There is an increasing focus on length, time and costs in court proceedings. Choice of words and clear language are important when presenting your case.
Shorter trials, judgments and proceedings
Recently, the Court of Appeal has handed down a short form judgment which extends to just under 1200 words. For those familiar with reading lengthy detailed analysis, this is certainly concise. The approach has the support of the Master of the Rolls, the head of the civil division, who has encouraged judges in the appeal court to deliver short form judgments where the appeal “raises no issue of law, precedent or other matters of general significance and the relevant facts and documentary material are set out in the judgment under appeal and are not in dispute”.
The Court of Appeal is facing major pressures and this development may be a response to this (Appeals – not so appealing after all?). It is reflective of a growing trend to reduce excessively lengthy written and oral submissions to the courts. For example, the permission of the court is required in some cases to serve particulars of claim over 25 pages and even this length is considered exceptional. The courts have the ability to give directions limiting the length or format of witness statements. Even the length of the trial itself will be carefully considered. There is a move to greater efficiencies and reduced cost.
In an earlier post we have explained that the courts’ are piloting a shorter trial scheme (Pilot scheme for shorter trials).
The length of trials can also be reduced indirectly. The court’s approach to deciding a particular legal issue may result in less argument or evidence being required. For example, when interpreting a written contract, the court may consider the background facts in the case (factual matrix) but there is now a change in focus, with the courts considering the language used by the parties in the contract.
The language used in written contracts
Language and choice of words have an important part to play in the way in which the courts interpret written contracts. If there is a dispute over the interpretation of a written contract, the courts will consider the language adopted by the parties. Traditionally, the courts have then considered what a reasonable person who has knowledge of the background facts at the time of the contract, would have understood the parties to have meant. If the court found that there were two possible interpretations, they would prefer the interpretation which was consistent with business common sense.
But recently there has been a move away from that more liberal approach, to focus more on the literal meaning of the words used. Whilst business common sense may be one factor the court takes into account, it will also consider the natural language used, even if that means that the outcome works out less favourably for one of the parties. It is not the court’s role to rewrite a bad bargain.
The language of the contract is important and careful drafting of written contracts is essential.
Less can be more but when setting out the terms of your business arrangements, it should not be at the expense of clarity.
 BS (Congo) v Secretary of State for the Home Department  EWCA Civ 53