Overview

This chapter examines the ways in which legal documents are interpreted. After reviewing some judicial comments on the parlous state of traditional legal drafting, we discuss the complex series of principles – sometimes overlapping, sometimes conflicting – which courts have evolved to help clarify meaning in legal documents. In the process, we consider whether those who draft legal documents can or ought to draft so as to anticipate the application of these principles. We then consider the all-important role of context in interpreting legal documents.

We conclude the chapter by pointing out the dangers of a too-strict reliance on precedent when interpreting legal documents. A paramount principle emerges from the case law: decisions on the meaning of particular words or phrases in one document provide little or no guidance to their meaning in another. Each document is unique. To interpret it, one single question should be asked: what did these parties mean by these words in this context?

What judges have said about traditional legal drafting

Judges have not been reluctant to criticise poorly-drafted documents. Epithets have included ‘botched’, ‘half-baked’, ‘cobbled-together’, ‘doubtful’, ‘tortuous’, ‘absurd’, ‘archaic’, ‘incomprehensible legal gobbledegook’, and ‘singularly inelegant’. We will look at some examples from recent decades.

The botched clause

A 1929 settlement gave power to pay income to: