarity … the journalPublished in May and November

Editor in chiefJulie ClementPO Box 13038Lansing, Michigan 48901Fax: 1 517 334 [email protected]

Guest editor for next issueChristopher Balmfordcleardocs.comP.O. Box 2225Hawthorn, Victoria [email protected]

Advertising ratesFull page: £150Smaller area: pro rataMinimum charge: £20Contact Joe Kimble, [email protected]

Copyright policyAuthors retain copyright in their articles. Anyonewanting to reproduce an article in whole or in partshould first obtain the author’s permission andshould acknowledge Clarity as the source.

If the Revised Rent payable on and from anyReview Date ha e relevant ReviewDate rent R payable at therate prev eed RevisedRent pa forthwithpay to differencebetwee f Rent inrespect e relevantReview ceeding theRent Date attainmentand rent pa spect ofsuch period tog latedRate on each installment of such diffe e

Clarity


Moving away from the UK, we then publisha piece by Phil Knight, another long timeClarity member and office holder, on theSouth African National Credit Act 2005. ThatAct requires certain documents to be “in theprescribed form” or, if no form is prescribed,“in plain language”. The Act then sets outdetailed criteria for determining whether adocument is in plain language. Phil Knightexplains the thinking behind this prescriptiveapproach to plain language.

Next, we travel to Australia. MallesonsStephen Jaques is one of Australia’s largestlaw firms and is well known for its leader-ship in plain legal language. (Incidentally, ithas also been a financial sponsor of Clarityover the years.) Two members of the firm,Belinda Gibson and Marco Stella, trace thedevelopment of plain language in their work-place. This will interest readers who are keento implement change in their own organisation.

Finally, we turn to the United States ofAmerica. We publish three pieces dealingwith developments in that country. The firstrelates the philosophy and methodologybehind a project to develop a plain language“privacy notice” for use in the financialindustry. The article traces the developmentof the notice through aims, testing, research,design, and prototype evolution. The secondpiece reproduces part of the testimony of thehead of the US Securities & Exchange Com-mission to a Senate Committee. It shows theSEC’s zeal in promoting plain language and

the enthusiasm and wisdom of its chair,Christopher Cox. The third piece is a legislativeupdate, summarising two recent US initiativesin plain language.

The future

We end with two articles on research devel-opments in plain language. One is by ChristophHafner, a linguist who specialises in lawyers’language. Mr Hafner teaches writing skills tolaw students and is undertaking a PhD onthe subject of the language of barristers. Thismay well be the first doctoral thesis everwritten on the language of barristers. Hisviews may come as something of a surprise—particularly to barristers.

The other article is by Kathryn O’Brien, aSydney University law student. Kathryn andseveral of her fellow students undertook asubstantial survey of law students, legal aca-demics and practising lawyers. The surveytested impressions about the use of plainlanguage in the academy and in practice.Kathryn concludes that Australian law schools,like their US counterparts, should provideproper instruction in plain language as anintegral part of law courses.

I hope that you enjoy this plain languagesmorgasbord.

Happy reading!

Peter ButtSydney, Australia

Clarity:electronic or paper?Every May and November, we publish Clarityin two forms: electronic (.pdf) and in print.The electronic version reaches you faster thanthe print version, which has to come throughpost from the U.S. Please tell our representativein your country how you want Claritydelivered to you.


The Rt Hon Lord Renton, PC, KBE, TD, QC

Lord Renton is known, by name at least, to manyClarity readers. He was chairman of a committeeappointed in 1973 to enquire into the language oflegislation. Its terms of reference began: “With aview to achieving greater simplicity and clarityin statute law …”. The committee, now generallyknown as “The Renton Committee”, handeddown its report in 1975 (The Preparation ofLegislation, Cmnd 6053; London: HMSO, 1975).The Report highlighted the complexities in thetraditional style of legislative drafting and recom-mended many changes.

In this retrospect, written for Clarity, Lord Rentonreflects on his life and the Report that bears hisname. Ed.

I am now 97. Until I reached that age I led avery active life as a lawyer, a parliamentarian,a soldier (throughout the six years of WorldWar II) and doing work for charities. As afamily man, I had a very happy life whichwas, however, spoiled by my dear wife’sdeath nearly 20 years ago. In that long andvaried life I could not have achieved all that Idid without clarity to guide me in all decisionsI had to make in the very varied life I had tolead in peace and war.

At an early age at school I was taught toavoid ambiguity, for it always caused confu-sion and obscured one’s intentions.

During my professional life as a barrister, inwhich I became a Queen’s Counsel at the ageof 45, it was vital that decisions and the waysthey were expressed were manifestly clearand unambiguous. It was for this reason thatI was called upon to assume responsibility aschairman or a member of various officialadvisory committees, including RoyalCommissions.

I was National Liberal MP for Huntingdon-shire from 1945 to 1979. During that time Iwas in the Conservative and National LiberalGovernment from 1955 until 1965, first for

two years as Parliamentary Secretary to theMinistry of Fuel and Power, and then in theHome Office for six and a half years withRab Butler as Home Secretary. As he was alsodeputy Prime Minister and Chairman of theParty, he had to delegate a large part of hisresponsibilities to me. That was why I becameMinister of State in 1963, and why afterleaving the Home Office in 1964 I was madea KBE.

When then I returned to practice as a QC, ittook nearly a year before my life as a leaderbecame really busy—but then it did so, and Ihad some very interesting and prosperouslong cases. Although I never wanted to be afull-time judge, I was very glad when I wasmade Recorder of Rochester from 1963–68and of Guildford 1968–71. Also before that Iwas made a Deputy-Chairman of QuarterSessions in Kent and in Essex.

During my years doing part-time judicialwork, there was only one appeal against mydecisions, and although it was upheld andresulted in a retrial, the appeal failed!

So much for my judicial work. Now I mustmention my ten and a half years in Govern-ment. The first two of them were spent asParliamentary Secretary to the Ministry ofFuel and Power, where I became responsiblefor health and safety in mines and quarries,as well as for production of coal, oil andother products. Then came my years as aHome Office Minister, which I have alreadydescribed.

I was a member of the House of Commonsfrom 1945 until 1979. In those days being aMember of Parliament was only a part-timeoccupation, for we were not paid well enoughfor it to be a full-time job. Therefore, exceptfor my years in the Government, I carried onmy legal practice: for nine years as a busyjunior barrister, and then as a Queen’s Counsel.In 1966, however, I gave up practice, and Iwas put on several Royal Commissions anddid other parliamentary work.

Having reached the age of 70, I ceased tostand for parliament and was made a peer—a member of the House of Lords—where Ialso led a very active life until well into mynineties. Then my health declined. I becameill and spent some time in hospital. Althoughmy health recovered, my faculties declined.However, I was able to attend the House ofLords, where I asked the occasional question

A retrospect

for Clarity


but ceased to make speeches or serve oncommittees.

Looking back on my active years in bothHouses, I must confess that leading Parliamen-tary Delegations to Morocco, Uganda, Australiaand Guyana gave me great interest and satis-faction. Each of these delegations containedmembers of all political parties, but it wasunusual for a member of any party to putforward a party prejudice when taking partin our activities in any country we werevisiting.

In 1971 Selwyn Lloyd was made Speaker ofthe House of Commons, and so he had toresign as a member of the Royal Commissionon the Constitution. I was appointed to fill hisplace. I was asked to advise whether thereshould be devolution for Scotland, Wales andNorthern Ireland. I was totally opposed tothat for Scotland and Wales—indeed, I wasthe only member of the Commission who wasagainst it—although I agreed that NorthernIreland should have self- government, and itdid so.

In 1973 the first official enquiry since 1870 toconsider how Acts of Parliament should bedrafted was appointed, and I was madeChairman of it. It was called the Committeeon the Preparation of Legislation. We had onit a number of experienced lawyers andparliamentarians. Its report became knownas “the Renton Report”. All political partieswere represented on the Committee. Ourconclusions were broadly unanimous, andthe Report was welcomed by both Houses ofParliament. However, the Parliamentarydraftsmen and the Civil Servants did notwelcome our recommendations, for it meantthat, instead of drafting legislation in variedways that they preferred, it would have to bedrafted in accordance with broad principleswhich we had defined. Therefore, althoughthose principles had been welcomed by theLords and the Commons, the Civil Servantsand Draftsmen carried on in their own way.The Lord Chancellor and the rest of weParliamentarians were simply ignored,except occasionally; and so our statutes havenot for the most part improved theirdrafting—and clarity has not been achievedto a great enough extent.

© The Rt Hon Lord Renton 2006

Alec Samuels

Alec Samuels was a founding member of Clarity.He is a UK Barrister and Justice of the Peace,and was formerly Reader in Law at the Universityof Southampton (UK). He has contributed manyarticles to legal journals on statute law, civilprocedure, property law, planning law, andmedical law. In this retrospect, written especiallyfor Clarity, he writes of the progress of plainlanguage in the UK. Ed.

The instructions from the Guest Editor ofClarity were to write about: “the progress (asyou see it) of the plain language movement inthe UK: how the solicitor’s arm of the profes-sion has (or has not) accepted plain language;the achievements as you see them to date; andthe problems ahead”.

Fairly clear instructions. As an invited authorfor Clarity, one is particularly conscious ofstyle of expression—of plain language.Looking at the Editor’s instructions, one longsentence might seem inelegant. Lord Denningwould have expressed himself in four or fiveshort sentences. However, these instructionsare in the form of an abstract, so perhaps onesentence is appropriate. But the use of phrasesin brackets ought surely to be avoided wherepossible. One wondered whether the colonwas correct: did it introduce the rest of thesentence, or did it merely represent a pause,less than a full stop but more than a semicolon?Then as to the “arm of the profession”, is itsingular or plural? Is one thinking of lots ofsolicitors collectively, plural; or the solicitor asopposed to the barrister, collectively, singular?Is or are the jury a collective singular or acollective plural? Perhaps it may dependupon whether one is seeking to describe thejury as an institution in the criminal justicesystem or a collection of people in the jurybox in the courtroom. Style and substancemust go together. Style is particularly impor-tant for Clarity readers. This Clarity author iscomposing this piece in longhand; there are

Plain languagein the UK


many manuscript corrections, and there willbe several drafts.

Progress

The progress of the plain language movementin the UK? Good in some respects, disap-pointing in others. Good in a much greaterawareness of the need for plain language thanin the past. Parliamentarians, judges, legalpractitioners and legal lecturers and authorsare constantly complaining about obscuritiesand ambiguities and complications in thelanguage of the law.

Government recognises the problem. All Billsare accompanied by explanatory notes. Mostnew statutes are accompanied by depart-mental advice saying what they are all about.Statutory instruments are accompanied bysimple summaries. The building regulationsare accompanied by a plain English version.

Good law teaching is constantly insistingupon plain language. The national educationsystem places a heavy emphasis upon literacy.Employers demand a good measure of literacyfrom their employees, especially new recruits.Reports are expected to carry an executivesummary.

Organisations such as Clarity, the Statute LawSociety and the Society of Legal Scholars areconstantly promoting good examples of plainlanguage. Increasingly, institutions in boththe public and private sector instruct specialistsin plain language to draft or redraft codesand rules and regulations.

Further, the multiplicity of courts, tribunals,panels and committees in contemporary UK,many composed wholly or largely of non-lawyers, create the need and the demand foradvocates to put their case simply and clearlyand persuasively in plain language. One of thestrengths of the jury system is undoubtedlythat it compels lawyers and experts to expressthemselves in a way intelligible to the non-lawyer—at least, the reasonably intelligentnon-lawyer. In civil cases involving technicalmatters, retired judges are hired to conduct“dummy runs” to test and improve coherenceand intelligibility.

Unfortunately there has also been some lackof progress—indeed, some retrograde move-ment. Government is obsessed with controland regulation, often in excessive detail.Legislation and statutory instruments pour

out, seeking to cover every conceivablesituation, encouraging complication andunintelligibility to set in. A better system wouldleave the interpretation and implementationof a plainly expressed principle to the discre-tion of the judge or other decision maker,allowing for common sense, pragmatism,flexibility, and justice. In contemporary bureau-cratic society, life has become so complicated—the form-filling syndrome—that there is notime to stop and to think and to take a calm,reasoned decision. As we all know, if only westop to think about it, the key to plain lan-guage is simply to think before speaking orwriting. Sloppy thinking leads to sloppyexpression.

Information technology has brought enormousbenefits, but it has also hindered the progressof plain language. The ease and rapidity ofmeans of communication have led to non-reflective expression. Composition on thekeyboard can lead to verbosity. When writinga letter by hand, one carefully ponders whatto say; but winging off an e-mail seems torequire little thought, just the essence of theinstant message, however expressed. Thecomputer has created its own language, asort of bastard technical language of its own,malevolently infiltrating and corrupting theQueen’s English—Shakespeare’s English—one of the greatest gifts contributed to civili-sation. Similarly, the mobile phone and itstext message has led to abbreviations andshort cuts, an unworthy substitute for plainlanguage.

In the television age people lose the readinghabit. Intelligently reading good quality proseimproves the reader’s quality of expression.Constant exposure to the journalism andsuperficial language of the media erodes thepower of expressing oneself in plain language.

The solicitor

The contemporary UK solicitor is an educatedperson for whom language is a principal toolfor work. As general practitioners dealingwith lay clients, solicitors need to expressthemselves simply and clearly. In the natureof things, solicitors have to be careful andaccurate. They must negotiate and settledisputes, often involving large sums of money.They must draft contracts and wills, importantdocuments to provide for the future. To dothis, they often prefer traditional precedents,


tried and tested, called onto the screen fromthe data base at the click of the mouse, but notalways expressed in the plain language thatsome of us might wish.

However, the solicitor is subject to manypressures. Acting for parties in disputes inthe context of our bureaucratic society can bevery demanding. Mastering the multiplicityof unintelligible laws and regulations is noeasy task; and negotiating some sort of com-promise or settlement is difficult enough initself, without having to worry about theniceties of plain language. If the going getsreally difficult, then the matter has to go tocounsel—the consultant specialist barrister—expert in drafting and advocating, able togive the necessary time, experience andlearning to the problem.

Judges

Judges should be masters of the exposition ofthe law in near perfect language. The remark-able contribution of Lord Denning, the mostoutstanding UK judge of the twentiethcentury, lay principally in his extraordinarypower of simple yet compelling language—significant not only for the message of justicebut for the beauty and convincing quality ofthe language. In his book The Discipline ofLaw (Butterworths 1979), Lord Denning hasa chapter “Command of Language” (pp 1–8).He says that language is the vehicle of thought.Obscurity in thought inexorably leads toobscurity in language. Read the great authors,he says: Shakespeare, Macaulay, Carlyle,Milton. Lord Denning extensively cites anddiscusses his favourite authors, in Leaves frommy Library (Butterworths, 1986). He givesadvice drawn from his own experience: thinkof the context in which words are to be used;write positively and definitely; draft andredraft. In yet another book, The ClosingChapter (Butterworths, 1983), Lord Denningincludes a chapter on “Plain English” (pp57–65). He says that command of language isthe key to success in life. His advice: Think ofthe hearer or reader, not of oneself; split thetext into paragraphs; use short sentences;avoid terms of art and long words (“multi-syllabic jargon and verbal distortion”); readand re-read the draft; and for examples,study Winston Churchill’s wartime speeches.

The biographer Edmund Heward, in his bookLord Denning: A Biography (2nd ed, Barry Rose1997), wrote of Lord Denning’s prose style(pp 189–192). He described the style as stac-cato, taut, concrete, vigorous and clear, vividand brief; with the apt word and incisivephrase; telling a story. But some would saythat Lord Denning’s style was better suited tothe spoken word, the spoken judgment, thanthe written word, because the staccato stylecan lack rhythm and grace.

Reading the judgments of the leading contem-porary judges, one is struck by the intellectualcommand but disappointed at the prolixityand complication, in part perhaps requiredby the legislative subject-matter which judgesmust interpret and apply. I have writtenabout this in “Those multiple long judgments”,Alec Samuels (2005) 24 CJQ 279–287.

Oratory

There was once a debate about who was thegreatest orator. The choice came down toCicero and Demosthenes. The issue wasresolved. When Cicero spoke, everyone saidwhat a wonderful speaker he was; but whenDemosthenes spoke, everyone said “let’smarch!”

House of Lords and plain English

It is interesting to look at recent cases in theHouse of Lords, the highest court in theUnited Kingdom, to see how far the judgeshave had to grapple with problems of “plainEnglish”, problems usually arising from legis-lation, including today the European Conventionon Human Rights. Here is a selection of recentcases:

• In the course of a robbery, A concealed hishand under his jacket and used his fingersto give the impression that he was in pos-session of a gun. Was A guilty of possessingan imitation firearm? Held, no—in fact, Awas not in possession of anything. R vBentham [2005] UKHL 18; [2005] 1 WLR1057.

• A statute proscribed membership of the“Irish Republican Army”. B belonged to the“Real Irish Republican Army”. Held, in thelight of history and the whole of the legis-lation, D was plainly covered. R v Z(Attorney-General for Northern Ireland’sReference) [2005] UKHL 35; [2005] 2 AC 645.


• If C is convicted of a crime, but the convictionis later quashed, has there been a “miscarriageof justice” and is C eligible to claim compen-sation? Although everyone is presumedinnocent until proved guilty, C has not suf-fered a miscarriage of justice if the properprocess for trial was followed and he wassuccessful on appeal, or if despite an errorof process and delay in rectifying the situa-tion, the court has not acknowledged C tobe clearly innocent. R (Mullen) v Secretary ofState for Home Department [2004] UKHL 18;[2005] 1 AC 1.

• Under legislation, the Secretary of Statecould detain an illegal immigrant pendingremoval. For how long, since no period wasprescribed? Held, not indefinitely. R (Khadir)v Secretary of State for Home Affairs [2005]UKHL 39; [2006] 1 AC 207.

• Legislation said that the Secretary of Statecould withdraw support from an illegalimmigrant. Did this mean that the illegalimmigrant could be left destitute? No, he orshe must be entitled to support “to keepbody and soul together”. R (Limbuela) vSecretary of State for the Home Department[2005] UKHL 66; [2006) 1 AC 396. But anillegal immigrant may be deported even ifunwell and facing inferior medical treat-ment in his or her own country. N v Secretaryof State for the Home Department [2005]UKHL 31; [2005] 2 AC 296.

• A person still in his own country, a foreigncountry, claimed to be a “refugee” but wasrefused entry into the UK under a pre-clearance system operated in the foreigncountry. Can a person be a “refugee” whilststill in their own country, before they haveever set foot in the UK? Held, yes, they maysuffer the requisite degree of persecution,and the relevant refugee laws apply to them.Regina (European Roma Rights Centre) vImmigration Officer at Prague Airport [2004]UKHL; [2005] 2 AC 1.

• The phrase “habitual residence” appearsfrequently in legislation, especially in familylaw. Can an illegal immigrant, who mayhave been in the relevant country for quitesome time, claim habitual residence? Yes, ifthe facts so justify, for the purpose of thephrase in the law is to establish whichcountry and which court have jurisdiction.Mark v Mark [2005] UKHL 42; [2006] 1 AC98.

• Air carriers are liable for an “accident”. Apassenger suffered deep vein thrombosisDVT, caused by cramped conditions, shortageof oxygen, low air pressure, and high temp-erature; no warning was given. Held, notan “accident”—the situation was normal.Deep Vein Thrombosis and Air Travel GroupLitigation [2005] UKHL 72.

Achievements

The greatest achievement of the plain Englishmovement is probably the very fact of themovement’s existence, and the general aware-ness of the problem and possible solutionswhich it has so successfully engendered.English has more and more become theinternational language—in politics anddiplomacy and commerce and literature. Thisrequires people whose first language is notEnglish to use English. The need for simplicityand clarity has become ever more necessaryand obvious.

Problems

Problems of inter-communication will alwaysbe with us. Paradoxically, as English increas-ingly becomes the international language, sothe increasing diversity of English itself maycreate problems for the future. The Englishspoken in England, the USA, Canada,Australia and New Zealand, South Africa,and in many other parts of the world, is oftenmarkedly different, and not only in accent.This could become a disintegrating element.Bureaucracy and authoritarianism are ofteninimical to the use of plain language. And, asI have already mentioned, modern technology,for all its benefits, is undermining plain Englishby encouraging the use of jargon of all kinds.But despite all of this: may the plain Englishmovement continue to flourish.

© A Samuels 2006


Andie Beatty

Elsewhere in this issue, we note developments inplain legal language in England. North of theborder, in Scotland, changes are also afoot.

Earlier this year, the Office of the ScottishParliamentary Counsel (OSPC), which draftslegislation for the newly devolved ScottishParliament, released a booklet entitled PlainLanguage and Legislation. The booklet arguesthe case for plain language in Scottish legislation.It also contains a useful overview of the mainplain-language techniques, as well as a convenientbibliography of recently published material onplain language generally.

The booklet can be downloaded free of charge, athttp://www.scotland.gov.uk/ospc

The booklet was largely the work of Claritymember Andy Beattie, Deputy Scottish Parlia-mentary Counsel. Mr Beattie has produced thefollowing short comment on the booklet for Clarityreaders. Ed.

The Plain Language and LegislationBooklet—some background

Clarity members will be interested to note thenew booklet on Plain Language and Legislationwritten by the Office of the Scottish Parlia-mentary Counsel (OPSC).

OSPC drafts Scottish Parliamentary Bills forthe Scottish Executive, the devolved govern-ment for Scotland, which was established in1999 following the first elections to the ScottishParliament. OSPC is also responsible for thedrafting of Scottish aspects of UK GovernmentBills at Westminster.

OSPC was also established at the time ofdevolution and was staffed initially by parlia-mentary counsel from the Lord Advocate’sDepartment (which, before devolution, waslocated in London and drafted Scottish legis-lation for the UK Government). Since thenthe office has doubled in size in order to deal

with the increased demand for Scottish-specific legislation.

