With every passing game, the debate surrounding the use of Video Assistant Referees “VAR” in the English football Premier League continues to dominate the sporting airwaves. Yet football’s latest fixation with how to interpret the English language is an issue similar to that faced by many lawyers on an almost daily basis – how to interpret a contract.
The new protocols dictate that the VAR can recommend that an on-field decision of the match referee is reviewed based on that on-field referee’s “clear and obvious error”. For those of us who enjoy the post-match analysis, we find that the traditional panel of ex-professional football pundits are spending less and less time arguing over matters such as whether you can or cannot “win anything with kids” (as ex-Liverpool player Alan Hansen so [in]famously quoted), but rather engaging in passionate discourse over quite what constitutes a “clear and obvious error”. The language itself may be straightforward, but its application is proving to be far from it and despite the hours of debating (and indeed berating), it would seem that we are no closer to reaching an understanding.
Clear Drafting; it’s Obvious
The issues surrounding the interpretation/application of VAR’s “clear and obvious” rule is yet another example of how subjectivity and ambiguity breed conflict. In this case, it is the laws of the game that are in dispute. However, the principles are the same as if they were applied to any contract – drafting that is open to interpretation and contains subjective, ambiguous wording will face challenge.
When writing an agreement, the drafter should adopt the mind-set of a third person and think about how the drafter’s words would be interpreted by an individual with no connection at all to the contract. They should remember that the statement “I know what it means” is not the same as “it means what I said”. Clarity will not always be the aim when you are drafting an agreement, and subjectivity or ambiguity can, on occasion, be of benefit. However, what is essential is that you are aware of the risks associated with this approach, and do not get caught in its trap by accident. Should a dispute over a subjective or ambiguous contract term result in court action, such courts may then have recourse to matters out-with the drafting to inform the court’s understanding of its true meaning. This potentially opens the doors to reliance on external facts that were not intended to influence the agreement between the parties, and only serves to increase costs and time spent (both of which are already likely to be substantial) in resolving the matter.
Where clarity is desirable, some key tips to adopt are to:
- use plain, ordinary wording. Instead of saying “For the avoidance of doubt”, just stick with “If”;
- keep sentences short;
- use objective criteria to measure contractual compliance (the subjective “clear and obvious” test is very much a case in point); and
- check grammar thoroughly. A comma in the wrong place can change the meaning of a sentence, which can change the meaning of a clause, which can change the meaning of an agreement.
Whilst it is pleasing to hear such an avid discussion over the issues of interpretation of the laws (albeit of the game rather than the land), it must be recognised that the issues surrounding VAR just as readily apply to contractual interpretation. A failure to give rigorous attention to the drafting of your contracts is every bit a clear and obvious error.
Please get in touch with your Brodies contact if you would like any assistance in drafting your agreements.
On November 20, 2019