Terms and conditions apply!

When Practical Law began, more than 20 years ago, we had a simple mission that still holds firm today: to demystify the law and bring practical law to companies. A key part of that mission is striving to write as simply as we can, using plain English. When we took our standard documents to China, we found that our international customers were just as drawn to the fact that they were presented in simple, easily translatable English, as they were to the choice of English law or the jurisdiction of the English courts.

We are very fortunate to have on our team Daphne Perry. Daphne is secretary of Clarity International, a network of professionals who are committed to promoting plain legal language. She is also one of our commercial editors, and has just written a great note on Why traditional legal terms are costing your business (and what to do about it).

While she and I have been preparing the note for publication, we have enjoyed seeing two stories about English usage juxtaposed in the news. The first was that the Department for Education (DfE) has published new guidance for those developing national curriculum tests for seven-year olds that includes the following text:

“For the purposes of the English grammar, punctuation and spelling test, an exclamation is required to start with What or How e.g.
•What a lovely day!
• How exciting!

A sentence that ends in an exclamation mark, but which does not have one of the grammatical patterns shown above, is not considered to be creditworthy as an exclamation…”

The testing guidelines have been widely lampooned in the media, with speculation that the guidance had been introduced to curb excessive use of exclamations in text messages. Everyone it seems has their own favourite “non-creditworthy” exclamation. My own comes from my time as a trainee. One of my supervising partners marked up documents with yellow post it notes: these would usually carry detailed technical comments on the drafting, but in some rare instances were simply adorned with a single “!”. Even John Sutherland, emeritus Lord Northcliffe professor of modern English literature at University College London, was quoted in the Sunday Times as saying that the guidance was “ridiculous”.

In fact, the story itself has as much to do with careful reading as with careful writing. The civil servants responsible patiently pointed out: the purpose of the guidance is to help those creating tests devise specific ways to show that children have mastered use of the exclamation. It is not intended as a guide to English usage.

Happily, the news brought comfort from an unexpected quarter for those worried that a high level of exclamation mark usage could hold them back.

Nick Boles MP has penned a foreword to a call for evidence launched by the Department for Business, Innovation and Skills (BIS) seeking views on how consumers and businesses use terms and conditions, and how they can be improved to make them clearer, simpler and more accessible. Boles has brought a welcome degree of frankness to his task, acknowledging that he himself only reads terms and conditions “on rare occasions” and promising that the questionnaire “is not 50+ pages long” (the call for evidence is 45 pages). He says:

“My own experience is that on the rare occasions I have clicked on and opened “T&Cs”, I have found them to be very long, in small print and full of impenetrable jargon and legalise (sic).”

What I liked most about the Minister’s foreword (apart from the creative spelling) was the unexpected level of enthusiasm he was able to generate for the task, managing to squeeze in not just one but four exclamation marks, none of which could have been considered “creditworthy” under the DfE guidance. Boles is MP for Margaret Thatcher’s home town Grantham, and was appointed as Minister of State jointly for BIS and the DfE on 15 July 2014. Educated at Winchester College, he studied PPE at Oxford and won a Kennedy scholarship to Harvard. As we looked at the call for evidence, Daphne reminded me of Roger Ascham’s famous words:

“He that will write well in any tongue, must follow this counsel of Aristotle, to speak as the common people do, to think as wise men do; and so should every man understand him, and the judgment of wise men allow him.”

Importantly, the story here again is just as much about careful reading as careful writing: the call for evidence on terms and conditions is also seeking views on new powers for enforcement agencies to impose civil fines on businesses who do not comply with consumer protection rules. Such powers exist already in relation to some regulated sectors but the call for evidence proposes extending them to cover consumers generally, and consumer-facing companies generally will want to track this development.

Thomson Reuters Legal UK & I Sara Catley

One thought on “Terms and conditions apply!

  1. This would be a welcome move by many ordinary people, in my opinion. Simplification, and plain English being mooted as forward thinking is, indeed, radical. However, the test will come, in court, when the ‘interpretive’ minds of our learned judges make a mockery of intent behind each Oxford English word. To pataphrase Aristotle, the common man uses plain meaning, and ‘wise men’ will make the meaning plain. Then judges will interpret the wise mens meaning, and make the plain meaning different again!

    The legal dictionary publishers will also love the whole idea of using plain English instead of legal variants,

    I look forward to hearing more on this subject by others. Genuinely interesting idea. Let’s all hope its not a novel idea.

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