The coalition government returned at the firstelections continued after the second ScottishParliamentary elections in 2003 under theauspices of a partnership agreement. Thisagreement included a commitment to ask theScottish Law Commission to “investigatemethods by which legislation can be publishedin plain English”.

OPSC also drafts legislation for the ScottishLaw Commission, so the carrying out of theinvestigation needed to fulfil the partnershipcommitment naturally fell to it. The investi-gation culminated with the booklet’s publicationin March 2006.

The booklet explores some of the historicalconnections linking plain language withlegislation, investigates strides taken acrossthe globe to modernise legislative style andgives examples of plain language draftingtechniques. Although pitched at a generalaudience, the booklet does contain someinteresting reading for those with a morespecialised interest in modern legislativedrafting.

The booklet is available on OSPC’s website, athttp://www.scotland.gov.uk/ospc

© A Beatty 2006

Plain language in

Scottish legislation


Simon Adamyk

Introduction

The use of language in civil proceedings haschanged considerably since I was first calledto the Bar in England some 15 years ago. Thechanges which have taken place have, in myview, been for the better. There are of courseother improvements which could usefully bemade, but campaigners for change in thelegal profession usually have to contentthemselves with a geological timescale forany change (if the change comes at all) and Ifor one have welcomed the changes withinthe last few years.

I have noticed changes at all stages of theprogress of a case, right from the initialcontact with clients through to judgments inCourt, whether at trial or an appeal. I take acloser look at some of these changes below.

Client care letters

The initial contact between a client and hisor her solicitor is usually accompanied by aclient care letter which the solicitor is profes-sionally obliged to send to the client. As abarrister, I do not have any hand in writingthose letters, but the ones I have seen havebeen clearly and attractively written, whetherthey have been sent to an individual (whomay be dealing with a solicitor for the firsttime) or to the legal department of a largecompany. In each case, the tone is friendlyand approachable, and often has a goodselection of sub-headings (one of my favouritetechniques for trying to present informationclearly). I don’t get to read the client careletters in all of my cases but I always read themwhen they happen to be included in my pa-pers, and I haven’t yet come across one whichI thought was badly drafted. If I were a layclient, I can’t help but think that I would findsuch a letter reassuring and encouraging to me(whether rightly or wrongly!) that I wasn’t go-ing to be barraged with gobbledegook later on.

Party-party correspondence

The next stage of the case is usually thecorrespondence—sometimes protracted—between each party’s solicitors. Interestingly,despite the great decrease in the use of Latinin the legal process (at least in England andWales), in my experience this correspondenceis still usually referred to as “inter partes”correspondence, although the English equiv-alents (“party-party correspondence” or perhapseven “correspondence between the parties”) arealso regularly used in Court. It is probably inthe area of party-party correspondence that Ihave seen the greatest changes in the use oflanguage. In the ‘old days’, correspondencebetween the parties was occasionally seen bysome practitioners as an opportunity to adoptas forceful a tone as possible, reminding theother side at every turn what a rubbish casethey had and how they were bound to lose attrial, and on occasions adopting a stridenttone which sought to intimidate rather thanelucidate.

That type of correspondence is on the wane.The fundamental alterations in civil procedurewhich have come into force in the last fewyears in England and Wales in the shape ofthe Civil Procedure Rules (“CPR”)1 haveencouraged, and even required, a much morefrank and detailed exchange of informationbetween the parties. This includes the stageeven before a claim has been issued, and isperhaps especially visible at this stage. The“pre-action protocols” embodied in the CPRinclude detailed requirements for the type ofinformation which needs to be exchangedbetween the parties, and when. There arespecific protocols which are tailor-made forspecific types of dispute2. In cases not coveredby any specific protocol, the Court expectsthe parties to act reasonably in exchanginginformation and documents relevant to theclaim and generally in trying to avoid thenecessity for the start of proceedings3. Theparties to a potential dispute are required tofollow a reasonable procedure, suitable to theirparticular circumstances, which is intendedto avoid litigation, and to exchange details ofthe claim4. Failing to comply with these typesof requirements can lead to adverse costsconsequences, among other things, andpractitioners and parties have to take thesethings seriously. If the Court does not considerthat the relevant facts and arguments havebeen clearly and effectively conveyed in the

Plain legal language

in the English courts


correspondence, that can place the partywhose correspondence it is at a disadvantage.Happily, these considerations tend to lead toa virtuous circle, because as soon as one partychooses to express itself in a clear, measuredtone, the other party can come across badlyin Court if its own correspondence is phrasedin a less ‘user-friendly’ manner. Whatever thereasons for it—whether the theory I havesuggested above or some other factors—therehas in my experience been a notable improve-ment in the clarity with which the party-partycorrespondence is expressed.

Judgments

The language used in judgments has alsobecome more approachable in recent years.This has been achieved in a number of ways.

For one thing, Judges are now discouragedfrom using Latin in their judgments5. Thisfinds its roots in Lord Woolf’s Final Report tothe Lord Chancellor on the civil justice systemin England and Wales (July 1996)6, which setout as one of the guiding principles that “Thesystem should ... (e) be understandable to thosewho use it”. There are widespread referencesin the decided cases to Lord Woolf’s disap-proval of the use of Latin in legal proceedings7

and on the whole Judges seem to be takingnote of it8. This change seems to have perme-ated throughout civil proceedings. The CPRcontain very few Latin tags, the draftershaving chosen to replace them with Englishequivalents or in some cases with entirelynew English terminology9. Her Majesty’sCourts Service website contains an interestingglossary of Latin terms and their Englishequivalents10. Anecdotal evidence suggeststhat different practitioners are encounteringdifferent levels of enthusiasm among theJudges for the move away from Latin termin-ology, but there is no doubt in my mind thatthe ethos of moving away from the use ofLatin in legal proceedings has a firm footholdin this country11.

A further development which I find particu-larly helpful is the significant reduction in thenumber of decisions of the Court of Appealwhich involve a reasoned judgment beinghanded by more than one Judge. For obviousreasons, this does not occur at trial level(where there is only one Judge in any case),but in the past I have had to face the time-consuming task of reading two or in somecases three different judgments from the two

or three members of the Court of Appealpanel, who may be saying the same thing,or slightly different things, or completelydifferent things—there was no way to tellwithout reading each of the judgments indetail. It is now a breath of fresh air to beable to read at the beginning of the judgmentthat this is “the judgment of the Court” (thatis to say, the united view of all members ofthe panel) or to reach the end of the judgmentto find that the other members of the panelsimply add “I agree” or words to that effect12.Naturally, there are still times when one mem-ber of the panel wishes to add comments ofhis or her own in order to make a particularpoint or place the emphasis in a differentway, and there are also occasions where oneJudge dissents. But these now seem to be theexception rather than the rule.

Finally, many judgment at all levels of thehierarchy now seem to incorporate sub-headings. This sounds like a simple touch,but I myself find it to be tremendously helpful.The vast majority of legal research exercisesthat I encounter involve reading a number ofdifferent judgments. Some of those judgmentscan be quite long and usually there are onlyone or two issues in a judgment which arerelevant to the task in hand. To be able to skipstraight to the relevant sections is a greattime-saver. It also lends a pleasing—andinstantly visible—degree of structure to thejudgment.

Conclusions

I have touched on only a few aspects of thedevelopment of plain legal language in theEnglish courts in recent years. No doubtother practitioners have had different experi-ences, but for my own part I have welcomedthe changes that I have seen. An importantpart of my job involves assisting lay clients tounderstand exactly what is going on in theirlitigation, and the developments which I haveoutlined above all help to make that part ofmy job a little easier.

© S Adamyk 2006

Endnotes1 The CPR can be found on the web at

www.dca.gov.uk/civil/procrules_fin/menus/rules.htm.

2 There are currently eight such specific pre-actionprotocols: construction and engineering disputes,defamation, personal injury claims, clinical


disputes, professional negligence, judicial review,disease and illness claims, and housing disrepaircases (see para. 5.1 of the Practice Direction—Protocols, at www.dca.gov.uk/civil/procrules_fin/contents/practice_directions/pd_protocol.htm). Additional pre-action protocolsare added from time to time.

3 Para. 4.1 of the Practice Direction—Protocols.4 Paras. 4.2 to 4.6 of the Practice Direction—

Protocols.5 Even though this discouragement is well known

among lawyers in England, actually identifyingthe precise location of this edict is quite difficult.There is reference to it in Lord Woolf’s speech“Current Challenges in Judging” delivered on 10th

April 2003 to the 5th Worldwide Common LawJudiciary Conference in Sydney, Australia, whereLord Woolf said, “As a symbol of what was required Iurged, as part of our reforms, the abolition of Latin andthe adoption of simple English when rewriting ourRules of Procedure and, indeed, in our courts.” Seewww.judiciary.gov.uk/publications_media/speeches/pre_2004/lcj100403.htm.

6 “Access to Justice”, Final Report, para. 1(e), SectionI (www.dca.gov.uk/civil/final/index.htm).

7 See, for example, the cases cited by RoderickMunday in his articles “Does Latin Impede LegalUnderstanding?” (2000) 164 JP 995, 16 December2000, and “Lawyers and Latin” (2004) 168 JP 775, 2October 2004.

8 There are exceptions, of course. One notableexception is Lord Woolf’s own use of theexpression “inter alia” in Ashworth HospitalAuthority v MGN Ltd. [2002] UKHL 29, [2002] 1WLR 2033, at para. 48.

9 For example, the replacement of “writ” with“claim form”, “subpoena” with “witness summons”,“ex parte” with “without notice”, “garnishee order”with “third party debt order”, “mandamus” with“mandatory order”, “prohibition” with “prohibitingorder”, “certiorari” with “quashing order”, to namebut a few.

10 www.hmcourts-service.gov.uk/infoabout/glossary/latin.htm.

11 See too the Report of the First Phase of theEnforcement Review, July 2000, para. 227,www.dca.gov.uk/enforcement/firstphasefr.htm:“The form should be based on the current county courtrequest and written in plain English so as to removeLatin phrases presently used in the High Court requestfor Writ of Fieri Facias.”

12 Sometimes this approach can go amusinglywrong. See, for example, the end of the Court ofAppeal judgment in Windeatt v Windeatt (No. 2)[1962] 2 WLR 1056 at p. 1066: “Danckwerts LJ: ‘Iagree with the comprehensive judgment that hasbeen delivered, and I have nothing useful to add.’Ormerod LJ: ‘I agree.’”

Simon Adamyk is a barrister in private practice,practising from New Square Chambers in London. He is acommittee member of Clarity.

Simon was called to the Bar of England and Wales in1991 and to the Bar of the Eastern Caribbean SupremeCourt in the territory of the British Virgin Islands in2006. He specialises in Chancery/commercial litigationand advisory work, and many of his cases involveinternational issues. He holds an M.A. in law fromDowning College, Cambridge, as well as an LL.M. fromHarvard Law School. He is Treasurer of and serves on thecommittee of the Chancery Bar Association in England,and he also serves on the Chancery Division CourtUsers’ Committee.

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Alison Plouviez

“Too often legislation is hard to use, under-stand and apply”. Clarity readers may havesome sympathy with this remark. It comesfrom the document introducing the BetterLaw-making Charter published in 2005 by theLaw Society of England and Wales.

The Charter sets out ten straightforwardproposals which could significantly improvethe way legislation is made at Westminster,without a huge investment of money or time.It highlights the need to make new law easierto understand and use, and to take advantageof IT and the internet. For example, Point 8says, “Legislative texts should be producedusing plain language and modern, accessiblestructure, layout and design, whether on theinternet or paper.” (See page 16).

How the Charter came about

The Charter is part of the Society’s BetterLaw-making Programme. Through this, theSociety is calling for improvements in the waylegislation is made, written, implemented andreviewed. Accessibility also matters—frompreliminary and consultation stages to publi-cation, tracing and implementation of thenew measure.

As a representative body, the Law Societyfrequently comments on individual Bills andStatutory Instruments (SIs), often on practicalpoints rather than the underlying policy. Overthe years, across many legislative topics, thesame problems tended to reappear—such asnew measures not dovetailing well withexisting ones, or too much essential detailbeing left to SIs. So the Better Law-makingProgramme was set up, to address problemsin the way the legislation comes into existenceand is implemented, whatever its subject-matter. All political parties are being encour-aged to make a commitment to examine andimprove the law-making process, so that newlegislation is:

• democratic—based on comprehensivepublic consultation and thoroughparliamentary scrutiny;

• usable and accessible—clear in languageand layout, easy to find and use;

• well thought-out—carefully implemented,workable in practice, and later reviewed foreffectiveness.

Background to the Charter

The document accompanying the Charterargues that improving the legislative processcould save time, money, effort and sometimesdistress. It broadly groups the difficultiesposed by legislation into three problem areas:(a) content; (b) structure and form; and (c)access to the law once made.

Content problems arise from obstacles suchas ambiguity. These, and problems of formand structure—such as unnecessarily compli-cated organisational approaches—are all toofamiliar. Legislation on paper also lackseveryday aids to document navigation, suchas an index.

Other problems of access involve simplyfinding the law and assessing its currentstatus. All UK statutes appear, even on theofficial government publications website, intheir form “as originally passed by the UKParliament” (see http://www.opsi.gov.uk/acts.htm). So whether a section is in force ornot, or has been repealed or amended, is notclear on the Act’s face.

Another kind of access problem is the needat times to be able to trace the history of legis-lation and the course of court decisions on itsmeaning. Lord Nicholls of Birkenhead com-mented in a 2004 case:

“Unhappily the law in this country on[compulsory purchase] is fraught withcomplexity and obscurity. To understandthe present state of the law it is necessaryto go back 150 years to the Lands Clauses

Plain language, the “Better Law-Making

Charter” and some UK developments


Consolidation Act 1845. From there a pathmust be traced, not always easily, throughpiecemeal development of the law by judi-cial exposition and statutory provision. Someof the more recent statutory provisionsdefy ready comprehension.”

(Waters v. Welsh Development Agency [2004]UKHL 19, paras 1 and 2. The judgment isavailable at http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm?).

Other calls for change

In the last few years, several organisationshave looked critically at the way Parliamentworks and at its output. Commentaries havebeen published by such bodies as the Houseof Commons Modernisation Committee andthe House of Lords Constitution Committee,the Hansard Society and the cross-partyParliament First Group. The ModernisationCommittee is currently looking at the legis-lative process (see http://www.parliament.uk/parliamentary_committees/select_committee_on_modernisation_of_the_house_of_commons.cfm).The Law Commission for England and Waleshas now published a consultation paper onpost-legislative scrutiny (see Charter Point 4,on page 16) and how it might work. A reportis in preparation (see http://www.lawcom.gov.uk/post_leg_scrutiny.htm). And a lot of workis going into feedback and impact assessment(Charter Points 1 and 3). Both are improving.For example, the effect of proposals (such asfor a new offence) on the legal aid budget andand on the courts is now specifically assessed.

Hence, the Charter came into being against abackground of existing dissatisfaction withcertain aspects of the legislative process, anda climate of gradual change. It reflects andsupports the views of many of those who arekeen to see improvement in the current system.

Recent UK plain language developments

In the context of the climate for change,readers may be interested to hear of tworecent developments in the United Kingdom:the Coroners’ Bill, and developments inScottish legislative drafting concerns.

(a) Coroners Bill

Harriet Harman MP, Minister of State at theDepartment for Constitutional Affairs, re-cently published the Coroners Bill (see http://www.dca.gov.uk/legist/coronersreform.htm).

This breaks some significant new Parliamen-tary ground. It was published in draft, toallow the House of Commons to undertakepre-legislative scrutiny. The increasing use ofpre-legislative scrutiny has been welcomed,but while draft Bills are not unusual they arenot yet the norm. Scrutiny of this Bill will gofurther, however. The Minister announcedthat “a separate strand of pre-legislativescrutiny [will] take place which will be byfamilies who have recent experience of thecoroners’ service”.

But the Bill’s main novelty arises from its for-mat, as it includes a plain language “translation”of, and alongside, the statutory languageversion. Important questions arise from thisinteresting development, such as how muchinformation the non-specialist reader needs.For instance, clause 46 of the Bill deals withadults giving evidence by live link. The plainlanguage version renders 32 lines of text intothree. But it does not mention the circumstanceswhich the coroner may take into account inagreeing to this happening (such as theimportance of the witness’s evidence).

(b) Scotland

Earlier this year, Parliamentary Counsel inScotland, where the devolved Parliament canmake its own law on some topics, announceda commitment to plain language. They pub-lished a useful booklet setting out a history ofplain statutory drafting, the constraints ondrafters, information on techniques and abibliography—which includes names likely tobe familiar to readers of Clarity—at http://www.scotland.gov.uk/Publications/2006/02/17093804/0.

Both the Coroners Bill and the Scottishdevelopment are also noted elsewhere in thisedition. For the Coroners Bill, see the article byJames Kessler at page 17; for the Scottish plainlanguage development, see the article by AndyBeattie at page 10. Ed.

For the text of the Charter, see http://www.lawsociety.org.uk/documents/downloads/dynamic/betterlawmakingcharter2005.pdf

© A Plouviez 2006

Alison Plouviez is a Policy Adviser in the Law ReformTeam at the Law Society of England and Wales, workingin particular on the Better Law-making Programme. Shehas been interested in plain language since Clarity’searly days and is a former Committee member of Clarity.


1 FEEDBACK ON CONSULTATIONS

Departments should give detailed feedbackon responses to consultations, explaining howthinking has changed as a result and, if majorarguments have not been accepted, why not.

2 PRE-LEGISLATIVE REVIEW

Before re-legislating on a topic, the scope andeffectiveness of existing legislation should bereviewed. If new provisions are needed,these should be carefully dovetailed with theold, and sections which have been overtakenor never implemented should be repealed.Consolidation should be considered.

3 IMPACT ASSESSMENT

‘Justice delayed is justice denied’. Adequateresources—such as funding for legal aid andcourt facilities—need to be provided toensure that new rights and obligations can bepromptly and effectively enforced orchallenged. This means that the cost andother impacts of the measure must besystematically assessed at an early stage andproper provision made well in advance ofimplementation.

4 POST-LEGISLATIVE REVIEW

Significant legislation should be reviewedafter an appropriate period. Is it workingwell? If not, why not? What lessons can belearnt?

5 BALANCING PRIMARY ANDSECONDARY LEGISLATION

Statutory instruments (SIs) often contain vitaldetails about the working of a measure, butreceive a lower level of scrutiny than primarylegislation. Bills should therefore eithercontain more detail or new proceduresshould allow draft SIs to be debated andamended. In the meantime, significantsecondary legislation should be subject toconsultation before being formally laid.

6 SOFT LAW

Soft law, such as government circulars andguidance, should be published online and onpaper by those who make it showing dates of

implementation and clearly distinguishinglegislative requirements from interpretation.Superseded material should be archived butremain available.

7 HELP USERS FOLLOW THE PROGRESSOF LEGISLATION

The Parliamentary website should be designedto help users understand and follow the prog-ress of current and forthcoming legislation.Hansard, long Bills and SIs should be printedwith an index; after each Parliamentary stage,Bills should be reprinted on paper of a differ-ent colour, and made available online, showingthe deletions and additions made to the textin debate. A shorter version of Hansard shouldbe published, to show the effect of votes onthe Bill.

8 USE PLAIN LANGUAGE AND GOODDESIGN

Legislative texts should be produced usingplain language and modern, accessible struc-ture, layout and design, whether on the internetor paper.

9 TAKE ADVANTAGE OF THE INTERNET

Each main measure should have a site or pageof its own, with Acts and SIs in both “aspassed” and “as amended” forms. This shouldinclude essential information such as dates ofimplementation and links to relevant regula-tions, amendments, departmental guidanceand case law, other relevant primary legislationand the lead department. Departmentalwebsites should alert regular users to newsand include all current guidance and circulars,archiving outdated material but keeping itavailable free of charge.

10 IMPLEMENTATION

Implementation of legislation should be care-fully planned to ensure that the measure willbe workable and effective in practice, in partby doing thorough research at an early stage.Guidance and information should be compre-hensive and available in good time before ameasure comes into force.

The Law Society Better Law-making Charterwww.lawsociety.org.uk

The Better Law-making Charter


James Kessler

The Department of Constitutional Affairs hasannounced a Plain English Revolution with asmall fanfare. The press release (12 June 2006)was headed:

First Bill to be Written in Plain English

It stated:

The Coroners Reform Bill will … be the firstBill that will be published in plain English—so that anyone can read it and know whatchanges it is making.

This received a thoroughly positive responsefrom the non-legal public. According to TheTimes (18 June 2006):

Centuries of parliamentary tradition will beswept away next week with a new-style Billoffering a “plain English” translation of theusual impenetrable legal language.”

The Guardian reported the same story insimilar words.

Legal readers may be puzzled. Are we on thebrink of a constitutional revolution in the UK?To see what actually happened, turn to theCoroners Bill.1 This is in fact a draft Bill, pub-lished for consultation. Draft Bills have becomequite a common procedure. You will find theBill drafted in the current preferred style ofthe Parliamentary drafter, no different frommany other Bills. On the right hand side pagesyou will find explanatory notes. Explanatorynotes are as old as legislation itself, andexplanatory notes have been published alongwith Parliamentary Bills since 1999.2 To givethe reader an idea of the soi disant“constitutional revolution”, here is the firstpart of section 1 of the Draft Bill and itscorresponding “plain English” translation:

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Plain English revolution

officially announced


Draft Bill

1 Duty to investigate certain deaths

(1) A senior coroner must conduct aninvestigation into the death of a personas soon as practical if—

(a) he is aware that the body of thedeceased is situated within his area and

(b) subsection (2), (3) or (4) applies.

Explanatory Note

This clause sets out the circumstances when thecoroner will investigate a death. It mirrors therequirements of section 8(1) of the CoronersAct 1988 (“the 1988 Act”), except that therequirement to investigate where the death hasoccurred “in prison” (section 8(1)(c)) has beenaltered so that it applies to deaths where thedeceased was “in prison or otherwise lawfullydetained in custody”.

