January 2014 – Turgid documents – a thing of the past?

Author: Mitchells Roberton
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Last month saw the publication of a new book for lawyers entitled Drafting Trusts and Will Trusts in Scotland: A Modern Approach (published by W Green, Edinburgh). This was co-authored by William Grant, one of our Consultants here, and James Kessler QC, a leading member of the English Revenue Bar. (Despite its being published in mid-December it did not, as far as we know, feature in many Christmas stockings.)

In all the book runs to over 650 pages. This Note is not an attempt to outline the contents generally. It will focus on but one aspect indicated in the book’s title: its aim to provide a “modern approach”. The notion of a modern approach in relation to wills and trusts may sound a little implausible. Wills and trusts are perhaps readily associated with Dickens’ Bleak House and the interminable legal wrangling such documents can engender. But things have changed since Dickens’ day and aiming for plain legal language is now acknowledged by lawyers generally to be a good thing (although achieving it is sometimes easier said than done).

So, the approach of this new book is to affirm and reinforce that general contemporary trend. To that end it contains, in particular, a chapter headed “Style”. This Note simply touches on a few of the points in that chapter.

Introduction

  • The book quotes from an article in the Journal of the Law Society of Scotland which concluded that:

“… criticisms of traditional legal drafting clearly apply to Scottish drafting [as well as English legal drafting]. Traditional drafting leads to verbose and too often unclear drafting, which in turn bewilders clients and increases the risks of serious mistakes. Clear and concise drafting should therefore be an essential part of a lawyer’s service.”

  • That article appeared in 1994. But the roots of the trend for “plain legal English” lie far earlier. Remarkably, the following fierce criticism of legal drafting comes from Adriaen Koerbagh, a scholar writing in the 17th century

“Lawyers … charge exorbitant fees for piling up heaps of turgid documents couched in arcane terminology purposely incomprehensible to non-lawyers, rendering the public helpless victims of their wiles, a conceited grasping clique, who, instead of serving the common good cunningly exploit their supposed expertise to generate wealth and bogus status for themselves.”

  • Strong stuff indeed.

Punctuation

 

  • Surprisingly perhaps, traditional English legal drafting omitted punctuation altogether. That was not the case in Scotland where punctuation has traditionally been used in legal documents – albeit not always in accordance with its use in ordinary writing. England finally caught up with us on this in the early 20th century following a House of Lords appeal in the Scots case of Turnbull’s Trustees v Lord Advocate. Nevertheless, one still sometimes sees contemporary English legal documents which omit punctuation altogether.

Sentence length

 

  • In traditional trusts or wills the following style of sentence may often be found:

“I direct my Trustees to pay to or for behoof of my said wife if and so long as she shall survive me the free annual income of the residue of my said means and estate and that as a strictly alimentary provision not capable of anticipation nor affectable by her debts or deeds DECLARING that should the foresaid liferent provision be in the opinion of my Trustees insufficient at any time for the comfortable maintenance of my said wife my Trustees shall have full power to pay to or for behoof of my said wife along with the free annual income of the said residue such parts of the capital thereof from time to time as they in their discretion shall consider proper; And with respect of the foregoing liferent provision I direct that (notwithstanding any law or practice to the contrary) my Trustees shall include in the income falling to the liferentrix all dividends interest and other income actually received by my Trustees…”

  • In substance there may be nothing wrong with this. But it is tortuous. A client can hardly be expected to grasp easily what it might mean.
  • The book goes on to quote from two well-known Scots law Professors who, in seeking to encourage the use of short sentences in legal drafting, say this:

“Conveyancers traditionally like dive-in-and-hold-your-breath sentences. They feel that short sentences belong to Ladybird books. But long sentences, like long bits of string, easily get tangled. There is much to be learnt from Ladybird books.”

  • Indeed, there is.

 

 

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