The Gazette 1991

GAZETTE

JANUARY/FEBRUARY 1991

A • p p T Y r 1 INCORPORATE D

I I I L LA WSOCIET Y unZ.Ll iLsr January/Februar y 199 f l / L

Viewpoint

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Privilege and Confidentiality between Solicitor and Client and Computer 8 Meeting with Land Registry 9 Lawbrief 11 International Bar Association 16 Younger Members News 19 Retirement of Mr. Justice Sean Gannon 21 5 Practice Notes

Viewpoint PLA IN ENGLISH IS ON THE MARCH The revolt against gobbledegook, whether statutory, legal or com- mercial, is gaining ground in many common law jurisdictions. Legisla- tion has been a prime target, so too has banking documen t a t i on. Perhaps insurance policies should be given urgent priority! Now it is the turn of legal writing. The Law Society of England and Wales has recently published "Clarity for Lawyers", a compendium of letters and more f ormal documen ts identifying lack of clarity and suggesting simpler alternatives. Conveyancers might be reluctant to abandon all of their traditional style of writing. The sanctity of previous judicial interpretation of words and phrases will be called an aid. It is true that certain words are not mere jargon but have precise technical meanings but does that really extend to "hereinbefore recited" and " by divers mesne assurances events and acts in the law". The draftsmen of our current crop of occupational leases have much to answer for, though the dream of a statutory standard form of lease is not likely to be achieved. The almost-forgotten, because never used, forms in the Leases Act of 1845, are a sad example of an earlier attempt to deal with this problem. Using well worn precedents is comforting. It avoids the need for the exercise of the true discipline of drafting. There are those who would argue for the preservation of the mystique of the law. If the client can understand the document perhaps he would be tempted to draft it himself. The obverse of the

coin is that if the client does not understand the document or it has not been explained to him, greater liability may lie with the draftsman. Does adherence to old-fashioned drafting styles hide a deficiency in the teaching of English in our schools? If we are to aim at simple English it will require a greater not a lesser command of the language. Canadian legislation which, of course, is bilingual, seems to have learned much from the French style of legislative drafting. A compari- son of a recent Canadian criminal statute with its U.K. equivalent immediately points up the simpli- city and directness of the Canadian approach. It does not attempt to identify every possible category of offence that might be committed (a policy which defendants' lawyers have come to bless). Provisions are broader and yet more direct. This is the lesson that we must learn from the Plain English movement. Using simpler words is not enough. The style has to change too. There are already moves in the public service towards the improvement of the layout and language of a number of forms to be used by the public. Income tax returns and social welfare forms have been simplified. It is understood that the Law Reform Commission is preparing a report on plain English. The ground for its reception seems to be better prepared all the time. We need to move to a situation where the maxim ignorantia juris non excusat (which hardly ever applies to lawyers nowadays) to one of incomprehensio juris non excusat. • 3

Privity and contracts for the Carriage of Goods by Sea Law Society Committees 1990/1991

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32 34 38 41

Book Reviews

Correspondence

Professional Information

Executive Editor: Mary Gaynor Committee: Eamonn G. Hall, Chairman Michael V. O'Mahony, Vice-Chairman

John F. Buckley Patrick McMahon Daire Murphy

Advertising: Seán Ó hOisín. Telephone: 305236 Fax: 307860 Printing: Turner's Printing Co. Ltd., Longford. * The views expressed in this publication, save where otherwise indicated, are the views of the contributors and not necessarily the views of the Council of the Society. The appearance of an advertisement in this publication does not necessarily indicate approval by the Society for the product or service advertised. Published at Blackhall Place, Dublin 7. Tel.: 710711. Telex: 31219. Fax: 710704.