The location of the body of the deceased (orcremated remains) will determine the coronerwho will have a duty to investigate the death,as is currently the case under section 5(1) of the1988 Act. This is to ensure that more than onecoroner does not begin an investigation. In thenew system, just as in the 1988 Act, coronerswill continue to be allocated to a geographicalarea, although later clauses in the Bill set outthe circumstances when these boundaryrestrictions can be relaxed.

Subsections (2), (3) and (4) set out the types ofdeath that the coroner must investigate....

The innovation, if there is one, is possibly thatthe Explanatory Note is on the right handside of the page as opposed to being pub-lished (as more usual) in a separate volume.

Conclusion

The press release was, alas, out of connectionwith reality. In plain English—of which theGovernment apparently approves—it mightbe called spin, though some might useharsher words, such as misleading rubbish.The PR Department of the DCA knows fullwell that the public wants plain English. Thepress release worked in the sense that itprovided good PR. It made fools of a numberof journalists who took it at face valuewithout, presumably, discussing the matterwith any legal colleagues. The Spectator, forinstance, fell flat for the scam in Rod Liddle’scolumn (17th June 2006) headed “All laws tobe written in plain English? HarrietHarman’s campaign against lawyer-speak”.

How the staff at the Department ofConstitutional Affairs must have laughed!

The moral

Does it matter? It is encouraging that theGovernment recognises the benefits of plainEnglish—if only for the purposes of self-serving press releases. It may be, however,that they are happier to talk the talk than towalk the walk. Much of the Finance Act2006, for instance, is totally incomprehensible.No fanfare here about plain English. Themoral one might draw from this story is notto take on trust anything one reads in a UKGovernment press release.

© J Kessler 2006

Endnotes1 www.dca.gov.uk/legist/coronersreform.htm.2 www.opsi.gov.uk/legislation/uk-expa.htm.

James Kessler is a leading UK barrister. He delivered apaper at the 2005 Clarity conference. His books arerenowned for their clarity of expression, and theprecedents they contain are models of plain language in afield of law that is complex and tortuous. His booksinclude: Drafting Trusts and Will Trusts; Taxation ofCharities; Taxation of Foreign Domiciliaries;Drafting Trusts and Will Trusts in Canada; DraftingTrusts and Will Trusts in Northern Ireland.


Phil Knight

In November last year, the Parliament ofSouth Africa enacted the National Credit Act,20051, which is scheduled to be fully opera-tional within the next year. This new legislation,which applies to every agreement betweenpeople dealing at arms-length if interest ischarged for money loaned, credit extendedor a deferred payment, includes a broad newobligation on creditors to use “plain language”in every document that the Act requires thelender to provide to a borrower.

It is essential that attorneys advising SouthAfrican lenders understand the specificrequirements of that obligation. To do that,they will first need to consider the scope ofapplication of the Act, both as to the trans-actions to which it applies, the borrowerswho are protected by it, and the documentsthat are required to meet the “plain language”standard. All of those questions are beyondthe scope of this article.

However, in preparing to give advice on whatthe law requires of lenders, it is equally impor-tant to examine the specifics of the languagerequirements, which are illustrative of onlyone of the many options available whenpursuing the goal of clarity in legal texts.

The plain language rule

The new requirement governing documentswritten by lenders and delivered to borrowersin South Africa is set out in section 64 of theAct, which reads:

(1)The producer of a document that is requiredto be delivered to a consumer in terms of thisAct must provide that document—

(a) in the prescribed form, if any, for thatdocument; or

(b) in plain language, if no form has beenprescribed for that document.

(2)For the purposes of this Act, a document isin plain language if it is reasonable to

conclude that an ordinary consumer of theclass of persons for whom the document isintended, with average literacy skills andminimal credit experience, could be expectedto understand the content, significance andimport of the document without undueeffort, having regard to—

(a) the content, comprehensiveness andconsistency of the document;

(b) the organization, form and style of thedocument;

(c) the vocabulary, usage and sentencestructure of the text; and

(d)the use of any illustrations, examples,headings, or other aids to reading andunderstanding.

The first significant observation about section64 is its placement within the Act, and thetitle assigned to the section. It falls withinChapter 4—Consumer Credit Policy, Part A–Consumer Rights. The section itself is titledRight to information in plain and understandablelanguage. As a declared right, section 64enjoys a protected status within the Act. Anyattempt to contract out of it would be illegal,and consumers who act to enforce this rightare protected from retribution by the lender.

The details of those legal mechanisms areagain beyond the scope of this article, but theprovision that they protect is profound:clarity has been declared to be a right,alongside the right to participate in theeconomy, the right not to be discriminatedagainst when participating in the economy,the right to receive information, and the rightto have legal rights protected.

Subsection (1) deserves a brief explanation.The new Act specifically allows a court toconsider appropriate foreign law wheninterpreting and applying the Act. Statutoryrequirements of the sort set out in section 64are relatively uncommon in South Africa, soit would be reasonable to expect a court tolook at relevant decisions from foreign courts.The drafters were well aware of the 2002decision of the Supreme Court of Canada inSmith v. Co-operators General Insurance Co.2, inwhich the Court held (among other things)that a general obligation to provideinformation in “straightforward and clearlanguage” could not be satisfied merely byusing a form of document approved orprescribed by the regulator. The Canadian

Clarity for SouthAfrica’s creditconsumers


decision suggests that the author ought tohave added to the approved or prescribedform to the extent necessary to satisfy themore general clear language standard. TheSouth African drafters recognized that anapproved or prescribed form to which morehas been added is no longer the form asprescribed or approved. The Supreme Courtof Canada’s doctrine would create an impos-sible conflict for attorneys and others draftingregulated documents using prescribed forms,as they would have to choose which law toviolate: the one requiring the use of a prescribedform, or the one requiring the use of ‘plainlanguage’. To avoid that trap in the applicationof their new plain language requirements,section 64(1) was framed to apply only todocuments whose form or content had notbeen prescribed by regulation.

Nature of the plain language requirement

Language standards for legal documents takemany forms, but fall broadly into two or threespecies. Some impose an objective test, suchas a readability measurement, font size, or useor avoidance of specific words3. Requirementsof that sort are simple to administer andadjudicate, and provide a high degree ofcertainty for the regulated industry and itsadvisors. On the other hand, they make itequally simple to evade the goal of clarity forthe consumer, since anyone with a modestdegree of creativity can assemble simple wordsin short, direct sentences that neverthelessobscure meaning.

Recognizing that evasion would at times bein the interests of some lenders, that anobjective test allows for technical compliance,but substantive evasion, and that plain, simpletext is not necessarily the same thing as clarityor certainty in meaning, South Africa rejectedthe path of easily measurable standards.

Other legislation imposes a subjective test, inwhich compliance is assessed either againstthe actual ability of a specific consumer to readand understand the text, or on the probabilitythat consumers of a particular class or charac-teristic will generally be supposed to be ableto do so.

Although the ‘specific consumer’ test wouldcreate great legal certainty for consumers,Parliament recognized that the test wasfraught with peril. In a dynamic consumermarketplace, it would be impossible to predict

what style, organization and vocabularywould successfully communicate with eachand every potential consumer. Industry wouldnever have any degree of certainty that it wascomplying with the law, and would alwaysbe exposed to an unacceptable degree of risk.

In the Smith case, discussed above, all of theCanadian courts interpreted the Ontarioinsurance law that was in issue as imposing asubjective ‘class of consumer’ test, holdingthat the documents had to be in “clear lan-guage, directed towards an unsophisticatedperson”4. The South African test, as amplifiedin section 64(2), uses a similar approach, butattempts to be more nuanced (and frankly,less elitist) than was the Supreme Court ofCanada in its characterization of all consumersas presumptively unsophisticated.

Instead, section 64 directs the court to imaginean ordinary consumer of the class of personsfor whom the subject document was intended.That person is not to be imagined as the worstcase—wholly unable to read. Rather, it is aperson of average literacy—a test that can,and should, be applied in a flexible manner,having regard to the various patterns of literacyin various localities and across various eco-nomic classes. On the other hand, the imaginedconsumer is not to be the best case—a highlyexperienced borrower. Rather, the assump-tion is to be made that the consumer is a firsttime borrower. This description of the imaginedconsumer is rooted in the recognition thatability to read and understand a documentvaries with two kinds of life experience—thatof a reader, and (in the context of credit) thatof a borrower. Section 64 says that, whenpreparing their documents, lenders mayassume the borrowers to be somewhat exper-ienced readers, but must assume that theyare all novice debtors.

One more characteristic applies to theimagined consumer—they have to try toread the document. The court is to considerwhether it is reasonably probable that asomewhat experienced reader, even though anovice debtor, who makes a reasonable effortto do so, will comprehend the document.With this short clause in section 64(2), SouthAfrica rejected any notion of a text-basedconception of communication and recog-nized that meaning is not simply lying on thepage, waiting to be absorbed, but rather iscreated in the minds of readers applying


themselves to a document and the symbolsencoded upon it.

However, the court is not to limit its enquiryto the nature of the ordinary consumer forwhom a document is intended. Just as section64 recognises that communication and thecreation of meaning is ‘reader centred’, it alsorecognizes that consumers have a purpose inreading their credit contracts and otherdocuments. So, the test continues by directingthe court to consider those purposes, askingwhether it is probable that the consumercould understand the content, significanceand import of the document. The three nounsin that string suggest these three questions:

• Can the consumer understand what thedocument says?

• Can the consumer understand what thedocument has to do with the creditarrangements?

• Can the consumer understand the effect ofthe message on the credit arrangements,and on other aspects of the consumer’saffairs?

Finally, section 64 provides some assistancefor anyone assessing whether a documentmeets the plain language test, by directing areview of four qualities of the text itself.

First, consider the thought reflected in thedocument, as a whole text. Is it complete,comprehensive and consistent?

Second, consider the organization andpresentation of the text. Is there a logic to it,and is it a logical pattern that the reader willrecognize and find helpful?

Third, consider the language, words, usageand sentence structure. In many laws of thistype, this consideration comes first, and inyet many more, no other considerations areeven mentioned. Yet research has shownthat, despite all the attention given tovocabulary and sentence structure andlength, when assessing comprehensibility,these aspects are the least significant featuresof a text. So it seems fitting that thisconsideration should fall lower in the listthan the more significant matters thataddress the readers’ comprehension, ratherthan cognition and decoding.

Fourthly, consider any aids to understandingthat have been inserted to illustrate any

aspect of the text. Does it have a table ofcontents, headings, glossary? Did the authoruse tables, examples or graphs?

Final thoughts

Significantly, none of documentcharacteristics included in section 64 arerequired. They are merely aspects of the textto be considered when assessing whether theplain language test has been met. In fact,section 64 does not require of any documentthat it meets any textual quality at all, nor isits purpose to measure any document againstany particular objective quality criteria.Rather, it requires that the intended readerswill probably be able to understand thedocument, and directs the court and othersas to how to assess whether that test hasbeen met.

There is a rhetorical paradox in section 64.On the one hand, it starts by requiringcertain documents to “be in plain language”,an expression that suggests a text based testfor such a document. On the other hand, itdescribes a document as “being in plainlanguage” if it satisfies a test that is readerbased and related to purposivecommunication. Section 64 has appropriateda widely used, though ultimately nonsensical,expression often employed in relation todocuments as static artifacts, and re-directedit to focus on the interpersonal dynamic ofwritten human communication.

© P Knight 2006

Endnotes1 Act No. 34 of 2005. Published in Government

Gazette 28619 on 15 March 2006. To access thefull text of the Act in Acrobat (.pdf) format, go towww.dti.gov.za/ccrdlawreview/creditact2006/htm

2 (2002) SCC 30. Reviewed by Janet Erasmus in(2002) Clarity 48 at page 32.

3 See, for example, certain aspects of the regulationsreviewed by Margaret van Naerssen in (2005)Clarity 53 at page 57, or the regulations I reviewedin (1995) Clarity 32 at page 22.

4 Italics added for emphasis.

Phil Knight is a Canadian lawyer, university lecturerand drafter. He is a former Editor of Clarity and formany years was Clarity’s Canadian representative. Hehas drafted some of South Africa’s most important post-apartheid Acts, including its human rights legislation.


efficient and effective. These benefits flowthrough to our clients, ourselves and the legalprofession as a whole.

Back in 1986, we were mainly focussed onthe efficiency benefits for the firm. Forexample, by using plain language we wereable to reduce the number of words in ourprecedent documents, sometimes by morethan half.2 For a 20-page document, even a25% reduction means around 2,000 fewerwords. As a result, our lawyers can prepareand review our documents faster. And let’sface it, no one likes reading or writingunnecessary words. That is a chore usuallyreserved for school children on detention, notprofessionals working to tight deadlines toachieve the best result for their clients.

Another efficiency benefit is that plainlanguage reduces errors and promotesaccuracy. Documents written in plainlanguage are easier to read and understandthan those written in legalese. Therefore it ismuch harder for a mistake to go undetectedin a plain language document. Mistakes areusually discovered and corrected before thedocument is finalised. In one matter we wereasked to rewrite a client’s standard form loanagreement in plain language. After reviewingthe document, the client asked why we hadinserted a particular clause. In fact we hadnot inserted it. The clause had been in thedocument all along, but the client did notrealise this until they read the plain languageversion. Unfortunately, plain languagecannot guarantee mistake-free documents,only clear thinking can do that—but it is stillan important aspect of risk management atMallesons.3

It did not take long for our clients to realisethat plain language benefits them too. Itenables them to actively participate in solvingtheir legal problems and, ultimately, to makeinformed decisions about what they shoulddo next. Today, the majority of our clients notonly expect plain language, they demand it.They will not tolerate advices or documentsthat they do not understand.

We can also vouch for the legal effectivenessof plain language. Over the years we haveprepared all types of documents in plainlanguage: advices, agreements, insurancepolicies, compliance manuals, prospectuses.Some of them have been tested in court. Weare pleased to say that they fared well.4 In

Belinda Gibson and Marco StellaMallesons Stephen Jaques

Introduction

Mallesons is a leading commercial law firm inthe Asia-Pacific region. In 1986, we took theunprecedented step of introducing a plainlanguage policy. At the time, we did notrealise how pervasive plain language wouldbecome, not just at Mallesons, but in the legalmarket generally. We now regard plainlanguage as “the voice of our brand” and anintegral part of the firm’s culture.

Plain language is a simple concept. It doesnot have a special legal meaning. It justmeans communication that is clear and easyto understand. Plain language is oftencompared to traditional legal language (alsocalled “legalese”). The comparison is stark.Legalese is difficult to read and understand,even for lawyers. Documents written inlegalese are poorly organised, use outdated oroverly complex grammatical structures (orboth), and contain unfamiliar, confusing andunnecessary words. Plain language is a wayto avoid the problems of legalese.

One feature that plain language shares withmany other simple ideas (for example, “eat lessand exercise more”) is that it is surprisinglydifficult to put into practice. This article isabout our experiences in implementing plainlanguage at Mallesons. In particular, wediscuss:

• why we decided to adopt plain language;

• how we did it;

• the challenges we faced; and

• our achievements and some futuredirections.

Why use plain language?

The benefits of plain language are now welldocumented.1 In summary, plain language is

Implementingplain language atMallesons


fact, judges have commented favourably onplain language documents (not just ours).5

Finally, plain language benefits the legalprofession as a whole. Poor communication isa major cause of friction between lawyersand their clients. It often leads to formalcomplaints being made again lawyers.6 Nodoubt the way many lawyers writecontributes to these problems. So, instead ofadding to the problem by using legalese tomystify their work, lawyers could improvetheir client relationships by using plainlanguage to clarify what they do.

How did we do it?

Even though plain language is not a newlanguage, there are some parallels betweenlearning a new language and learning plainlanguage. At Mallesons we introduced plainlanguage by immersion. We wanted tosurround our lawyers with plain language soas to give them every possible opportunity touse it in their day-to-day work.7 We did (andstill do) this by providing them with plainlanguage precedents, training them in plainlanguage techniques, and offering supportwhen they need it.

Precedents

Our precedents are templates for creatingdocuments. They range from basic frame-works requiring the writer to fill in most ofthe detail (for example, a letter template), tosophisticated agreements and letters ofadvice containing not only standard text butalso choices and “help notes” representingyears of accumulated know-how.

Precedents are the starting point for many ofthe written communications we produce. Ifour precedents are in plain language, thenthe majority of our finished documents willbe too. And by using the precedents over andover again, our lawyers are constantlyexposed to good plain language writing.

Three of our precedents comprise the firm’sstyle guide. They set out our format rules andwriting guidelines for all written communi-cations. These rules and guidelines are basedon plain language principles.

We have strict quality controls for precedents.Each precedent is carefully prepared by oneof our precedent lawyers, usually in con-junction with one or more lawyers from therelevant practice team. They are signed off by

at least one partner. This process ensures thatno detail, even seemingly minor ones, escapesplain language scrutiny.

There is no point having plain languageprecedents unless they are easily accessible.In 1994 we ensured that our lawyers couldinstantly access the entire suite of precedentsfrom their desk.8 Our technology has movedon, and it is now possible for our lawyers toaccess the precedents from any place wherethere is a computer with an internet connection.

Training and support

Having a comprehensive suite of plainlanguage precedents is at best a good start.During the course of any matter, the prece-dent is modified to create the final documentfor the client. It is therefore important for ourlawyers to be able to write independently inplain language. If they do not, it is usuallyvery obvious where the precedent stops andthe original writing starts.

So we back up our precedents with trainingfor our new starters when they join the firm.All new starters have a session on Mallesons’style and the importance of using it for allwritten communications. New lawyers havean interactive session specifically on plainlanguage, which covers:

• planning and organising material logicallyfor the reader;

• sentence structure, including sentencelength, active and passive voice, positiveand negative sentences and placement ofessential elements; and

• word choice, including using familiarwords, avoiding unnecessary words, andusing verbs for actions.

Also, seasonal clerks (law students workingat Mallesons during their vacation beforeentering the final year of university) have aspecial session on how to write a goodresearch memo. This is a more practicalsession, focussing on the specific skills theclerks will be using during their clerkship.As an added bonus, they can use their newlyacquired plain language skills when theyreturn to university to complete their studies.

As well as training, plain language contactsthroughout the firm are available to assistwith plain language problems. This “just intime” support can be a particularly effectiveway of spreading plain language skills,


support the initiative. Partners have an enor-mous influence over the development ofjunior lawyers. Those partners who do notactively support plain language can sometimespass on old habits to a new generation oflawyers, who then need to be re-educated. Ithas taken a long time to minimise these“pockets of resistance”.

Another critical factor in convincing ourlawyers has been the calibre, dedication andenthusiasm of the people who have led theway. We have been fortunate to have had onour team world-renowned plain languageexperts like Michèle Asprey, Dr RobertEagleson, Ted Kerr and Professor Peter Butt(the last two are still with us). Robert, a formerprofessor of English at Sydney University,was particularly helpful in convincing lawyersof the merits of plain language. Even ourmost opinionated lawyers thought carefullybefore arguing points of grammar with him!

We have found that even lawyers who acceptplain language as the best way to write andwho have all our plain language resources attheir disposal, sometimes still use legalese.This may be because the client insists that acertain clause or document should be used,or because there is not enough time to com-pose or check a plain language version. Butthese situations are becoming less frequent.

Our achievements and future directions

Over the past 20 years, we have:

• dramatically improved our service to clientsby clearly and effectively communicatingsolutions to their complex legal problems;

• changed the firm’s culture so that plainlanguage is regarded as the only acceptableform of written communication;

• won 3 Clarity awards;

• set up and maintained an extensive suite ofplain language precedents; and

• trained our lawyers to write independentlyin plain language.

Our challenge now is to maintain ourleadership in the field of plain languagecommunication, by continuous improvementand training and by using the latest technol-ogy to make better drafting resources morereadily available.

© B Gibson and M Stella 2006

because it is in response to a real problemrather than a hypothetical training situation.

Past challenges

Introducing plain language at Mallesonsraised its fair share of challenges. This sectionsets out a few of the more important ones,some of the mistakes we made, and how wefixed them.

Project management

At the start, we did not realise just how big aproject implementing the plain languagepolicy would be. To put it into perspective,between 1988 and 1990 the costs of developingour precedents were over $5,000,000. We alsoemployed 7 lawyers full-time during thatperiod to get the job done.9 Since then wehave committed substantial resources toexpand and maintain our precedent system.A project of this size will not succeed withoutproper project management. This includescareful scoping of the project, planning thetasks to be performed, allocating resources,setting milestones and checking and rewardingprogress.

Resistance to change

On a personal level, the change from legaleseto plain language can be confronting. It isvery difficult for anyone to change theirwriting style, especially if they have beenusing it for many years. While most lawyerswould not dream of basing a legal advicesolely on a legal textbook published 20 yearsago, often they are quite content to use awriting style and rules of grammar of a similarvintage (if not older) in the very same advice!

There are two steps to successfully managingthe change from legalese to plain language:

• convincing people that it is the right thingto do; and

• giving them the tools and the skills to do it.

We discussed the second step in the previoussection. The rest of this section deals with thefirst step.

Convincing our lawyers to change

Today, the case for plain language is widelyaccepted. In 1986 it was not. A key factor inachieving the first step at Mallesons washaving the support of the firm’s senior man-agement. In a partnership, this effectivelymeans that a majority of partners must actively


Endnotes1 M Asprey, Plain Language for Lawyers, 3rd ed, The

Federation Press, Sydney 2003, pp 33-34; P Buttand R Castle, Modern Legal Drafting: a guide tousing clearer language, Cambridge UniversityPress, Cambridge 2001, pp 88-95; R Eagleson (EKerr and C Balmford, eds), “Plainly the Best—Guidelines for expert legal drafting”,unpublished Mallesons document, pp 1-2.

2 Eagleson, p 2.3 Eagleson, p 2.4 Eagleson, p 2.5 Asprey, pp 49-54; Butt and Castle, pp 83-84.6 G Dwyer, “Good communication is good

business” (2006) 44(3) NSW Law Soc J 46.7 E Kerr, “Using plain language in law firms”,

(1994) 73 Mich BJ 48.8 Kerr, p 50.9 Kerr, p 50.

Belinda Gibson is a partner at Mallesons StephenJacques, a leading Australian law firm with officesthroughout Australia and in a number of othercountries. Marco Stella is a senior associate atthe same firm, with extensive experience intraining and precedent development. Mallesons(as the firm is usually called) is known for itsplain language drafting style, and many of itspartners and staff are members of Clarity. Aversion of this article was recently published byCCH Australia, at www.cch.com.au, and isreproduced here with the consent of CCH. Ed.


Susan D. KleimannKathryn Maloney SimondsRasika Krishna

Background

The U.S. government had a public policyproblem—and needed a solution.

To protect consumers and make them awareof financial-information-sharing practices,the U.S. government implemented a policy in1999 known as the Gramm-Leach-Bliley Act(GLBA). The GLBA requires financialinstitutions to provide their customers withdisclosure notices about their policies andpractices around financial informationsharing. In response to the regulation,financial institutions went to great lengthsand expense to comply with the government’spolicy and disclose their practices. However,consumers weren’t reading the financialprivacy notices—and if they attempted toread the notices, they couldn’t understandthem.

The GLBA specifically states that privacynotices must be “clear, conspicuous, andaccurate statements of a company’s privacypractices.” However, researchers reportedearly on that the privacy notices were toolengthy, dense in content, and containedcomplex language. The government mademany attempts to address the problems—issuing draft language, holding joint agencyworkshops on writing effective privacynotices, developing guides for complying,and opening up for comments from industry.After six years, the government enlistedcommunication experts to help them developalternative financial privacy notices thatconsumers could easily understand and use.

Our company, Kleimann CommunicationGroup, Inc., conducted formative researchand an iterative document design projectsponsored by six of the federal financialregulatory agencies1. The government unveiled

KCG’s full report on financial privacy noticeson March 31, 2006. The report presents aresearch-based rationale for a “prototype”privacy notice. It discusses the qualitativeresearch methodology used; presents findingsand analysis from eight test sites; describesthe evolution of the prototype through an 18-month iterative process; and outlines keythemes that contribute to the success of theproject and to the clarity and usability of theprototype.

Objective and goals

The project objective was to explore thereasons why consumers don’t read and under-stand privacy notices, and then to use thisresearch to develop paper-based alternativeprivacy notices—or components of notices—that consumers could understand and use.We used a rigorous, research-based designmodel to gather data and make revisionsafter each iteration based on consumer input.This process of designing and revising allowedus to continually modify general and specificfeatures of the prototype, such as content,presentation, and wording. The process alsoallowed us to understand barriers to consumercomprehension and ultimately arrive at aprototype that met the research goals of com-prehension, comparability, and compliance.

• Comprehension. The prototype must enableconsumers to understand the basic conceptsbehind the privacy notices and understandwhat to do with the notices. It must be clearand conspicuous as a whole and readilyaccessible in its parts.

• Comparison. The prototype must allowconsumers to compare information-sharingpractices across financial institutions and toidentify the differences in sharing practices.

• Compliance. The prototype must include theelements required by the GLBA and theaffiliate marketing provision of the Fair andAccurate Credit Transactions Act.

Evolution of aneasy-to-understand financial privacy notice


Design considerations

Within the design, we worked with severalconsiderations and constraints:

• Neutral and objective. The prototype neededto inform consumers about privacy lawsand financial institutions’ sharing practicesin a factual and neutral way. The languageshould provide factual information, notdirect a consumer to make any particulardecision. Through the course of designingand testing, we resisted using inflammatoryor potentially provocative words as a meansof attracting attention to the document.

• Format and design. The prototype neededto be paper-based rather than Web-based.To focus on the research goals of compre-hension, comparability, and compliance,and to minimize testing variables, we testedonly in black and white, on 8½” x 11” paper,and with a large, readable font.

Methodology and testing

We used four qualitative methods—focusgroups, preference testing, pretest, anddiagnostic usability testing—to iterativelydevelop and refine the prototype accordingto the research goals of comprehension,comparability, and compliance.

We tested a total of 66 participants over eighttest rounds in various locations based on theU.S. census regions and divisions. The testingwas conducted over 12 months, as follows:

• Two focus groups with 10 participantseach, 20 participants total (Baltimore, MD)

• Preference testing with 7 participants(Washington, DC)

• Pretest with 4 participants (Baltimore, MD)

• Diagnostic usability testing with 35participants in five sites (San Francisco,CA; Richmond, VA; Austin, TX; Boston,MA; and St. Louis, MO)

Research and design

Each test session was carefully planned andstructured to meet the research goals. Thefollowing five questions helped guide thedevelopment of the prototype content anddesign. How do we:

1. attract consumers’ attention to the noticeusing only objective and factual language?

2. decide what information to include?

3. ensure that consumers can understandabout the sharing of their personalinformation?

4. ensure that consumers can comparesharing practices across financialinstitutions?

5. enable consumers to understand howto opt-out?

Prototype evolution

As with most design development projects, akey challenge was how to select and organizethe content of the notice to address thesegoals and questions. We used the informationand elements required by the law, organizingthem in different ways throughout the processto arrive at a final organization of the contentthat worked.

We developed and tested a variety of designs,ultimately structuring the disclosure ofinformation-sharing practices in a tableformat. We also experimented with a prosedesign of the disclosure information, but thetable design worked far better in helpingconsumers easily access, understand, andcompare sharing practices. We learned thatwe needed to include an educational compo-nent in the notice, as consumers had no priorunderstanding of information-sharingpractices. To do this, we identified the keyinformation that would draw the reader intothe notice and provide sufficient informationto enable understanding of the disclosuretable. Supplemental information, such as defi-nitions and additional information requiredby the GLBA, was provided on page 2 of theprototype. Testing showed that consumerscould work with page 1 alone, although theyappreciated the supplemental information onpage 2 for further clarification.

The prototype notice

The prototype has four key components—thetitle, the frame, the disclosure table, and theopt-out form—that contribute in multipleways to its effectiveness.

The title

The title helps consumers understand thatthe notice is from their bank and that theirpersonal information is currently beingcollected and used by their bank.


The frame

The frame is at the heart of ensuring compre-hension, because it provides basic informationabout financial-sharing practices as a contextfor consumers to understand the details oftheir particular bank’s sharing practices. Thekey frame on page 1 provides a context forthe consumer and gives key details. Thesecondary frame on page 2 also includes aseries of frequently asked questions, morerequired information, and more detaileddefinitions of terms on page 1. The frame isnecessary for understanding the disclosureinformation.

The disclosure table

The disclosure table is at the heart of the proto-type. It not only shows what the individualfinancial institution is sharing, but alsoincludes seven basic reasons any financial

institution can share information. The disclo-sure table, therefore, enables consumers tounderstand the details of their financialinstitution’s sharing practices in the contextof how other financial institutions can share.It is critical for comprehension and compara-bility.

The opt-out form

The opt-out form identifies how a particularfinancial institution allows consumers to limita particular type of sharing.

Meta-themes

Six meta-themes informed and guided thedevelopment of the prototype. To an extent,these meta-themes are universal design princi-ples. The tendency in the design developmentof a complex product is to say too much, tolet design decorate, to attract attention at the

F A C T S WHAT DOES NEPTUNE BANK DOWITH YOUR PERSONAL INFORMATION?

Financial companies choose how they share your personal information. Federal lawgives consumers the right to limit some but not all sharing. Federal law also requiresus to tell you how we collect, share, and protect your personal information. Pleaseread this notice carefully to understand what we do.

All financial companies need to share customers’ personal information to run theireveryday business—to process transactions, maintain customer accounts, and reportto credit bureaus. In the section below, we list the reasons financial companies canshare their customers’ personal information; the reasons Neptune Bank chooses toshare; and whether you can limit this sharing.

The types of personal information we collect and share depend on the product orservice you have with us. This information can include:

• social security number and income• account balances and payment history• credit history and credit scores

When you close your account, we continue to share information about you accordingto our policies.

Title

Key Frame

DisclosureTable

Why?

What?

How?

Page 1

Contact Us Call 1-800-898-9698 or go to www.neptunebank.com/privacy

For our everyday business purposes—to process your transactions, maintain your account,and report to credit bureaus

For our marketing purposes—to offer our products and services to you

For joint marketing with other financial companies

For our affiliates’ everyday business purposes—information about your transactions and experiences

For our affiliates’ everyday business purposes—information about your creditworthiness

For our affiliates to market to you

For our nonaffiliates to market to you

Yes

Yes

Yes

Yes

Yes

Yes

Yes

No

No

No

No

Yes (Check your choices, p. 3)



Reasons we can share your personal information Does Neptune Bank share? Can you limit this sharing?


expense of balance, to provide the specificswithout a context, and to standardize withoutdiscrimination. The final prototype—ourdesign and content decisions—grows out ofand is grounded in the following themes, ourparticular research methodology, and ourresearch results.

Keep it simple.

Our research consistently showed that con-sumers are overwhelmed by too many words,complex information, and vague words andphrases. In fact, when faced with complexinformation, often they won’t even bother toread. Our evolution of the prototype focusedon minimizing burden on the consumer bycontinually simplifying the notice. We elimi-nated redundancies, reduced words, usedsimpler words, clarified meaning, and providedkey context information up front. At thesame time, we did not oversimplify. A noticethat strips away all contextual information

will be short but uninformative. The challengeis to find the balance between as few wordsas possible and enough information so con-sumers understand.

Good design matters.

Good design delivers important informationin a format that reinforces the content. Ourresearch repeatedly showed that consumersresponded positively to the table design,headings, white space, bold text, bulletedlists, a larger font size, and full-size paper.These design techniques, combined with thesimplified content, helped consumers betterunderstand the information. They recognizedthat it looked different from other privacynotices, commenting that it was easier toread and that it looked more inviting. Theeasy-to-read design created the impressionthat the bank wanted the information to beread and understood.

WHAT DOES NEPTUNE BANK DOWITH YOUR PERSONAL INFORMATION?

SecondaryFrame

Page 2

Contact Us

F A C T S

Sharing practices

Definitions

How often does Neptune Bank notifyme about their practices?

How does Neptune Bank protect mypersonal information?

How does Neptune Bank collect mypersonal information?

Why can’t I limit all sharing?

We must notify you about our sharing practices when you open anaccount and each year while you are a customer.

To protect your personal information from unauthorized access and use,We use security measures that comply with federal law. These measuresinclude computer safeguards and secured files and buildings.

We collect your personal information, for example, when you

• open an account or deposit money• pay your bills or apply for a loan• use your credit or debit card

We also collect your personal information from others, such as creditbureaus, affiliates, or other companies.

Federal law gives you the right to limit sharing only for

• affiliates’ everyday business purposes—information about yourcreditworthiness

• affiliates to marke to you• nonaffiliates to market to you

State laws and individual companies may give you additional rights tolimit sharing.

The actions necessary by financial companies to run their business andmanage customer accounts, such as

• processing transactions, mailing, and auditing services• providing information to credit bureaus• responding to court orders and legal investigations

Companies related by common ownership or control. They can befinancial and nonfinancial companies.

• Our affiliates include companies with a Neptune name; financialcompanies, such as Orion Insurance; and nonfinancial companies,such as Saturn Marketing Agency.

Companies not related by common ownership or control. They can befinancial and nonfinancial companies.

• Nonaffiliates we share with can include mortgage companies, insurancecompanies, direct marketing companies, and nonprofit organizations

A formal agreement between nonaffiliated financial companies thattogether market financial products or services to you.

• Our joint marketing partners include credit card companies.

Everyday business purposes

Affiliates

Nonaffiliates

Joint marketing


Careful design decisions ensure neutrality.

The point of privacy notices is to provideinformation, not direct a decision. They needto deliver information about financial sharingpractices in a way that reports the informationtruthfully. We, therefore, focused on usingfactual language, objective presentation, andnon-inflammatory words. In each round oftesting, we listened for comments, reactions,and perceptions from consumers that indicatedareas of potential bias in the notice. Theiterative testing process allowed us to makedesign decisions that led to a final notice thatis intended to be clear, neutral, and unbiased.

A “whole-to-part” design is critical tocomprehension.

Our research showed that consumers neededa context for understanding the informationin the notice. Most consumers do not have anoperational understanding of information-sharing. Therefore, the notice needed to provideenough context that consumers could under-stand the detail both at the general level andat the table level.

The key frame component provides a contextabout financial-sharing laws and personalinformation so consumers can understandthe disclosure table.

The disclosure table frames the bank’s sharingpractices by giving reasons why financialinstitutions can share information. Consumerscan then distinguish and understand thespecific sharing practices of their bank andcompare them to other institutions.

Consumers need the context of both thewhole and part to understand the criticaldetails. Without context, they understandvirtually nothing.

Standardization is highly effective.

Standardization of form and content helpedconsumers recognize the notice and theinformation in it. As they became familiarwith the prototype, they learned where tolook for the differences. Standardizationreduces cognitive burden because consumersrecognize the information without having tocontinually re-read notices word for word.

WHAT DOES NEPTUNE BANK DOWITH YOUR PERSONAL INFORMATION?

Opt-outForm

Page 3

F A C T S

If you want to limit our sharing

Contact us By telephone: 1-800-898-9698—our menu will prompt you through your choices

On the web: www.neptunebank.com/privacy

By mail:

Neptune BankPrivacy DepartmentPO Box 36775Phoenix, AZ 88709

Unless we hear from you, we can begin sharing your information 30 days from thedate of this letter. However, you can contact us at any time to limit our sharing.

Check any/all you want to limit: (See page 1)

Do not share information about my creditworthiness with your affiliates for theireveryday gusiness purposes.

Do not allow your affiliates to use my personal information to market to me.(I will receive a renewal notice for this use for marketing in 5 years.)

Do not share my personal information with nonaffiliates to market their productsand services to me.

Check your choices

Your choices willapply to everyoneon your account.

Main-in form

Mail to:

Neptune BankPrivacy DepartmentPO Box 36775Phoenix, AZ 88709

Your name

Your address

Your account number


The disclosure table is critical.

The disclosure table is at the heart of theprototype. It shows consumers how theirpersonal information might be shared, howtheir particular bank shares it, and whatsharing they can limit. Simple, concise, andhighly visual, the standardized disclosuretable simplifies highly complex and mandatoryinformation into a design that consumers canunderstand without undue burden. Ourresearch showed that consumers preferredthe standardized disclosure table, couldunderstand the disclosure information withgreater ease than with the prose design, andcould accurately compare sharing practicesacross financial institutions. The disclosuretable, with its whole-to-part structure, iscritical to consumer understanding andcomparing financial sharing practices.

Conclusion

Ultimately, the prototype derived from eightrounds of testing ensures that the informationabout financial privacy laws and sharingpractices is available to the public in a clearand understandable notice that can be easilyadapted by any financial institution. Now,the very reason the GLBA was enacted—toprotect and inform consumers via clear andtransparent disclosure—has a chance to beeffective.

The report extensively details the evolution ofthe prototype through each of the testrounds, illustrating how the prototype clearlyand conspicuously informs consumers, whocan, therefore, make informed choices. Thatwas the crux of the Form DevelopmentProject—and its success.

The full research report is available online atwww.kleimann.com.

© S Kleimann, KM Simonds, & R Krishna 2006

Endnotes1 The six federal agencies are: Board of Governors

of the Federal Reserve System, Federal DepositInsurance Corporation, Federal TradeCommission, National Credit UnionAdministration, Office of the Comptroller of theCurrency, and the Securities and ExchangeCommission.

Susan Kleimann is a leader in the field of clearcommunication, and an internationally recognized plainlanguage expert. She has over 30 years of experienceproviding thoughtful technical communications expertiseto numerous organi-zations. Dr. Kleimann and her teamhave led transformative research, design, and organiza-tional process projects on high priority and recognizabledocuments for multiple organizations. Susan is Presidentof Kleimann Communication Group.

Kathryn Maloney Simonds is an expert in translatingcomplex policy into documents that are meaningful,understandable, and useful to people. A communicationand organizational development specialist, she transformsteams into dynamic and evolutionary drivers of changeand developers of ground-breaking solutions. Kathryn‘sresearch interest focuses on the process of analyzing thecomplex information that is collected during iterative,qualitative testing sequences. Kathryn is a Consultantwith Kleimann Communication Group in the UnitedStates.

Rasika Krishna is a master in logistical operations andresearch design for complex projects. She has expertlycrafted an innovative approach to coding and analyzingresearch data based on grounded theory. She is skilled inqualitative and quantitative research and analysis,usability testing, document design theory, strategicadvertising and marketing research, and survey/questionnaire design. Rasika is a Consultant withKleimann Communication Group in the United States.


Christopher CoxU.S. Securities & Exchange Commission

April 25, 2006

Thank you for giving me the opportunity tobe here today to testify about the initiativesand priorities underway at the Securities andExchange Commission to improve financialdisclosure for individual investors.

Several years ago, in the midst of rampantfinancial scandals and a crisis of investorconfidence, this Committee held a series ofexceptionally important hearings on corporateresponsibility and investor protection. Thosehearings, and the work of the Members ofthis Committee that followed, laid the founda-tion for landmark reforms that have restoredinvestor confidence and the health of ourcapital markets. I commend each of you foryour efforts, and am happy to report that theSEC is using the new tools that you have givenus to insure that those reforms are implementedexactly as intended by the Congress.

A lot has happened in the nine months sinceI last sat at this table. I very much appreciatethis opportunity to give you a report on thenew initiatives the SEC has undertaken, aswell as to hear from you about your priorities.

Introduction

The principal subject of this brief testimony isimproving disclosure for the benefit of indivi-dual investors. If I may, I’d like to take a stepback and put these efforts into context.

Most of your constituents are not investmentbankers, or lawyers, or accountants. But mostof them are investors. It is a stunning fact oflife in the 21st century that a majority of Amer-icans now own stocks, either directly orthrough mutual funds. It is chiefly to servethese people that the SEC exists. Our mission—to protect investors, promote capital

We reproduce here two items of interest,particularly to US readers. The first concernsdevelopments at the US Securities & ExchangeCommission. The second concerns importantlegislative developments.

US Securities & Exchange Commission

Many Clarity readers will have heard of theimportant lead being taken by the USSecurities & Exchange Commission inpromoting plain language in securitiesdocuments and prospectuses. A number ofother Securities Commissions around theworld are considering following the US lead.Earlier this year, the Chairman of the USCommission appeared before the US SenateCommittee on Banking, Housing and UrbanAffairs to testify about the Commission’sinitiatives and priorities to improve financialdisclosure for individual investors. Thefollowing is an edited text of his testimony.The full text is available at http://www.sec.gov/news/testimony/ts042506cc.htm

Improving financialdisclosure forindividual investors

Two items from the US


formation, and maintain orderly markets—must always put ordinary Americans first.

In a well ordered market, educated consumerscan choose from a number of competitiveproducts and find what they want at a pricethey are willing to pay. But in order to educatethemselves, investors need comparative facts.So while investors must bear the responsibilityof learning what they can about their invest-ment choices, the correlative duty of sellers ofinvestment products is to provide the relevantinformation. What’s more, in order forinvestors to make sound decisions, the seller’sinformation has to be understandable,accessible, and accurate.

These are the basic ingredients of healthycompetition in every corner of the financialmarketplace.

To more closely match the theory of a wellordered market with today’s reality, the SECis currently pursuing four key initiatives toimprove the quality and usefulness of disclo-sure for individual investors. These initiatives,taken together, are designed to insure thatinvestors have access to more accurate andunderstandable information about the secu-rities they own or are considering buying.

These four initiatives are:

1. Moving from boilerplate legalese to plainEnglish in every document intended forretail consumption;

2. Moving from long, hard-to-readdisclosure documents to easy-to-navigateWeb pages that let investors clickthrough to find what they want;

3. Reducing the complexity of accountingrules and regulations; and

4. Focusing our anti-fraud efforts on scamsthat target older Americans.

Making disclosure understandable forordinary investors

It’s the SEC’s job to see to it that financialdata and qualitative information about theissuers of securities are fully and fairly dis-closed. But surely we can’t say we’ve achievedthat objective if the information is providedin a way that isn’t clearly understandable tothe men and women for whom it is intended.Empowering investors doesn’t just meanbetter access to information —it also means

access to better information. Simply put, thequestion is: once that SEC-mandated infor-mation is available, is it understandable?The answer all too often is a resounding andfrustrated “no.”

Even though they are nominally written inEnglish, the disclosure in some documentsthat are provided to investors is often so fullof legal jargon and boilerplate disclosure thatit can actually obscure important information.Convoluted language and disclosure in foot-notes may serve lawyers and insurancecompanies, but it doesn’t improve an investor’sability to understand the most importantfacts about a particular investment.

Exhibit A, when it comes to convoluted disclo-sure, is today’s regime for reporting executivecompensation. Ordinary American investorshave a right to know what company executivesare paid because those investors own thecompanies. The executives work for them.

It’s a direct corollary of the fact that morethan half of Americans own stock today, thatexecutive compensation will be judged justlike every other labor and material cost that afirm incurs. Gone are the days when investorswere mostly privileged, high-income elites.Today’s investors come from middle classhouseholds that sit around the kitchen tableand make tough choices about their monthlybudgets. They expect the companies theyinvest in to do the same.

But how can an investor judge whether he’sgetting the best executive talent at the bestprice? Too often, the most important parts oftotal compensation are hidden away in foot-notes, scattered in different parts of the proxystatement, or—depending on the form thecompensation takes—not even disclosed at alluntil after the fact.

Three months ago, the Commission votedunanimously to propose an overhaul of theexecutive compensation rules. This marks thefirst time in 14 years that the SEC has under-taken significant revisions of the disclosurerules in this area.

The proposal would require better disclosureon several fronts.

First, companies would report a “total”figure—one number—for all annual compen-sation, including perquisites.


Second, retirement benefits would be clearlyoutlined in new tables showing the defined-benefit and defined-contribution plans of topofficers.

Third, there would also be clear descriptionsof payments that could be made if an executiveis terminated. No such disclosure is requiredunder our current rules.

Fourth, for the first time, all compensation forthe last year to board members would befully disclosed.

Fifth, a new Compensation Discussion andAnalysis section would replace the Compen-sation Committee Report and the performancegraph, which is now often mere boilerplateand legalese. This new narrative section willallow the board members to have a frankdiscussion with their bosses, the shareholders,about how they have gone about determiningthe compensation for the company’s topexecutives.

By improving the total mix of informationavailable to investors, the directors who workfor them, and the marketplace, we can helpshareholders and compensation committeesto better inform themselves and reach theirown conclusions.

Sixth, and finally, since the purpose here is toimprove communications, the proposed rulesrequire that all of this disclosure be in plainEnglish—the new official language of the SEC.That will be true whether the information isin a proxy statement, an information state-ment, or an annual report.

Plain English uses plain words—and, amongother basic ingredients, the active voice. Wewant to promote the use of the active voicenot just because it makes for punchier sen-tences, but because it requires a definitesubject to go with the predicate. That’s theonly way that investors will be able to figureout who did what to whom.

And we won’t stop there. Some years ago,under Chairman Arthur Levitt, the SECbegan a crusade for plain English in investordocuments. It was a noble first step that hasbeen carried on by both Harvey Pitt and BillDonaldson. During my time at the Commis-sion, I hope to advance this cause still further,so that ultimately every communication aimedat retail investors is so free of jargon andlegalese that it could pass muster with theeditors of the Money section of USA Today.

Accounting complexity

When it comes to giving investors the protec-tion they need, information is the single mostpowerful tool we have. It’s what separatesinvesting from roulette. But if the SEC is trulyto succeed in helping investors with moreuseful information, we’ll need one moreingredient: an all-out war on complexity.

It is, of course, true that a complex worldoften requires complex solutions. And cer-tainly, there are desirable states of complexity—the ones that arise from a thing’s intrinsicnature: DNA. A snowflake. Encryptionalgorithms. There, the complexity is essentialto the function. But it’s the contrived, artificialcomplexities that cause the problems—intricacy without function. Winston Churchillsaid it best: “However beautiful the strategy,you should occasionally look at the results.”

That, Mr. Chairman, is what we’re now doingat the SEC. We’re looking at results from thevantage point of the ordinary investor. Andwhat we’re finding is that, in many cases,we’re not getting the right results. The com-plexity of the disclosure mandated by ourrules too often adds nothing to function.

It is not just public companies that sometimeshave difficulty using plain English. Ouraccounting rules and regulations also cansometimes be complex and difficult tointerpret. And when the rules are difficult tointerpret, they may not be followed very well.And if the rules aren’t followed very well,then intentionally or not, individual investorsinevitably will suffer.

Not surprisingly, users of financial statements—investors and regulators alike—are lookingfor more balance in making financial reportingcomparable and understandable. Preparersand auditors are also looking for standardsthat are easier to understand and implement.

The first step is to systematically re-addressspecific accounting standards that do notprovide the most relevant and comparablefinancial information. Examples of standardsin need of reworking for this reason includeconsolidations policy, certain off-balancesheet transactions, performance reporting,and revenue recognition.

The second task is to codify Generally AcceptedAccounting Principles [GAAP]. The codifi-cation will be a comprehensive and integratedcollection of all existing accounting literature,


and it will be organized by subject matter.The aim is to provide a single, easily accessiblesource for all of GAAP. A dividend of thisproject is that it will provide a useful roadmapto those areas most in need of simplification.

A third priority is to stem the proliferationof new accounting pronouncements frommultiple sources. We are encouraging the FASB[Financial Accounting Standards Board] toconsolidate US accounting standard settingunder its auspices, and to develop newstandards more consistent with a principles-based, objectives-oriented system.

The final element of this strategy is tostrengthen the existing conceptual frameworkfor US GAAP in order to provide a moresolid and consistent foundation for thedevelopment of objectives-oriented standardsin the future.

Making financial reporting more user-friendlygoes far beyond the work of the FASB. Weedingout the counter-productive complexity that

has crept into our financial reporting willrequire the concerted effort of the SEC, theFASB, the PCAOB [Public Company Ac-counting Oversight Board], and every marketparticipant. This cannot be a one-time effort;we will have to commit for the long term. Butit will be well worth it.

Conclusion

Mr. Chairman, members of the Committee—thank you for your interest in these vital issues.Each of the four initiatives I have outlined ispart of an overall strategy to make theindividual investor—the average American—the ultimate beneficiary of all that we do atthe SEC. Our agency has for many yearsproudly worn the badge of the “Investor’sAdvocate.” In the months and years ahead,we are pledged to rededicate ourselves tothat mission.

© C Cox 2006


OMB Watch reports the following:

The House Government Reform Committeehas reported out two bills relevant to regu-latory policy: one to facilitate compliance byencouraging agencies to draft regulations inplain language, and another to bring theGovernment Accountability Office [GAO] intothe process of regulatory reviews.

Regulation in Plain Language Act of 2006

The committee reported without amendmentH.R. 4809, the Regulation in Plain Language Actof 2006, which requires that federal agencyrules be written in plain language. A bipartisanbill …, the Regulation in Plain Language Actwas designed to make regulation complianceand enforcement more effective and to encour-age clarity in rulemaking. The use of plainlanguage is expected to reduce the businesspractice of using statutory ambiguity in orderto avoid regulation and save multiple partiesmoney in their attempts to interpret federalregulations.

The bill would amend the Paperwork ReductionAct (Title 44, chapter 35 of the US Code) tocreate general standards for plain languageand create a new staff position in the agenciesto encourage regulatory drafting in plainlanguage. The new standards define plainlanguage as clear, straightforward language,understandable to the intended reader. Thebill encourages the use of short phrases,grammatical clarity, and visual aides.

Backers of the bill depart from the usualanti-regulatory trend by seeking to makecompliance less costly without reducing theprotections that the public enjoys. Proponentsargue that when federal regulations are clear,

enactment is sure to increase, along withhigher expectations that allow for stricterenforcement. The shift encourages fairness,allowing a greater proportion of the popu-lation to understand regulations, without theneed for expert interpretation. The goal is tocreate concise yet intelligent regulations thatare easy enough for everyone to follow andclear enough to reduce manipulation oravoidance.

Truth in Regulating Act Amendment

The committee also reported out a bill toamend the Truth in Regulating Act. The Truth inRegulating Act of 2000 authorized a pilotproject in which the Government Account-ability Office would, upon request, reviewagencies’ regulatory impact analyses foreconomically significant rules. The projectwas never funded, and GAO never conductedany reviews.

H.R. 1167 would amend the Truth in RegulatingAct to make the pilot project permanent. Theamendment would simply strike the “pilotproject” heading and institute the authoritypermanently.

In committee mark-up, the bill was altered byRep. Henry Waxman (D-CA), to limit theauthorization to only 3 years, dependent onfunding of no less than $5 million per fiscalyear. The bill was reported out with thisamendment, and the title will now read, “Abill to amend the Truth in Regulating Act toauthorize an additional period of 3 years forthe pilot project for the report on rules.”

This is a slightly edited version of the original. For thefull original text, go to: http://www.ombwatch.org/article/articleview/3467/1/308?TopicID=1

Legislative update:Plain language and government accountabilityoffice regulation review


Christoph Hafner

In legal writing, whether it be legislation, aletter to a client, or as in this case, an opinionfrom a barrister to a solicitor, it is importantthat the writer bear in mind the intendedaudience. The coherence of a text dependsnot only on how it is written, but also on howit is interpreted by the reader1. And differentreaders may impose different coherent readingson the same text, so that what ‘makes sense’to one person may not ‘make sense’ to another.

In the process of writing, we commonlyassume some shared background knowledgeon the part of our reader. Where these assump-tions hold, this will facilitate communication.However, the same assumptions can lead todifficulties in communication for some readers.Legal writing is often especially challengingbecause there can be a wide variety of possiblereaders, each with different expectations.

Thus, it is helpful for writers to be aware ofthe full range of assumptions that they makeon the part of their readers. In this preliminarystudy of barristers’ opinions in Hong Kong, Ihighlight some of the categories that barristersdraw on when writing opinions, and showhow barristers rely on their readers to recog-nize those categories, draw inferences andconstruct coherent meaning. The study drawson six opinions written by five differentbarristers in Hong Kong, who responded tothree different sets of (made up) instructions.The opinions were originally requested as ameans of informing teaching practice at CityUniversity of Hong Kong.

Background

A solicitor typically requests an opinion froma barrister when the solicitor has a case withwhich he or she wants specialist help (thoughthere may be other reasons)2. Normally thesolicitor will draft a set of instructions to thebarrister, summarising the facts of the matterand asking a number of questions. The solicitor

will also enclose any relevant documents andfiles. The barrister’s task is to respond to theinstructions by analyzing the situation andanswering the questions. Thus the basic pur-pose is to provide the solicitor with advice onhow to proceed in a given case, and how bestto serve the interests of the solicitor’s lay client.

Barristers participating in this study indicatedthat they felt they were primarily writing fortheir instructing solicitor. Nevertheless, theyall referred to the possibility of the opinionbeing read by the lay client as well. Thisraises the question: how accessible are theseopinions for these two different kinds ofaudiences?

As suggested above, this depends to a largeextent on the kinds of assumptions thatbarristers make of their readers. Barristerscommonly assume that their reader has:

1. an understanding of the fact situation

2. an understanding of basic legalreasoning and conventions

3. an understanding of basic legal principles.

Example extract

It will be helpful to discuss these assumptionswith reference to a concrete example. I havechosen the following 3-paragraph extract fora number of reasons. Firstly, it is one self-contained analysis of a legal issue. Secondly,it illustrates a number of the assumptionsmentioned above. Thirdly, while on the wholeit is well-written, it illustrates possible problemsthat can arise when the writer assumesknowledge on the part of the reader.

The example is taken from an opinion that isroughly 900 words long and written on asimple problem in conveyancing. The factsinvolved a dispute between a landlord (NewWave Ltd.) and would-be tenant (Hair Flair).The issue addressed below is whether thetenant can enforce an oral agreement for alease based on acts of part performance.

Understanding barristers’ opinions: a discourse analytical perspective


One way of understanding this is by lookingat the rhetorical strategies or moves3

employed by the writer.

Preliminary comments

At a glance, these three paragraphs seem toread rather well. Although the sentences areon the lengthy side, they are not overly long.Each paragraph is unified and makes a clearpoint, with reference to relevant law andfacts.

The example demonstrates a fairly typicalinstance of legal problem-solving at work.The writer raises the legal issue in theheading ‘part performance’. The question tobe decided is this: is there sufficient partperformance for Hair Flair to enforce its oralagreement? Note that this is not madeexplicit at any stage and the reader mustinfer the question. In paragraph 11 the writerstates the relevant rule in broad terms. Thenin paragraph 12, he cites a relevant caseauthority, describing its circumstances andholding. Finally, in paragraph 13 he gives hisopinion on the likely outcome in this case.

The question I would like to examine is: whatassumed knowledge must one have, in orderto be able to construct a coherent interpreta-tion of these three paragraphs?

Approach to the problem

In resolving this problem the writer adopts arule-based (as opposed to a ‘relational’)

each clause. In this case the salient themes ineach paragraph (italicized) refer mostly toprobabilities and legal rules. For example‘even if I am wrong…’ (arguing in the alter-native), ‘section 3(2)…’ (authority for rule),‘an action’ (substance of rule).

The writer’s underlying assumption is thatthe reader will share this approach. Thiswould be a safe assumption where the readeris an instructing solicitor, but perhaps not inthe case of a lay client.

Rhetorical structure—rules

In addition, the writer assumes that the readerwill understand the underlying rhetoricalstructure of the opinion. In order to correctlyinterpret the opinion, the reader must be ableto understand how each paragraph advancesthe argument.

Paragraph 12 is likely to be problematic tosome readers. By beginning ‘In Chan Yat…’the writer announces ‘I am now going to tellyou about an analogous precedent, ChanYat.’ The reader is expected to infer that thisillustrates the relevant legal principle and willserve as a point of comparison to the client’ssituation.

approach4. Inother words,what may havebegun as astory of humanrelationships is(re)constructedhere in the lan-guage of rights,duties and legalargument. Thisbecomes clear ifwe examine thethematic struc-ture of eachparagraph5.Analyzing the-matic structureallows us togain insight intothe topicalisedinformation in

Part Performance

11. Even if I am wrong regarding the effect of thecorrespondence, section 3(2) of the Conveyancingand Property Ordinance provides that an actionmay still be brought on the oral agreement ifthere has been an act of part performance byHair Flair.

12. In Chan Yat v Fung Keong Rubber Manufacturing[1967] HKLR 364, the fact that the plaintiff (thelandlord) had stopped trying to let the premises,completed the building of the factory, permittedthe defendant to install machinery and drill awell, and paid the cost of electrical installation,were part performance.

13. Although our case is less strong, I believe that thereis a reasonable chance that Hair Flair can demon-strate that the fitting out plans sent by HairFlair and approved by New Wave (documentsix and x) constituted sufficient partperformance.

Raising an issue (implicit)

Stating a rule/principle

Stating a rule/principle

Giving an opinionReasoning (implicit)


This strategy is, of course, extremely commonin legal argument. However, in order tointerpret this correctly, the reader must under-stand the common law convention that courtsare bound by their previous decisions, wherethe facts of the case are sufficiently similar.Again this is a safe assumption with a legalaudience, but must be treated with care wherethe audience is the lay client.

In fact, the real purpose of paragraph 12 is todefine (by analogy) what may be consideredto be part performance. Yet the words ‘partperformance’ are the last 2 words of the para-graph! In addition, the paragraph is presentedas a kind of narrative, rather than as anexplicit definition. The paragraph would moreclearly reflect its purpose if it began ‘Partperformance can include…’. The reader isexpected to infer the general principle fromthe examples given. As this kind of reasoningby analogy is a particular feature of legalargument, I would expect certain readers tohave difficulty with this.

Rhetorical structure—reasoning

Paragraph 13 also demands considerableinferential work on the part of the reader.The purpose of paragraph 13 is to give anopinion on whether there is part performancein the current case. An informed readerwould probably also expect to see explicitreasons for this opinion6.

Somewhat surprisingly, the writer appearsonly to be stating his opinion and brieflyreferring to the facts. The reader is expectedto infer that the circumstances of the presentcase are similar to the precedent described.This is all the more surprising given that thewriter begins with a contrastive ‘Althoughour case is less strong…’.

This leaves open the question: on whatgrounds does the writer believe that the layclient’s situation is similar to the precedent?The writer does not explain the relationshipbetween facts and law. Rather, it is the readerwho infers this relationship, based on theirknowledge of the facts and of the law.

The writer relies heavily on the reader toconstruct meaning here. A lay client withlittle knowledge of the law would probablyneed to have this part of the opinion ex-

plained to them. Indeed, barristers in thestudy suggested that they expected instructingsolicitors to perform this function. However,in this case, the instructing solicitor may haveto engage in some guesswork too. By failingto go into the details of his reasoning, thewriter has failed to communicate his ownassumptions about the facts. This wouldpossibly make it difficult for both the instruct-ing solicitor and lay client to interpret theopinion with certainty.

Conclusion

This analysis has highlighted some of theassumptions that barristers make in writingtheir opinions. I have tried to show that theseassumptions can make the opinions lessaccessible to a lay audience, and occasionallyalso to a legal one. The study highlights thedifficulty of writing for multiple audiences:reference to assumed common knowledgecan facilitate communication with some buthinder it with others.

The study also raises an interesting questionfor plain language practitioners. At whatlevel should plain language practitionersfocus their efforts? While there is much to begained by making texts more accessible at aword and sentence level, this effort is unre-warded if the underlying rhetoric and logicof a text serves to exclude anticipated readers.

© C Hafer 2006

Endnotes1 See Fairclough, N. (1992), Discourse and Social

Change (Cambridge: Blackwell).2 See Inns of Court School of Law (2002), Opinion

Writing (Oxford: Oxford University Press), pp 40–41.3 See Bhatia, V. K. (1993), Analysing Genre: language

use in professional settings (London: Longman).4 See Mertz, E. (1996), “Recontextualization as

socialisation: text and pragmatics in the lawschool classroom”, in M. Silverstein & G. Urban(Eds.), Natural Histories of Discourse (Chicago:University of Chicago Press), pp 229–249.

5 See Halliday, M. A. K. (1985), An Introduction toFunctional Grammar (London: Edward Arnold).

6 See above, note 2, at p. 51

Christoph Hafner lectures in linguistic and law at CityUniversity, Hong Kong. He is researching his Ph Dthesis on the language of barristers.


Kathryn O’Brien

This article is a summary of a lengthy study oflegal language, made by four senior law studentsat the University of Sydney. The study receivedthe highest grade possible at the University.Clarity readers may be interested to read thissynopsis of the students’ findings. Ed.

Background

This article is a summary of research under-taken by four final year law students at theUniversity of Sydney Law School. Theresearch was part of the course requirementsfor one of the elective subjects at the LawSchool. We researched: (1) whether students,academics and legal practitioners in Sydneyfeel that there is an emphasis on plainlanguage drafting at law school; and (2)whether any such emphasis (or lack of it) atuniversity level has an impact on the waythat law students communicate with clients(or with laypersons generally) on graduation.

Our research comprised both empirical andanecdotal elements. It involved distributingshort written surveys and interviewingpeople in person. Because the research wasunfunded, our resources were limited. Only arelatively small sample of people could beinterviewed, and so the results of our studycannot be described as definitive. Never-theless, we were able to interview and surveyenough people to discern some consistentthemes.

The people who participated in the study

Fifty law students, 11 academics and 13 legalpractitioners participated in the survey. Weasked them to respond to a series of shortyes/no questions.

The students came from four leadingAustralian law schools: the University ofSydney, the University of New South Wales,Macquarie University, and the University ofTechnology, Sydney. The majority—52%—

were from the University of Sydney. All werein their final or penultimate year of study.

The legal practitioners were from both largeinner-city practices and smaller suburbanpractices in Sydney. The large practicesincluded some in the top tier of commercialpractice in Australia; they are large firmseven by world standards. The smallerpractices tend to specialize in conveyancing,family law and probate.

The 11 academics were from the Faculty ofLaw at the University of Sydney. Their fieldsof expertise include Real Property, Torts,Corporate Law, Jurisprudence andInternational Law. Most of the studentswhom we surveyed from the University ofSydney had been taught by these academics.

An explanation of ‘plain language’

The survey questions contrasted what wedescribed as ‘plain language’ and ‘legaljargon’. In an attempt to clarify what wewere seeking to test, we attached a briefexplanation of our understanding of thoseterms:

When we use the term ‘legal jargon’throughout this survey, we are referringin a broad sense to the opposite of what isreferred to as plain English drafting. Weare referring, for example, to the use ofLatin phrases (eg, ‘prima facie’, ‘mensrea’, ‘locus standi’, etc), and in a moregeneral sense to the use of complex, arcanewriting styles that can be used to artic-ulate difficult legal arguments, but whichare generally thought to be more difficultfor a layperson or client to understandthan ‘plain English’.

Of course, our survey was not the first of thiskind. Michèle Asprey had conducted a surveyof New South Wales solicitors some yearsearlier. In contrast to our approach, shedeliberately avoided defining ‘plain language’.She wrote: ‘it was agreed that there was no

Plain language:

a survey by Sydney law students


one form of plain language, and that it wouldbe counter-productive to confine ourselves toone rigid definition.’1 Joseph Kimble had alsosurveyed lawyers’ attitudes to the use of plainlanguage.2 Kimble produced samples of tradi-tional legal writing that had been rewritten inplain language. Our approach was less sophis-ticated than Kimble’s. However, we thoughtthat a short explanation of ‘plain language’and ‘legal jargon’ was useful for the purposesof our small study.

Results of the surveys

We found a considerable disconnect betweenthe responses given by students and theresponses given by academics. While 86% ofthe academics surveyed felt that they encour-aged their students to use plain-languagewriting techniques, only 51% of the studentssurveyed agreed that this was the case. Ofthe students, 90% felt that the law readingsset by their lecturers were dense with legaljargon. Although 74% felt that they were notencouraged to adopt legal jargon in classroomdiscussion, approximately half felt that theywere expected to use legal jargon in theirwritten work order to perform well in univer-sity assessments.

By contrast with the students (who felt therewas little instruction in plain-languagewriting techniques at university level), 86% ofthe legal practitioners surveyed felt that therewas a significant emphasis on plain Englishcommunication in their professional work.Respondents from large commercial firmstold us that instruction in the use of plain-language forms part of their in-house trainingprograms, both for graduates and for moresenior solicitors. It was also clear, however,that the resources of smaller firms do notallow for in-house training programs. Onerespondent, a sole practitioner, noted that hehad received guidance on the use of plainEnglish through attendance at a ContinuingLegal Education seminar.

The students’ perception of little or no emphasison plain-language drafting at university levelperhaps reflects the reality that few lawschools offer a dedicated course on legalwriting. Some prospective employers see thisas unfortunate. Others see it as an advantage:they can instruct graduate lawyers as theysee fit, working with a ‘clean slate’ as it were,unhindered by any teaching in this area atuniversity level.

Interviews

In addition to written surveys, we conductedinterviews in person with a small number ofacademics, practitioners and students.

Academics

One of the academics we interviewed wasProfessor Peter Butt of the University ofSydney. He said that the work he does onplain-language drafting tends to be morewith practising lawyers and parliamentarydrafters than with university students.Professor Butt has, in the past, run stand-alone legal drafting courses for students.However, he told us, changes to the LawFaculty’s curriculum made teaching a stand-alone course of this kind impracticable. Hetold us that he does, however, weave legaldrafting, and particularly the techniques ofplain language, into two optional property-related courses at the University of Sydney:Advanced Real Property and Conveyancing.The students who do those courses get atleast an introductory exposure to the tech-niques of writing in plain English. ProfessorButt doubts whether other law studentsreceive specific instruction in legal writingtechniques. The University of Sydney untilrecently had a compulsory course called“Legal Research and Writing”. However, thelegal writing component was removed fromthe course outline, and the subject is nowcalled “Legal Research”. This contrasts withcourses at American law schools, where legalwriting is generally a compulsory subject forfirst-year students. Professor Butt consideredit a great pity that the University of Sydneyno longer offers a course in legal writing. Inhis view, this is partly due to a culture amongacademics that the techniques of clear writingare not worthy of academic study, and there-fore are not something academics shouldteach.

Professor Butt noted that while few legalpractitioners in Australia see themselves asbeing “against” plain language, this does notnecessarily mean that in practice they actuallyuse what we might describe as ‘plain English’.This seems also be the case with legal aca-demics. As already mentioned, while theoverwhelming majority of academics whoparticipated in the study felt that they encour-age their students to use plain English, onlyhalf of their students felt that to be the case.


Practitioners

Two partners from the Sydney office ofMallesons Stephen Jaques (one of Australia’slargest law firms) agreed to be interviewed bythe group. Their responses indicate that thefirm dedicates considerable resources totraining its lawyers to communicate in plainEnglish. Jason Watts, a partner in the Mergersand Acquisitions group, noted that: “ourclients require us to take complex structuresand document them in the simplest way thatwe can. That’s because they need to be under-stood by commercial people. While our clientsare generally sophisticated and understandthe complexities behind these structures, theynevertheless like to see them documented in asimple and intelligible way.”

Nuncio D’Angelo, a partner in the FinancialServices group, notes that in his experienceplain language drafting has changed the lifeof both lawyers and clients. “Clients get abetter appreciation of what we do; it’s not justa mysterious black art (which can be a realrisk in financing transactions).” D’Angelo hasseen a particular benefit for young law grad-uates. He remembers from his early days inthe law a perception that lawyers had tospeak in legal jargon to be thought of as clever.Adopting plain language “has broken downbarriers, both between lawyer and client, andbetween lawyer and lawyer—and betweensenior and junior lawyer, teacher and pupilif you like.” At Mallesons Stephen Jaques,D’Angelo notes, lawyers receive instructionin plain-language drafting techniques in thefirm’s formal training programs from theoutset, and this is reinforced by a cultureamong the partners and senior lawyers thatis very supportive of plain English.

Students

The group conducted a small focus group offour law students, three studying at theUniversity of Sydney and one at the Universityof New South Wales. One student noted thatfor an Equity assignment at the University ofSydney in 2005, students were asked to writetheir paper twice, with two different audi-ences in mind. Firstly, the students had towrite an advice on technical legal points asthough directed to another lawyer. Secondly,the students had to write the same piece ofadvice addressed to a layperson. The studentfelt that this task emphasised the difference

between communicating in ‘plain English’and ‘legal jargon’. Interestingly, however, thestudent’s response indicated a perceptionthat the exercise encouraged students toadopt plain language when correspondingwith clients, but to maintain ‘legalese’ withother lawyers. Apart from this one example,the students did not mention having receivedany instruction in legal writing.

Conclusions

One of the most interesting things to comefrom the study was that legal academicsoverwhelmingly think that they encouragetheir students to write in plain English, butthat their students disagree. Students seelegalese as a barrier to their understandingof the law, and practitioners see it as a barrierto their relations with clients. The argumentneeds to be put that instruction in plain-language techniques should be a properly-funded aspect of university education. As inAmerican law schools, courses in legal writingshould be mandatory for all students. Effectiveinstruction in legal writing is not somethingthat should be left for the most part to thetraining programs of a student’s futureemployer.

© K O’Brien 2006

Endnotes1 Michèle Asprey, ‘It’s Official: New South Wales

Solicitors Favour Plain Language’ (March 1995)32 Clarity 3 at 3.

2 Steve Harrington & Joseph Kimble, ‘Survey: PlainEnglish Wins Every Which Way’ (1987) 66Michigan Bar Journal 1024.

Based on research in a course on SociologicalJurisprudence, by Kathryn O’Brien, Antonia Garling,Jessica Saya and Jason Fitch.

Kathryn O’Brien is a final year law student at theUniversity of Sydney. She is currently researchingjudicial attitudes to plain language, for which she hasinterviewed 20 of Australia’s most senior judges. Thissurvey is the first of its kind in Australia. Kathryn ishoping to publish the results of the survey next year.


Speech by Lord Justice RixClarity seminar at Denton Wilde Sapte10 October 2006

I am very grateful to the organisers of thisevent for bringing me face to face with thesubject matter of this talk.

At first I received the invitation with somepleasure: it was, I thought, a compliment.But a moment’s further reflection showed methat it could be no such thing, for the simplereason that I could hardly think of anotherjudge less suitable or less qualified to talk ontonight’s topic. Not for me the brevity andwit of Sir Christopher Staughton. My judg-ments are known, if at all, for their length.Not for me the pithy style and snappysentence of a Denning: I was educated foryears to reproduce the complex sentence ofCicero, a style of sentence so long it wascalled a “period”!

And quite apart from all that, what do Iknow, what experience do I have, in thedrafting of contracts? In truth, that difficultand creative work is performed almostexclusively by solicitors: barristers and judgesspend their time, construing but unconstruc-tively, merely shaking their heads over theensuing difficulties. And so I am beginning, Isuppose, with an apology.

However, as I said in beginning, I am gratefulfor being set the task of confronting face toface, perhaps for the first time so far as I amconcerned, the virtues or vices of the use ofplain English techniques in the drafting ofcontracts.

And as I warmed to my theme in preparingfor this event, I managed to make suchprogress that my talk of, I suppose, a coupleof hours or so has been reduced to moremanageable proportions. So don’t look tooalarmed. It will be all right. I hope.

So, first, what are plain English techniques?They are such things as the use of direct andeasily understood language, convenientlyand logically organised, in short sentences,avoiding complexity, redundancy, archaisms,legalese, jargon and pomposity—how’s that fora selection of complex and Latinate nouns?Such techniques are important not only incontracts, but also in legislation, in thedrafting of official forms, and all kinds ofcommunications.

My talk will concentrate on the context ofcontracts. I will give you an example of theold and the new. Here is a traditional clause:

“Upon any such default, and at any timethereafter, Secured Party may declare theentire balance of the indebtedness securedhereby, plus any other sums owedhereunder, immediately due and payablewithout demand or notice, less any refunddue, and Secured Party shall have all theremedies of the Uniform CommercialCode.”

Here is the plain language version:

“If I break any of my promises in thisdocument, you can at any time demandthat I immediately pay all that I owe.”

Now, the plain language campaign is onlysome 30 years old in the law. Traditionally itis said to originate in the decision taken in1973 by an American bank, now metamor-phosed into Citibank, to rewrite its standardcustomer consumer loan note. This rewritingturned out to be a tremendous success: itincreased the bank’s market and at the sametime reduced its litigation. That was a goodstart.

Since then lawyers and legislators throughoutthe world have encouraged the use of plainlanguage techniques. In the United Statesthere is legislation, for instance, that warran-ties, if they are to be enforceable at all, must

Plain language in legal agreements: is it safe?


be written in “simple and readily understoodlanguage”. In Australia there is case law thateven the signed disclaimer “I have carefullyread and understood this contract” did notavail the other party.

As it is, the demand for simplicity and thecomplaint that lawyers obfuscate go backmuch further. Cervantes said: “But do notgive it to a lawyer’s clerk to write, for theyuse a legal hand that Satan himself will notunderstand”. Judge Learned Hand warned:“The language of law must not be foreign tothe ears of those who are to obey it”. AndDean Rodell of Yale law School cracked:“There are only two things wrong with mostlegal writing. One is its style. The other is itscontent”.

There is also recognition that simplicity,although desirable, is difficult. There is aproverb that says: “Hard writing makes easyreading”. Leonardo da Vinci said: “Simplicityis the ultimate sophistication”. He may nothave been talking about writing, but it is truealso about writing. And we would all do wellto remember what Shakespeare said, that“Men of few words are the best men”. (I feelinclined to sit down at this moment.)

So, how is this to be applied to the writingof contracts, and, in particular—this is thequestion that has been posed to me, for you—is it safe to leave behind what is sometimesdescribed as the “tried and tested” languageof contract forms and precedents in order tostrike out for the brave new world of plainEnglish?

Is it safe? Well, what does one mean by safe?The dictionary will tell you that safe can mean“not exposed to risk”, or “unenterprising”, or“based on good reasons”. In other words wecannot answer the question without consid-ering risks and rewards, and the ratio betweenthem.

What are the rewards? As I understand theliterature, they have come to be well established.Plain English improves relations with theclient, because the language of the documentsis more open and transparent, and lessobscured by the professional jargon of thelegal priesthood. Plain English contracts arealso more marketable with the public, whichis of particular importance in the consumercontext. They involve less queries, fewer dis-putes, and less litigation. As a result, they

entail less time and expense. An example fromthe United States: according to a Ford MotorCredit press release, borrower complaintsand questions decreased by 50% when thecompany introduced a plain language ver-sion of their vehicle financing contract.

These rewards are of particular concern tothe lawyer’s client, but perhaps they mayseem less enticing to the lawyers. I wouldsuggest, however, that lawyers do not succeedby giving their clients an inferior service: and,as the plain English project gathers pace andstrength, so lawyers who fall behind in it willsuffer rather than prosper. Their clients willcome to expect a service which they can getelsewhere.

What, on the other hand, are the risks? Again,as I understand the literature, there is a schoolof thought which says: our precedents aretried and tested; they reflect the wisdom ofages, their language reflects the jurisprudenceof the courts. To change runs the risk that oldproblems which we had learned to overcomewill arise again, or new problems will becreated by the new language. We will notreduce disputes and litigation but createtrouble where there was peace. That will beof no assistance to our clients; and it maycause severe problems to us, the lawyers,who may be susceptible to claims in profes-sional negligence.

How do I, as a judge, react to these scenarios?I emphasise the words “as a judge”, for I lackthe direct in-house experience of lawyer orclient.

I would start by making what I consider to bethree important points.

The first is what I call “horses for courses”.Not all contracts are of the same type. I willidentify three basic categories. (Of coursethere are more, and there are hybrid categoriesas well.) Thus there are consumer contracts,which are written for the consumer by massmarketing companies, like banks, insurancecompanies, and consumer credit companies.Next, there are commercial contracts, whichare on standard trade forms, with or withoutadditional clauses, like charterparties and billsof lading, and commodity contracts. Thirdly,there are bespoke contracts, which may alsocontain within them some boilerplateclauses—sometimes a lot of boilerplateclauses, but for all that the contracts arebespoke.


In the first category, consumer contracts,clarity and understandability among thepublic at large are particularly important.Here simplicity and the absence of jargon arereal aids to marketing and the avoidance andresolution of disputes. It is of course particu-larly important here to remain abreast oflegislative changes; and to write contracts inways which will withstand scrutiny underfair contract terms provisions.

Commercial standard forms, on the otherhand, are not so much a marketing tool assomething promoted by trade organisations.They are in general use as an aid to businessin the trade. There is more room here forjargon, which in any event is likely to be tradejargon rather than legal jargon. A charter-party is perhaps a decent example of such acontract type. It is a pretty concise and busi-nesslike contract in its language, and its basicclauses have had quite a going over in thecourts, which is useful. Such contract formscannot easily be changed on a unilateralbasis: it takes an industry-wide effort to bringthem up to date, if they need bringing up todate. And in the meantime such forms tendto accumulate an accretion of additionalclauses, which are often drafted by brokersrather than lawyers, and admittedly frequentlylead to disputes. It is not easy to involvelawyers at the point of contract, because inthese commercial contracts the deal is madeby the brokers and the clients: the lawyersare not involved. The deal is made there andthen by email or telex, or on the telephone,and this is, in lawyers’ terms, lay drafting.

Finally there are the bespoke contracts,which might arise in any commercial field,and these raise all the problems of the othercategories, but here lawyers tend to have alarge input. A commercial lease is an exampleof a standard form of contract which is usu-ally negotiated between lawyers, and alsocontains a lot of boilerplate clauses. So it is ina way both a bespoke contract and a standardcontract, and it certainly involves lawyers inits negotiation.

And so, the consumer contract has to beprepared well in advance for commercialexploitation, to a general public of consumers,for whom legislature and courts have parti-cular concerns; the commercial standardcontract is a matter for trade negotiation, butis overlaid by broker dealing; and the bespokecontract raises problems of all kinds.

That was my first important point. Thesecond important point I want to make isthat reviewing or rewriting contracts torender them into plain English is very hardwork. It cannot be done without preparation.It cannot be done quickly. It therefore cannotbe a cheap process. In 1987 the Governmentbegan a five-year programme to rewrite 5,000pages of tax legislation in plain English. Thatfive-year programme is still in being, and thecost so far, as I understand it, is somethinglike £26,000 per page, still rising.

I quoted earlier the saying “Hard writingmakes easy reading”. I want to emphasisethe “hard writing” aspect of that proverb.The process is indeed a hard one. You have toknow what you want to say. As Lord Binghamsays in his foreword to the new edition ofMark Adler’s Clarity for Lawyers: “You cannotwrite clearly unless you know clearly what itis you want to say”. A beautifully crafted andpungently clear sentence. But knowing clearlywhat you want to say is hard work. Youhave to know what you want to say; andwhy; and what the law is, or might turn outto be; and why the precedents say what theysay, and whether those reasons, if they stillexist, are good or bad. I do not want in anyway to minimise the difficulty of that task forthe reviewing lawyer—a task that cannot beundertaken lightly, or by drafters who areinexperienced or untrained in their task, orrushed in time. In such work, there is plainlyroom for error.

Who will pay for such work? If, as in the caseof the Citibank or Ford Motor rewrites, aspecific client commissions the task, it will beproperly rewarded. But if the preparation isuncommissioned, for instance work on a firmof solicitors’ contract precedents, then there isan element of faith in the future. I am sure,myself, that that faith is justified. The point Iwant to make is that you cannot expect thegenie of plain English to come on the instantout of the bottle marked “Drink Me”.

My third major point in answering the risk/reward question is that it is important to beclear-eyed about the causes of disputes. Notall contractual disputes arise out of difficultiesof language, however they may be dressedup. Of course, nearly all contractual disputesare dressed up as difficulties over language—but I am making a different point. They donot in truth arise out of such difficulties.


Disputes occur for all kinds of reasons:because markets have changed and disap-pointed expectations; because one or otherparty fails financially; because one partywishes to get out of its contract; because eventshave shown that the contract is unbalanced;because of misfortune; because it is simplyimpossible to anticipate everything; becauseof non- or misperformance.

Can clarity in drafting avoid all these disputes?In my opinion, no. But, of course, the lessroom there is for argument in matters of con-struction of the contract, the easier it may beto avoid or settle such disputes, or to renego-tiate terms, when they arise. It must also beremembered that many contracts are onlyconcluded because a penumbra of uncertaintyor ambiguity has been allowed to remain inthe drafting. Disputes which arise out of thatcause cannot be avoided by clarity in drafting:the whole point of the contract being success-fully concluded is that a certain amount ofambiguity has been built into it. So one mustnot claim too much for the techniques of plainEnglish.

Having made those three points, I am now ina position to answer the question whether itis safe to bring plain English techniques tobear on so-called tried and tested contractprecedents. It is a ratio of risk and reward. Itcannot be said that the hard work necessaryto achieve the rewriting will be accomplishedfaultlessly. And, however immaculate thedraftsmanship, it cannot be guaranteed thatnew wording will not create its own problemsand its own disputes.

An example which comes to mind—althoughit is not a contractual one, it arises in acommercial setting—is the comparativelymodern 1996 Arbitration Act. That Act was along time in gestation; it was given the mostcareful thought; it had the most prestigious ofdraftsmen, including Lord Steyn and LordSaville; it was drafted in a modern and user-friendly style. Nevertheless, it has engenderedquite a bit of litigation, for all of the reasonswhich I have touched upon.

Even so, the rewards are, I think, great. I havestated them earlier, and I believe them to begenuinely claimed, although I cannot ofcourse speak from personal experience. Intui-tively, however, they make good sense to me.

And so the balance needs to be struck. Itseems to me that, although one cannot elimi-nate all risk, and certainly cannot do sowithout hard work and intelligence, thebalance is well on the right side of the line.Like our homes, and our clothes, and every-thing about us, there is a constant need formaintenance and refurbishment. You cannotrely on the old for ever; you cannot keep onpatching; from time to time you have to havea proper overhaul. That is what plain Englishis about. And if you do not carry out that over-haul, then the risk of simply carrying on inthe old way is greater than the risk of under-taking the new. And if the work is done withcare and intelligence, the risk of error whichmight involve a claim of negligence is likely tobe small. And it is there in any event: and isperhaps all the greater where you followunthinkingly in an old path, rather thanrethink everything in a fundamental andintelligent way.

A few years ago, I visited a country in a stateof semi-war, accompanied by others fromLondon. Our visit was a private one, but forour protection on occasions we were in mili-tary hands. Travelling down a road one dayin a military armoured jeep, my companionwith me in the back seat of the jeep asked thedriver if it was safe. The driver looked at hiscolleague who had his machine gun restingon his knee, and who looked back at thedriver. It was the driver who spoke. “Safe?Yes, it’s safe. Not safe, safe. But safe.” Thatmay be a possible comment on the question Ihave posed.

The sponsors of this talk have suggested tome certain other questions which I might liketo consider: such as the use of “must” ratherthan “shall”; such as whether the style ofdocuments coming before the judges haschanged over the years; and such as whetherplain language is harder or easier to interpretthan complex language. But I would prefer, ifI may, to leave such issues, or any others thatyou may have, to question-time after I havesat down.

In the meantime, I think I would like to end bypropounding my own Ten Commandmentsfor the drafting of contracts. To some extentthey reflect the insights of plain English; butaltogether they reflect my own experience inpractice and for the last 13 years or so on thebench. So here goes:


1. Be clear in your own mind about whatyou are seeking to achieve, includingabout the nature of the contract youare drafting. Different contracts requiredifferent techniques.

2. Use short sentences, or at any rate asshort as the context will allow. I thinkEinstein praised the virtues of simplicitybut also said “don’t be more simplethan is necessary”. It is best, of course,if a sentence is concerned with only onethought at a time.

3. The clarity of your contract, and theease of construing it sensibly, will beincreased if you state in the contract itsfundamental purpose or purposes. Thatwill assist in construing the problemsthat might arise.

4. Use definitions accurately to assistin concise drafting. Check that thedefinition in question works in eachplace where the defined word orphrase is used. (It is too easy to thinkyou have got a good definition, and soyou slot it in here, there and every-where and then, if you were to readback the definition in full, in the placewhere you used the word or phrasewhich is the handle for your definition,you would find that things are goingwrong.)

5. Clarify in your own mind the role ofconcepts or variables discussed in thecontract. (I think you know what Imean by a concept on which thecontract may play, or a variable—itmight be a time variable or it might be avariable of some other kind. Contractsplay with these variables and concepts,and it is important that you are veryclear in your mind what the role ofthese concepts are, particularly whenthey might come together, when youhave two variables acting upon oneanother, or a variable acting on aconcept, or a different variable actingon a concept, or two concepts perhapscoming in clash with one another.)Make sure that these concepts andvariables are accurately deployed in thedrafting. Problems often arise because itis not clear how such concepts orvariables operate in tandem with oneanother.

6. Clarify in your own mind and in thecontract the role of conditions andconditions precedent. What is vital tothe operation of the contract? Whatbreach will or ought to imperil thecontinuation of the contract? I amthinking here of a condition in thetechnical sense—in the Sale of GoodsAct sense—as an obligation, any breachof which will entitle the other party tobring the contract to an end. There isalways litigation about this question,and one ought to get it clear.

7. When you have drafted your contract,stand back and adopt a “What if?”approach. This will often test yourdraftsmanship, sometimes to destruction.Of course, you cannot anticipate every-thing, and in any event it may detractfrom the success of your contract thatyou seek to cover unlikely events orpossibilities, particularly events orpossibilities which are very unlikely. Inthis context, do not allow the best tobecome the enemy of the good.

8. Take care to clarify your proper law,your forum, your dispute resolutionprovisions. Litigation on such subjectsis often hugely expensive; and the answercould be vital to the substantive result.

9. Get a second view, ie an outsider toreview and help you to edit your draft.He or she will see things that you aretoo close to see for yourself. If you haveto explain to an outsider why you havedrafted things as you have, or why youhave left something uncovered, lightwill shine where there has been dark-ness or confusion.

10. Institute a proper system of maintenance.Disputes or decided cases will test yourcontract. Adjust for the next time whatneeds adjustment. Keep up to date.

I will leave this inexhaustible subject there,if I may. And if you want to know how theeditors of the Dictionary of National Biog-raphy express to potential contributors theprinciple of conciseness, which they requireof their contributors, it is, I am told, by thisexample: “No flowers, by request”!

Thank you very much.


Have you ever known the legal expression“for the avoidance of doubt” to actuallyhelp avoid any doubt?

Rix LJ: I think here again there are contractsand contracts. It has been well said, in thecontext of charterparties for instance (forgiveme banging on about them, for that representsa lot of my background) that surplusage—surplus wording—is not necessarily a guideto construction. You start from the generalprinciple that no words are surplus to thecontract. The plain English campaign itselfproves that words are always being used in aredundant and surplus way. I think judges inconstruing contracts have got to see throughthe natural rule which one should, I suppose,apply, which is that a well-drafted contracthas not got a single word which is unnec-essary. You just have to see through it.

Paul Clark: If I could add to that, as a drafter,I think there is merit in complex contracts ingiving examples. If “for the avoidance ofdoubt” is giving an example of what you’retrying to say, then provided that’s its functionI personally see no harm in it.

Statutory instruments frequently have anexplanatory note at the end which many ofus, I think, turn to first to see what they areall about. Does Lord Justice Rix think itwould be useful in any contract of anycomplexity to have an opening paragraphwhich perhaps can be declared not to bearon the construction of the contract itself butin which the parties try and say, broadlyspeaking, what it is they are seeking toachieve by the contract?

Rix LJ: Yes, I feel that quite strongly althoughI don’t have presently in mind examples ofcases where such a drafting technique hasavoided a problem or the absence of it hascreated a problem. But I do feel that is a veryuseful matter. In fact I think that—I am justlooking for which commandment it was—one of my commandments, I think, spoke of“your contract would be improved if youstate its fundamental purpose or purposes inthe contract itself” and that is what I had inmind.

There is a problem about explanatory notes.I don’t want to get involved in the separateissue of statutory interpretation, but there is aproblem where you have got on the one handthe statute which is what you have got to inter-pret then you have got on the other hand anexplanatory note which is not referred to inthe statute at all and whose status is reallyunknown. I think there have been some recentstatements in the House of Lords which havesuggested that it is legitimate to cast an eye atthese explanatory notes. The last time that Ilooked at an explanatory note for the purposeof a problem of statutory interpretation, onlylast week in the Criminal division of the Courtof Appeal, it seemed to me that the existenceof the explanatory note had been used as anexcuse for obscure statutory draftsmanship,because what was discussed in the explanatorynote did not exist at all in the language of thestatute. There was an explanation, but it wasa very odd use of an explanatory note.

Now what I was thinking of in my thirdcommandment was not so much an explan-atory note the function of which or status ofwhich might be controversial in relation tothe contract but actually putting into thecontract what its purpose or fundamentalpurposes are. It’s rather like putting anexample into your contract; it illustrates whatit is you are seeking to achieve and thereforeyou don’t have the problem of “what is thestatus of this?”: the status is, it is part of theagreed contract.

It’s rather like, if you think about it, the firstpart, the opening part, of the new CivilProcedure Rules of Lord Woolf. They startwith the fundamental purpose of the rulesand all the interpretation of the hundredsand hundreds of rules which follow is guidedby that opening principle. I think contractscan work in that way as well.

Paul Clark: I have had resistance from otherlawyers to purposive statements. You will seein my CV a reference to a product called alease book which simply means it’s a lease intwo parts: the variables all in a deed, two orthree pages long, and then the operative partof the lease comes in a set of conditions muchlike an insurance policy, a booklet. The bookletin this lease book is divided into chapters. Soyou have a chapter dealing with insurance, achapter dealing with repair, a chapter dealingwith alterations; the property lawyers among

Questions & answers


you will recognise all those. Now I start thosechapters with an opening phrase “the purposeof this chapter is …” and some lawyers objectbecause they say “I need to read the text tounderstand what you are trying to say: I don’tneed to be told what it is”. I still insist, if I canget away with it, in putting in the purposebecause I think it is helpful in case of ambiguityto enlighten those who have got to interpretthe document.

Rix LJ: I think I can give you an examplewhere it would have worked magic. There isa case in the House of Lords in recent yearscalled AIB1: it’s a case about a banking mort-gage, which was drawn up for the purposesof two friends, partners in a sense (but I don’tthink they were formal partners), who workedtogether on property development or invest-ment. They borrowed money from the bankand they entered into a series of bank mort-gages which were essentially in standardwording and talked about their joint andseveral liability. What happened was theyworked together on (I shall make the figuresup, say) 15 properties. One of the partners hadfive properties of his own which he worked onand the other partner had another 20 prop-erties of his own that he worked on.

In the end the question was: was there jointand several liability across the 15, the 5 andthe 20 as a whole, or were they really onlytalking about joint and several liability onthose property transactions where they wereworking together, the central 15? The Houseof Lords was split on that. The answerdepended on a definition of “mortgagor”. Ithink Lord Millett wanted to go in a differentdirection but a majority of their Lordshipssaid “this is an all moneys joint and severalmortgage and it covers absolutely everything”.

Now a clause in that contract which had said“the purpose of this contract is to providejoint and several cover to the bank only onthose matters where we co-operate” wouldhave solved the whole question.

Paul Clark: A very amusing case, because Ithink it was Lord Millett who gave the exam-ple of a possible other interpretation to theliteral one which, Lord Justice Rix, was in facton definitions and the misuse of definitions ina sense. He said he was trying what he calleda distributive approach. “Mr and Mrs Smithtook their children to school”: we all under-stand that the children were children of both

Mr and Mrs Smith. But if you say “Mr Smithand Mrs Jones took their children to school”then one naturally assumes that Mr Smith’schildren and Mrs Jones’s children had differingparents. That we do quite naturally as a useof English and I think Lord Millett was tryingto imply that here and in the end I agree votedwith the majority.

Mark Andrews: Well I am very much infavour of explanatory notes and statementsof principle but I have just a word of cautionhere: they don’t always help. A documentthat I spend an awful lot of my life readingand particularly enjoy is the EuropeanInsolvency Regulations. It’s very fascinating—I would recommend it to you all. It has avery, very long explanatory statement thatcomes with it and about half of the accumu-lated European jurisprudence is about whatthe explanatory statement means. So it doesn’talways take you straight away to the absolutelyclear and undoubted guide to where you areintended to be going.

Mr Clark,—who knows very well that in hisjournal [Clarity] he covers the problems ofother languages as well as English—talkingabout plain language, I wonder whetheryou can give advice to the many translatorshere today, who are particularly interestedin how we deal with everyday problems oftranslating from lawyers who write inforeign languages and by tradition, byformation, or by demand of their clients,obscure language. Should we be equallyobscure or should we try and interpretthem?

Paul Clark: I am going to dodge thatquestion by mentioning that in Australia,which I think in plain language is probably10 years in front of us, large firms like thiswould employ two or three linguists on theirstaff who are not lawyers but whose job is totranslate what the lawyers say into plainlanguage. So I think those who are translatorshere might note that and work closely with alawyer to see if you can get the lawyer tosimplify what he or she is saying in the lightof your own linguistic skills.

Rix LJ: I think this is a very interesting,difficult question. I am an awful linguist. Ihave never really undertaken a job of transla-tion or interpretation. I am ok with Latin andGreek. Any more than that, I am hopeless. So


I can’t speak from experience, save for this.On occasions when I have had to readtranslations of foreign material—this wouldbe, for instance, translations of foreign caseswhich have been cited to us or of the articlesof foreign jurists—it is very noticeable justhow difficult it is to translate in a technicalsubject like the law from one language to thenext. I assume that the translations that I amreading have been really skilfully done butalmost in every line, certainly in every para-graph, there are problems of interpretationwhich one is raising to oneself as one reads.

Now, how is that to be avoided? It is partlybecause the interpreter, excellent as he or sheis, is quite properly trying to be as literal as agood translation will permit, partly becausethe interpreter is not, I assume, himself orherself a lawyer. One might of course wellhave legal interpreters who are skilled lawyers.But if they are not skilled lawyers themselves,they will not be assessing the legal impli-cations of what they are translating at thesame time they are translating. In any eventI think that the problem of trying to explainthe law of one country to lawyers of anothercountry is a really difficult one because itgoes back to mindsets and where you aretrained and fundamental concepts and soforth. I think these problems are almostinsoluble. I understand that good translationis not necessarily absolutely literal translation,but the good translator will be as literal asthey are permitted to be in order to produce agood basic translation that does justice to theoriginal text. So I think this is a very interestingand difficult question.

Mark Andrews: My own admiration of trans-lators is boundless. It never ceases to amazeme how well people manage to translatelegal discussion and I am always particularlystunned by the skills of parallel translators.My particular favourite, because it does breakdown sometimes, was in a conference inPrague which was being done in Czech andin English, doing my stuff in English whichwas carried off brilliantly by the translators,and sitting back whilst the first Czech speakercame on. I knew broadly what it was aboutso I didn’t bother listening for a while butabout 10 minutes in, by which time the speakerwas getting quite excited and was waving hisarms quite a bit, I thought this was soundingquite exciting, I would like to know what is

going on. So I plugged in to hear what thetranslator had to say just in time for her tosay, “Oh, I am so sorry, I really have no ideawhat he is talking about”. So it can be quitetricky.

I would like to come back, if I may, to theissue that you were discussing earlier—thestatement of the fundamental purpose,because I think some of the examples thatwere quoted were references to statute. Isuppose Mark, looking at the EuropeanInsolvency Regulation, a lot of that purposestated at the start is like recitals to so muchof European legislation; it was there tocreate the penumbra which Lord Justice Rixalluded to in connection with contracts.Hopefully, whilst this is common for politicalreasons in legislation, by and large incontracts the statement of purpose wouldgive clarity, because I think if parties cannoteven agree on the purpose of the contractthe whole contract is likely to be in apenumbra.

Panel: [no comment]

Why don’t more clients ask for contractsin simple English language as opposed togeneral complex ones that we presentlyhave?

Mark Andrews: Interesting question—whydon’t more clients demand it?

Paul Clark: In the 70s when plain languagefirst hit me—some of you may recall Parker’sModern Conveyancing Precedents which areso modern I wouldn’t use them myself eventoday—but it struck a chord with me. I wasat Linklaters in those days and I thought Iwould try this modern approach in about1973. The limit of my trial was instead ofstarting a deed “This deed dated the so andso date of month one thousand nine hundredand seventy three between …” I put Agree-ment: Date: Parties 1, 2, 3. The client took meto one side when he had read it and said“Paul, could you please put this contract inlegal language”.

Yes, I agree with you: clients need to beeducated too but my experience is that themodern client who is, as Lord Justice Rixintimated, trying to market his products willalso be glad to have a marketable legaldocument and that’s been my experience.


Some of my work—in terms of lease drafting,which is my speciality—has been for somehousehold names and they are delightedwith the modern product. I think you arepushing at an open door today.

I am aware that there is an organisationwhich awards crystal marks, I think theyare called, to well-written documents,principally, I think, in the consumer field.And I am aware that citizens’ advicebureaux are always saying that it is helpfulif consumer documents are well written. Iwas just wondering if you could let usknow how Clarity works with other organ-isations to quote the work that we havebeen talking about.

Paul Clark: Willingly. Clarity doesn’t havethe same function as something like the PlainEnglish Campaign, which is the organisationwhich gives the crystal mark. We are a collec-tion of lawyers who have an aim and we wantto help each other along that road, that path.There are one or two of us who will redraftdocuments for a fee. We have explored thepossibility of giving some sort of kite marklike the crystal mark but we don’t have theresources to do that. We are a voluntary groupwho get together, as I say, with a view tosupporting one another in the plain languageaims.

In your golden rules, Lord Justice Rix, youmention the question of short sentences.Clarity people would put that on an averageof about 22 words on average as a sentencelength to aim for. I was slightly disappointedthat you didn’t endorse plain languagemore strongly than you did. I did expectyou to be slightly more evangelical, I mustsay, sir. When we look at a lease, for exam-ple, a commercial lease, do you think it ispossible to adhere to that rule, or do youthink for technical reasons the endlessrepetition that we see in most commercialleases is for some reason necessary andunavoidable?

Rix LJ: I don’t know. I don’t know leasesparticularly well as a form of contract. I thinkthat the shorter your sentences are, the lesscomplex they are, the better off you will be.

I wouldn’t be evangelical about anything,actually. If I may change the topic slightly in

order to illustrate the point, I think that oneof the evangelical rules of plain English ischanging every “shall” for a “must” on thebasis that “shall” is an ambiguous wordwhich may be a word of obligation or maybe a pointer to futurity. It is sometimes evensuggested that it may mean “may”, but Ican’t understand how “shall” can mean “may”.

Now I read somewhere that no less than1,100 disputes have been created by the useof the word “shall”. I assume that is a correctstatistic—I don’t know, I haven’t countedmyself—which only goes to show that it cancreate difficulties and I wouldn’t dispute that.But what I would be very worried aboutindeed is a sort of automatic replacement ofevery “shall” in its obligatory sense—not inits future sense, of course—of every “shall”with a “must” in the contract. I think thatwould be disastrous because the word “must”is a very strong word. It hints of conditions,for instance, whereas the word “shall” is alanguage of obligation which leaves open forinterpretation what the consequence of abreach may be. And so I don’t think you canhave absolute rules. Intuitively I react againstyour idea of an average sentence of 22 wordsand so forth.

Do you think the trend toward plain Englishwill help reverse the tendency to look at thefactual matrix and, in fact, encourage aslightly more old-fashioned black-letterapproach through clear and sensible use ofEnglish?

Rix LJ: God forbid. I think that any contractlawyer would say this, but certainly any judgewould say this: context is everything. I meanlanguage is just too difficult. You cannot black-letter it apart from context. I don’t think Ihave got an example to give you off-hand, butthere are so many examples of how languagecan throw you unless you know the context.

Paul Clark: Lord Hoffmann did say that weshould give the natural and ordinary meaningwhich for me is the cardinal rule for draftingbut you have to do it in the context.

[ends with thanks to Rix LJ and all organisers.]

Endnote1 AIB Group (UK) Ltd v. Martin [2002] 1 WLR 94.


Sarah CarrCarr Consultancy and Plain Language Commission

In Clarity 55, I suggested that Clarity couldinclude regular columns called ‘Linguistic Lingofor Lawyers’ and ‘Legal Lingo for Linguists’.Practical and fairly short, they would haveadvantages for their readers and writers:

• For readers—the plain-English explanationscould improve our knowledge and understandingof technical terms. It would also be interestingto observe others’ techniques for explainingtechnical jargon.

• For writers—the process of explaining ourjargon in plain English would be interestingand useful, and may even sharpen our ownunderstanding of it.

• For both—the columns would provide abuilding collection of ready-made explanations,which we could use unchanged (subject toClarity’s copyright policy) or as a startingpoint in our day-to-day work: for example ifwe needed to explain linguistic or legal termsto a lay audience.

I asked what you thought: would you like to seethese regular columns? Do you have ideas fortopics to fill them? Would you like to write forone? Julie Clement (Clarity’s editor in chief) andI have received some positive comments, but asyet no ideas for topics or offers to write.

Do email us at [email protected] [email protected] if you can help.

This is the second ‘Linguistic Lingo for Lawyers’article.

The term ‘person’ distinguishes the speakeror writer (‘first person’) from the person orthing being addressed (‘second person’), andfrom any people or things not falling intoeither of these categories (‘third person). So,for example in the sentence I told you andhim, I is in the first person, you in the secondperson and him in the third person.

Other terms for personal pronoun forms are:

• ‘gender’—which marks words asmasculine, feminine and neuter

• ‘number’—which classifies wordsdepending on how many people or thingsare referred to

• ‘case’—which shows the relation of a wordto others in the sentence.

Person, gender, number and case inEnglish and other languages

The following table shows the categories thatstandard modern English uses in person,gender, number and case for personalpronouns. Occasionally, the archaic second-person pronouns (singular thou, thee andthine, and subjective plural ye) are still used(sometimes altered) in some regional dialectsof England and Scotland. They also survivein religion, in writing about old times, and ina few set phrases such as holier than thou andfare thee well. Some North Americans collo-quially distinguish between singular andplural you by using y’all or yinz for the plural;in England and Australia, some speakers useyouse in the same way.

Other languages may have fewer or extracategories. Here are some examples:

• The Algonquian languages use an extracategory—fourth person—for third-personpeople or things that are less topical.Another use of the term ‘fourth person’ isfor indefinite or generic pronouns (like onein English phrases such as one should doone’s best).

Linguistic lingo for lawyers‘person’ and other grammatical terms for personalpronoun forms in English


• Melanesia has two extra categories ofnumber: dual (we two or you two) and trial(we three and you three).

• If you think Latin had a lot of cases (six),then try Finnish: it has 15.

• Many European languages have differentpronouns to distinguish levels of formality,for example tu and vous as second-personsingular in French.

Relevance of terms to plain English

Of the terms covered in this article, ‘person’probably crops up most frequently amongplain-language practitioners, as we oftenrecommend using the first and second personswhere possible.

I find that this guideline is one of the hardestto get health service managers to use. Theyare worried about their own job security,which puts them off using I and we, becausethey feel it makes them too personally ac-countable. They are happier talking in thethird person about an official body, such asthe trust board or the finance committee. Theyare also under pressure to ensure there isalways a robust audit trail, and are concernedthat personal pronouns do not make itabsolutely clear who or which body hasdecided about or done something. Sometimesit works to make the first reference in thedocument we on the trust board or suchlike.But you also causes problems as they areoften writing for a disparate audience.

Wouldn’t it be handy if we could soundhuman and specific both at once, by inflectingnouns too to mark person, showing, forexample, that by the board, we meant we (asopposed to they) on the board? As far as Iknow, no languages allow this.

Pronoun gender can also be a hot topic inplain language, since we need to make sureour use of personal pronouns is not sexist.They, them, their and theirs seem reasonablywell accepted these days as common-sexsingular pronouns.

A recent exchange on the Plain LanguageAssociation International’s email discussiongroup highlighted that some people get into amuddle with pronoun cases, often in an effortto sound proper and polite. For example,they might say: Would you like to come withmy friend and I? They were probably told asyoungsters not to say my friend and me (whichis correct advice if the phrase is in the subjectivecase) and are now misapplying it to theobjective case. Between you and I is anotherexample.

Sarah Carr has a first degree in French and Scandinavianwith Teaching English as a Foreign Language, and amaster’s in business administration (MBA). Sarahworked as a manager in the National Health Service(NHS) for seven years. She now runs Carr Consultancy,specialising in plain English writing, editing andconsultancy for the NHS. Sarah is also an associate ofPlain Language Commission. Her publications includeTackling NHS Jargon: getting the message across(Radcliffe Medical Press, 2002).

Person Gender Number Case

Subjective Objective Possessive

First Masculine, Singular I me my/mine

feminine & Plural We us our/oursneuter

Second Masculine, Singular & you your/yoursfeminine & pluralneuter

Third Masculine Singular He him his

Feminine She her her/hersNeuter it its

Masculine, Plural they them their/theirs

feminine &neuter


Peter Butt

Traditional legal drafting eschews the useof punctuation. But punctuation—or itsabsence—can have serious consequences.For example, Sir Roger Casement was said tohave been hanged by a comma. In a recentCanadian decision, the presence of a comma—whilst not raising such a life and deathissue—caused considerable commercialanguish.

An agreement for access to telecommunicationsfacilities provided that the agreement:

“shall continue in force for a period of five (5)years from the date it is made, and thereafterfor successive five (5) year terms, unless anduntil terminated by one [year’s] prior noticein writing by either party.”

Notice the second comma. Did it have theeffect of permitting the contract to be termi-nated by one year’s notice at any time, or onlyafter the initial period of 5 years had expired?

The importanceof punctuation

The Canadian Radio-television and Telecom-munications Commission held that the contractcould be terminated at any time (TelecomDecision CRTC 2006-45). In the Commission’sview, the “rules of punctuation” meant thatthe second comma—placed as it was beforethe phrase “unless and until terminated byone year’s prior notice in writing by eitherparty”—meant that that phrase qualified boththe phrases before it. One party argued thatthe phrase “unless and until terminated byone year’s prior notice in writing by eitherparty” qualified only “thereafter for succes-sive five (5) year terms”. On this construction,the agreement would continue in force for atleast the first five-year period. But that con-struction would deny the efficacy of the secondcomma. Hence, the “plain and ordinarymeaning” of the clause allowed for terminationat any time without cause, upon one year’swritten notice.

The Commission’s decision does not mentionhow much the comma cost the losing party.However, a report of the decision in theCanadian Globe and Mail on 6 August 2006calculated the cost of the “grammaticalblunder” as upwards of $2.13m—being thecost to the losing party of the winning party’sright to terminate the contract on one year’snotice.

So let no one claim that punctuation in legaldocuments is unimportant.

Australia 126Austria 1Bahamas 2Bangladesh 6Belgium 6Bermuda 1Brazil 2British Virgin Islands 1British West Indies 4Canada 66Chile 1Denmark 2Malaysia 1England 322Finland 6

Members by countryFrance 1Germany 3Gran Canaria 1Hong Kong 18India 6Ireland 5Isle of Man 1Israel 3Italy 2Jamaica 1Japan 7Jersey 3Mexico 7Netherlands 6New Zealand 18

Nigeria 8Philippines 1Portugal 1Scotland 10Singapore 8Slovakia 1South Africa 120Spain 3St. Lucia 2Sweden 15Switzerland 1Thailand 1Trinidad and Tobago 3USA 197Wales 7

Total 1,007


Drafting tips recasting a document

Dr Robert Eagleson

The document: original and recastsCommentary

The original version

7. Confidentiality

1. The Contractor agrees that the Contractor2. will hold in strictest confidence, and will3. not use or disclose to any third party, any4. confidential information of ABC. The term5. “confidential information of ABC” shall6. mean all non-public information that ABC7. designates as being confidential, or which,8. under the circumstances of disclosure9. ought to be treated as confidential.10.“Confidential in formation of ABC”11. includes, without limitation, the terms12.and conditions of this Agreement,13.information relating to products of ABC,14.the marketing or promotion of any15.products of ABC, business policies or16.practices of ABC, and customers or17.suppliers of ABC. If the Contractor has

any18.questions as to what comprises such19.confidential information, the Contractor20.agrees to consult with ABC. The

Contractor21.shall guarantee and ensure its employees’22.compliance with this Section. The23.Contractor’s obligations under this24.Section shall survive any termination of25.this Agreement. “Confidential26.information of ABC” shall not include27.information that was known to the28.Contractor prior to ABC’s disclosure to

the29.Contractor, or information that becomes30.publicly available through no fault of the31.Contractor.

As we take up plain English in our practice, wefrequently need to recast documents orprecedents we have previously prepared sothat they comply with our new, more effectiveapproach to drafting. As well, clients willapproach us to rework a contract or form theyhave been using so that they can give betterservice and fairer treatment to their customers.

This note explores some to the steps we shouldtake in approaching such a task. Because ofspace we cannot reproduce the wholedocument; so instead we are limiting ourremarks to a lengthy clause or section from adocument. The general principles we apply areessentially the same whether we are dealingwith a whole document or only part of it.

In this column we explain the steps in ourprocedures. In the right hand column we havefirst reproduced the section as it appeared inthe document, but have added in line numbersto aid references to it during the discussion.Then come various types of reworkings of it,linked as appropriate to the steps in thediscussion.

Step 1

The first step is to leave the editorial pen onthe desk: don’t start by changing a word orphrase here and there. Instead read the entiredocument to get a feel for what it is trying todo and what it is covering.


Step 5

Once we have a full list of essential topics, wecan proceed to arrange them in a suitable orderand to bring closely related topics next to eachother or even merge them. For the purposes ofthis step, we will assume that the circumstancesrequire all the topics listed under steps 2 and 3to be covered. All of them were essential in thecontext for which the original was prepared.During the discussion in step 6 we will take upwhen and why some of the material may besafely excluded.

A possible organisation for the topics

p) Obligation to keep certain informationconfidential (= a)

q) What information is involvedand what isn’t? (= c + d + e + h)

r) Who owns the information? (= o)

s) When and how can it be used anddisclosed by the contractor? (= b + f)

t) What if there is a court order? (= m)

Step 2

List the topics covered—and in the order inwhich they are covered.

Don’t spend time at this stage re-arrangingthem into what might appear to be a morereasonable order: this can be done moreefficiently later. Just make sure you know whatis there.

Topics covered in original

a) Obligation to hold certain information inconfidence

b) Obligation not to disclose to others

c) Meaning of confidential information

d) Other items included

e) What to do if in doubt

f) Obligations of employees

g) Duration of obligation

h) What is not included in confidentialinformation

Step 4

Decide which topics are necessary for theparticular circumstances you are trying tocover. It may not be essential to include allthese topics in every contract or agreement.Some issues may never arise in certain businesscontexts. To overload the document coulddistract readers from the crucial obligations. Itdepends on the real, as opposed to thehypothetical, risks involved.

Step 3

List any topics that seem to be missing andcould be important for the effectiveness of thedocument. A danger in legalese is that itsconvolution often makes it hard for a drafter torecognise whether crucial material has beenincluded or not.

Just set the missing items down as they occurto you: once we have the full set we can startmaking decisions about how to arrange them.

Topics not covered

i) Can confidential information be disclosedto certain consultants?

j) Any obligation to notify ABC of improperdisclosure?

k) Indemnity for improper disclosure

l) ABC’s rights to reclaim the information

m) What if court order requires disclosure?

n) Obligations to keep the confidentialinformation secure

o) Ownership of the confidential information

This list is illustrative only; it may not beexhaustive!


Step 6

The comments marked #, *, etc relate to the parallelitems in the recast text.

Once we have established the topics to becovered and an appropriate organisation forthem, we are in a good position to startfleshing out the content. Much of the criticalthinking has now been done and our writingcan flow more speedily.

Fixing on an organisation also makes it easy tosee how the material can be divided andpresented in blocks of information so that it iseasy for readers to absorb. It lets us escapefrom 1 long paragraph, which bedevils theoriginal version. The process also points theway to suitable headings, which improve theaccess to the content for readers.

Spending time on what to include and how toarrange it reduces drafting activity later on.

# General readers find you and we (the personalpronouns of address) easier to comprehend.The use of more abstract terms, such ascontractor, involves readers in an additionalprocess of interpretation. (The practice ofusing a capital letter with Contractor in theoriginal (line 1, etc) to indicate a definedterm is largely ineffectual as this device ishardly recognised in the general community.)

^ There are several choices available in modernEnglish to express obligation: must, need to,have to, agree to. Shall is now obsolete in thissense in general usage and has beenabandoned for this purpose by lawyers whohave adopted plain language because itpuzzles general readers.

A complete recast

The items marked #, *, etc link to the explanations onthe text in the left hand column

7 Confidential information

7.1 What information must be keptconfidential?

#You ^must keep confidential:

a) *information about our products and howwe market or promote them

b) information about our business policies andpractices

c) information about our customers andsuppliers

d) the conditions of this agreement

e) any other information that we mark‘confidential’

f) any other information that, in thecircumstances surrounding the disclosure orin the nature of the information, ought ingood faith be treated as confidential.

<Confidential information does not includeinformation:

• that was known before this agreement wasentered into, or becomes publicly availablesubsequently

• that is received from another source that canreveal it lawfully on a non-confidential basis.

If you are unsure whether a piece ofinformation you have received from us isconfidential, you must check with us firstbefore you use it or disclose it to others.

What we are presenting here is only 1 way oforganising the material. Other arrangementscould also be suitable and efficient. The orderwe choose depends on the audience and ourknowledge of its needs.

Remember that people are involved in learningwhen they are reading a document. If theyalready know the content, there would be noreason for them to read the document.Learning becomes easier if items of informationare arranged in an order that makes sense toreaders, that fits in with their notions ofimportance, and that brings related itemstogether. Haphazard arrangements of materialincrease the task of learning. Many manualsprove this point over and over again!

u) What steps must be taken to keep theconfidential information secure? (= n)

v) What must be done if there isimproper disclosure (= j)

w) Compensation for improper disclosure (= k)

x) How long must the information bekept confidential? (= g)

y) ABC’s right to reclaim the information (= l)

(Continued from page 56, left column) (Continued from page 56, right column)


In Old English shall was used by everyone toexpress obligation, and only obligation. AsEnglish had no distinctive future tense, overthe centuries shall came also to be used toexpress the future, a practice encouraged bythe fact that most obligations fell due in thefuture. By the 17th Century this future usehad all but displaced the sense of obligationassociated with shall in general usage, but theold practice lingered on in legal usage. Overtime this meant that the forms of languagelawyers used in everyday situations differedfrom the forms they kept in professionalcontexts. The result was that they becameconfused on how to use shall and frequentlymade mistakes. Lines 5, 24 and 26 in theoriginal attest this claim. In line 5 there is noobligation on ‘confidential information’ tomean something; it has its meaning as amatter of fact. What is required is means (theuniversal present tense). Here is anothergood reason for abandoning shall, which inany case has largely disappeared frommodern usage in all situations.

* The items included in this list depends on thecontext of the agreement.

Another solution would be to move thespecification of the information involved tothe particulars or details portion of thedocument. This would then allow us to refersimply to ‘the confidential information’throughout section 7 and to start with 7.2.This is a convenient solution if you areaiming at a standard form of agreement to beused with many different clients and invarious contexts as only the particularsportion would need to be varied.

The original version resorted to the device ofa definition to present the material at thispoint (see lines 5-17). The definition comes in2 parts: a specification of the meaning ingeneral terms, introduced by mean; and apart providing precise examples, introducedby include (line 11). This 2-step approach isfamiliar with lawyers, but many readersprefer a more concrete approach to thematerial. It is more congenial for them to bepresented with specific items which they canrecognise. Any broader statement becomeseasier for them to cope with if they have thelight of the concrete examples to guide them.The broad, general statement can fit nicely asa final catch-all in this approach, as happensin 7.1.

7.2 Who owns the confidential information?

The confidential information always remainsour property. Our disclosure of it to you for thepurposes of this agreement does not give youany right, title or interest in it.

7.3 Use and disclosure of confidentialinformation

You can disclose, use or summarise ourconfidential information and copy or distributematerials containing it only for the businesspurposes set out in this agreement and only inaccordance with this agreement.

You can disclose our confidential informationto your employees and contractors and to yourlegal and financial consultants, but only on a‘need to know’ basis and subject to theconfidentiality obligations in this agreement.

You can disclose our confidential information ifrequired by a court order or statutory noticebut you must:

a) give us sufficient notice of the requirementso that it can be contested; or

b) seek to limit the disclosure in any way wereasonably request; or

c) >obtain written assurance from the judgeor regulator that they will give theconfidential information the highest levelof protection available.

You must not:

a) use our confidential information for yourown benefit; or

b) disclose it to ∞anyone else without ourprior written consent.

7.4 Protecting the security of the information

You must:

a) »take reasonable steps to protect ourconfidential information and keep it securefrom unauthorised persons

b) segregate all materials containing ourconfidential information from thematerials of others to prevent them beingmixed together

c) return any confidential information that isno longer needed to carry out anobligation under the agreement.

≠ After giving you reasonable notice, we canvisit your premises during normal



< It is safer for readers to hold all the materialon the meaning of ‘confidential information‘—what it isn’t as well as what it is—together,especially when they are checking the factson a later reading.

> This option may not be available in allcountries nor required in all situations.

∞anyone else will be more readily recognisedthan any third party (see line 3) and functionssatisfactorily in most situations. We have tobe alert about slipping into set legal phrasesunnecessarily.

≈ This clause 7.4 (a) would be all that wasnecessary in many agreements. Clause (b)applies in sophisticated contexts.

≠ This requirement would suit only specialistcircumstances; it would seem excessive inmany agreements.

The bare bones

The original—and hence the complete recast—were prepared for a specific and more complexsituation. There can be other situations inwhich no confidential information may beexplicitly made available to contractors butthey have to be given access to the owner’spremises to carry out repairs, maintainequipment etc. Inadvertently they may seeconfidential information or hear staff talkingabout it. The owner may want to try toexercise some control. In this circumstance itcould be possible to reduce the whole sectionon confidentiality to:

“You must keep confidential any inform-ation you learn about our business whileyou are working on our premises.”

business hours to review how well you arecomplying with these requirements forprotecting our confidential information

7.5 Prompt notice of improper disclosure

You must:

a) notify us immediately you become aware ofany unauthorised use or disclosure of ourconfidential information

b) co-operate in every reasonable way to helpus regain the materials containing ourconfidential information and preventfurther unauthorised use or disclosure ofthe information.

7.6 Compensation for improper use ordisclosure

You indemnify us against all loss, damage,expense and costs arising because you do notkeep these conditions on the use and disclosureof our confidential information.

7.7 Duration of obligations

Your obligations regarding our confidentialinformation continue even if this agreement hasbeen terminated.

7.8 Right to reclaim the confidentialinformation

At the end of the agreement, or if we ask for itearlier, you must return our confidentialinformation, and all copies, summaries, notesand memorandums relating to it, to us as wedirect.


© REagleson [email protected]

Mark Adler apologizes for not submitting a drafting column—pressure from other commitments interfered. The secondedition of Clarity for Lawyers is being published on December7. Mark is grateful to Dr. Eagleson for providing this issue’scolumn. They promise to share the duty in the future, and theywelcome other writers as well. We certainly are not limited to asingle drafting column per issue. Ed.


From the President

Joe KimbleLansing, Michigan, USA

This is goodbye and hello.

My three-year term as president ends onDecember 31, so this will be my last messagein this space. It has been a great honor for meto serve as Clarity’s president. I still rememberthe day—more than 15 years ago, I believe—when I first talked with Mark Adler on thephone. After a moment’s hesitation, Mark said,“Oh, you’re the chap who has done that testingin the U.S.” Yes, that was me. At the time, Iwas among a handful of U.S. members.

Although I’m stepping down as president, I’llcarry on as the membership secretary. Perhapsnow’s the time to reveal my little secret: thereal membership secretary is my long-sufferingassistant, Cindy Hurst. She does the work, andClarity owes her a great debt.

As I reflect on my term, I’d like to think thatClarity has made some significant gains.

First and most important, we have producedtwo issues of the journal each year, right onschedule. And the journal has become a sub-stantial, professional product. Here again, though,the credit goes to others: to our editors in chief,Michèle Asprey and Julie Clement; and to ourguest editors, David Elliott (No. 51), JacquieHarrison and Nittaya Campbell (No. 52),Catherine Rawson (No. 53), Nicole Fernbachand Edward Caldwell (No. 54), Annetta Cheek(No. 55), and Peter Butt (No. 56). We are notyet at the stage of receiving a flood of unsolic-ited articles, so I expect that we will need tocontinue with guest editors for some time.

Second, we have revamped our website, thanksto design guidance from Mallesons StephenJaques and the continuing efforts of Mark Adler.

Third, we held a very successful internationalconference—our second—in July 2005 inBoulogne, France, at the Université du LittoralCôte d’Opale. I reported on the conference inClarity No. 54.

Fourth, we have added new country representa-tives in 10 countries: Bangladesh, Chile, Finland,Mexico, Nigeria, the Philippines, Portugal, Slovakia,Spain, and Trinidad and Tobago. And we foundsuccessors to the former representatives in severalother countries. We now have representatives in26 countries. Imagine that.

Fifth, after manyyears of a hit-and-miss process forcollecting annualdues, I believe thatwe finally have asystem in place. Thishas taken some effort,as the country repre-sentatives know. Butwe had gone too longwithout making surethat people whoreceive the journalactually pay the very modest dues.

My one disappointment is that we have notadded a lot more new members. At the end of2003, we had about 950 members. We now haveabout 1,000. To a large extent, these numbersreflect the culling that occurred when wefinally began to insist that members pay thedues. The good news is that even with theculling, we have increased our membership.Clarity must continue to grow—and for that tohappen, we must all make it a point to promoteClarity and try to recruit new members.

Finally, there’s the matter of our next president.Clarity is an informal organization. I becamethe president on the recommendation of ourformer president, Peter Butt. Now, lookingto the future, and after consulting with Peterand with Mark Adler—our immediate pastpresidents—I’d like to recommend thatChristopher Balmford become our new presi-dent. Many of you know Christopher. He isour longtime Australian rep, a two-time guesteditor of the journal, a speaker at both ourconferences, and an active (and reliable)Committee member. More than that, his workin plain language goes back many years, to histime with the Law Reform Commission ofVictoria. He is a well-known, well-liked, andhighly effective advocate for plain language.I’m sure that he would drive Clarity forward.

At the same time, I do not want to discourageany Clarity member from submitting anothernomination. If you have someone you wouldlike to nominate, then please send me an e-mail(before December 15 if possible) with a briefdescription of the candidate’s qualifications.The Committee will then decide on the president.

I might add that the Committee is even nowdiscussing the procedure for selecting a newpresident when the next term ends.

My sincere thanks to all of you for a rewardingthree years.


Australia

Deborah CaoGriffith UniversityBrisbane, Queensland

Sue GreenMallesons Stephen JaquesBrisbane, Queensland

Scott WhitechurchMentone, Victoria

Bangladesh

Moez UddinAbedin and AssociatesRamna, Dhaka

Belgium

Ilkka KoskinenEuropean CommissionBrussels

C. William RobinsonEuropean CommissionBrussels

England

G.F. MartinNewcastle Polytechnic LawDepartmentTyne & Wear

Hong Kong

Tony SitLegal Advisory &Conveyancing OfficeNorth Point

Mexico

José Alberto Reyes FernándezSecretaria de la FunciónPúblicaMexico, DF

Rose Margarita GalanInstituto TecnológicoAutónomo de MéxicoDel. Álvaro Obregón

Nigeria

Toyin SomideLagos State Ministry of JusticeLagos

Kurt DrieselmanUEC TechnologiesMount Edgecombe

Boniswa DumezweniDepartment of the PremierCape Town

Frances GordonSimplifiedSaxonwold

Tobé HopeHollard Life AssuranceCompany LimitedRandburg

Lovisa IndongoWindhoek Municipal CouncilNamibia

Tjaart JonkerFirst National BankJohannesburg

Benedict KhumaloCompetition CommissionPretoria

Johan KrugelKrugel HeinsenWitbank

Martin Richard KokEngen Petroleum Ltd.Cape Town

Sheldon MagardieCheadle Thompson & HaysomBraamfontein

Heather Kuziva MangwiroCheadle Thompson & HaysomBlackheath

Moshe Ishmael MaphoruCompetition CommissionPretoria

Refilwe MathabatheDepartment of the PremierCape Town

Ayanda MazwiBurt Meaden AttorneysBedfordview

Virgil Rory McGeeEngen Petroleum Ltd.Cape Town

Richard MeadenBurt Meaden AttorneysBedfordview

Olukemi SowemimoLagos State Ministry of JusticeLagos

Portugal

Sandra Ramalhosa MartinsLisbon

South Africa

Ebrahiem AbrahamsSHGCape Town

Evelyn Amoah-BertrandPetrosaParow

Nancy AndrewsLiberty Life Group LegalServicesJohannesburg

Mpho BaleniDepartment of Foreign AffairsPretoria

Katherine BurgerICEBanbury Cross

Bruce BurtBurt Meaden AttorneysBedfordview

Gary ChenBurt Meaden AttorneysBedfordview

Julian CloeteLiberty Life Group LegalServicesJohannesburg

Lenisha DevanuthanBurt Meaden AttorneysBedfordview

Leeanne DeweyLiberty Life Group LegalServicesJohannesburg

Candace DickLiberty Life Group LegalServicesJohannesburg

New members

62 Clarity 53 May 2005

Sherlene MoonsamyDepartment of Trade &IndustryPretoria

Derrick MoshelediFirst National BankJohannesburg

Teboho Laura MotebeleThe National Energy RegulatorPretoria

JT (Tousy) NamisebMinistry of JusticeNamibia

Steve NaylorLiberty Life Group LegalServicesJohannesburg

Bonga NdabaEngen Petroleum Ltd.Plessilaer

Chifundo NgwiraLawson and CompanyMalawi

Retsipile NtsihleleLesotho Electricity CorporationMaseru

Gilleon PaulseEngen Petroleum Ltd.Pinelands

Nkahloleng PhashaDepartment of LabourPretoria

Michael PrinceDepartment of the PremierCape Town

Shandukisani RamubulanaDepartment of LabourSunnyside

Juanette RichardsonICEParkhurst

Shirley RobbinsCapsal Plain Language CentreMilnerton

Michelle RoodtICENorthcliff

Rietha SchalkwykLiberty Life Group LegalServicesJohannesburg

Mhlaba Gloria ShikhatiOffice of the PremierLetaba

Amanda SpohrDiscovery Marketing ServicesSandton

Richard SteynEditors Inc.Parkview

Zelna SwartBurt Meaden AttorneysBedfordview

Penny ThupaBurt Meaden AttorneysBedfordview

Bongiwe Pearl TukelaDepartment of LabourSunnyside

Heather van NiekerkBurt Meaden AttorneysBedfordview

Goodman VimbaOffice of the PremierLetaba

Carina WeiseOld Mutual Group SchemesCape Town

Vusikhaya ZokoDepartment of LabourSunnyside

Walter ZureCBZ Bank Ltd.Zimbabwe

Trinidad & Tobago

M. Hamel-Smith & Co.[Timothy Hamel-Smith]Port of Spain

Vijay LuthraPort of Spain

USA

Nancy MarderChicago-Kent College of LawIllinois

Sir Geoffrey Bowman, firstparliamentary counsel forthe UK until his retirementthis summer, has beenappointed honorary QC.(From the Law Society Gazette)

The second edition of MarkAdler’s Clarity for Lawyersis being published on 7December. Details and anordering link are onwww.adler.demon.co.uk/pub.htm. (From the author)

After 25 years of distin-guished service in Hong Kong,Gareth Lugar-Mawson hasreturned to private practicein the UK. He can bereached at [email protected]. (FromClerksroom News)

Many thanks to H DevarajaRao (“Rao, the copy editor”)for suggesting revisions tosome of the general noticesin Clarity. Ed.

Please send news items toJulie Clement at [email protected]. We will includethem in future issues, asspace permits.

Member news

Clarity 53 May 2005 63

SwedenBarbro Ehrenberg-SundinJustitiedepartementetSE-103 33 Stockholm08 405 48 23 (fax 08 20 27 34)[email protected]

Trinidad & TobagoVijay LuthraPO Box 50Port of Spain868 785 6212 (phone & fax)[email protected]

UKPaul ClarkCripps Harries Hall LLPWallside House12 Mt Ephraim RoadTunbridge WellsKent TN1 1EG01892 515121 (fax 01892 544878)[email protected]

USAProf Joseph KimbleThomas Cooley Law SchoolPO Box 13038Lansing, Michigan 48901-30381 517 371 5140 (fax 1 517 334 5781)[email protected]

Other European countries:Catherine [email protected]

All other countries:Please contact the USA representative

(Continued from page 2)

Country reps wanted

If you are in a country without aClarity country representativeand you would consider takingon the job, please contact JoeKimble at [email protected].


1 IndividualsTitle Given name Family name

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.................................................. Position ...........................

2 Organisations

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3 Individuals and organisations

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.................................................. Fax ................................

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Application for membership of ClarityIndividuals complete sections 1 and 3; organisations, 2 and 3

How to join

Complete the application formand send it with your sub-scription to your countryrepresentative listed on page 2.If you are in Europe and thereis no representative for yourcountry, send it to the Euro-pean representative. Otherwise,if there is no representativefor your country, send it to theUSA representative.

Please make all amounts pay-able to Clarity. (Exception: ourEuropean representative prefersto be paid electronically.Please send her an email fordetails.) If you are sendingyour subscription to the USArepresentative from outsidethe USA, please send a bankdraft payable in US dollarsand drawn on a US bank;

otherwise we have to pay aconversion charge that islarger than your subscription.

Privacy policy

Your details are kept on acomputer. By completing thisform, you consent to yourdetails being given to othermembers or interested non-members but only for purposesconnected with Clarity’s aims.If you object to either of thesepolicies, please tell your countryrepresentative. We do notgive or sell your details toorganisations for their mailinglists.

Name

Firm

Qualifications

Contact Name

Name

Phone

Address

Main activities

Email

Annual subscriptionAustralia A$35Bangladesh BDT 1500Brazil R50Canada C$30Chile $30Finland ∈25France ∈25Hong Kong HK$200Israel NIS125Italy ∈25Japan ¥3000Malaysia RM95Mexico 250 PesosNew Zealand NZ$50Nigeria 3000NPhilippines 1500Portugal ∈25Singapore S$40Slovakia SKK700South Africa R100Spain ∈25Sweden SEK250Trinidad & Tobago TT170UK £15USA US$25Other European countries ∈25All other countries US$25

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