5th April 2022
It is nice to be cited and complimented in the Houses of Parliament.
This is the Green party peer Baroness Jones mentioning one of my (many) bugbears in the recent debate on the Nationality and Borders Bill:
(Hat-tip to CJ McKinney for spotting this.)
So I suppose this is the time to set out this bugbear more fully.
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Imagine – even if you are not a lawyer – that you are writing some legal or other formal text.
(The verb ‘to draft’ is used for this strange activity.)
Imagine now you have drafted something – but you realise that it is not spot-on.
The question is what you do next.
Do you go back to the text and amend and improve it until it does say what you want it to say?
Or do you just add a new sentence, that starts “For the avoidance of doubt…”?
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In my opinion, the term “for the avoidance of doubt” is the hallmark of shoddy legal drafting.
If you are ever presented by a lawyer with an original formal document that contains this phrase, you should cross it out with your brightest coloured pen or pencil.
And then sack the lawyer.
The only time the term is permissible in a formal document is if you are doing a rescue job, amending someone else’s shoddy original text.
In that circumstance, even the strictest lawyer may have no other option but to use the dreaded term, as reframing the relevant clause or other provision may not be a realistic option.
But apart from that one situation, it is a danger sign in any formal document.
It means the author of the substantive clause or other provision is conscious that the formal text is vague or ambiguous, but that he or she cannot be arsed to make the text clear and precise.
The use of the term in informal writing is less of a problem, though it still indicates sloppiness in expression.
(And the keen-eyed of you will note that the preceding sentence avoided using the term.)
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So thank you Baroness Jones for the parliamentary mention and commendation of this view.
And, for the avoidance of doubt, this stricture also applies to me and other legal bloggers.
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I understand your point, but the phrase ‘avoidance of doubt’ may be usefully applied in ‘non-legal’ texts, where the initial version may be shorter and easier to take in, but then with clarification following in case some readers are not up to speed on the issue. Precise legal wording can be impenetrable for the layperson, so a slightly ambiguous treatment can be more effective as a first ‘shot’ at explanation.
I am not a lawyer, but I sometimes find it to be a useful phrase. The documents I draft for the Executive Council of my organisation are for a very international audience, few of them with English as their mother tongue.
“FTAD” allows me to emphasise things, or rephrase them, or sometimes just (effectively) say something twice.
For reasons I am at a complete loss to explain, “Doubt”, when used in this specific setting, always suggested an eccentric relative with a particularly unusual name.
Indeed, this entire turn of phrase somehow feels as though it should be related, Lord of the Rings style, to the Sackville-Baggins’ – cousins to Bilbo. He detested his cousins with a fair degree of fervour – and it does rather feel as though we should afford that expression a similar place in our affections:
“ ‘Doubt’ McLintock – boorish letch, drunkard at parties. Black Belt in halitosis. To be avoided in all social gatherings. Or just simply avoided.”
Out of somewhat idle curiosity, I’m minded to ask if this principle extends to other legal expressions? I’ve always found, “upon information and belief” to be rather intriguing. It was once translated for me to: “We can’t prove it yet, your honour, but we’re pretty confident we can if you’ll only agree to our disclosure requests…”
For the avoidance of doubt, the avoidance of doubt is that which is sought in litigation. (Or as a lay person do I have that wrong?)
I was about to offer you a very good example where the use of the phrase might be appropriate but dammit you’re right.
Rather than follow your advice “If you are ever presented by a lawyer with an original formal document that contains this phrase, you should cross it out with your brightest coloured pen or pencil”, a better course would be to copy and paste this post to the lawyer.
And then sack them.
You are a harsh man Andrew
In a bowl, beat 100g caster sugar, 100g butter, 2 eggs, 100g self-raising flour, half a teaspoonful of baking powder and a tablespoonful of milk. For the avoidance of doubt, no eggshell should be included with the eggs, and no weevils should be included in the flour.
“In a bowl, beat 100g caster sugar, 100g butter, 2 eggs, 100g self-raising flour, half a teaspoonful of baking powder and a tablespoonful of milk.
Be careful that no eggshell is included with the eggs, and that no weevils are included in the flour.”
Be aware that there is a standard for insect ppm in flour. It’s in ppm as parts are all that are left after the inline disrupters.
You are asking the person to stand in a bowl and beat the ingredients together.
The person reading this may have some doubt about these instructions.
You then say that the person can avoid doubt by following your instructions about eggshell and weevils.
The meaning is very clear, but probably not what you intended.
In the run up to my mother’s second NHS hospital inquest earlier this year, the Coroner ruled ‘I therefore conclude that the Article 2 should be engaged in respect of these two specific issues only – (a) and (b) above.’ In other words issues (c), (d), (e) and (f) did not engage Article 2 in his view.
We asked him for clarification and he replied, repeating the same formulation of words. However, a few pages later in the Ruling, he wrote ‘For the avoidance of any doubt, the court has determined that Article 2 is engaged, and the inquest will therefore proceed as an Article 2 inquest.’
After the inquest, we didn’t believe that the inquest had been conducted as though issues (c) to (f) had engaged Article 2. We sent a Letter before Claim to ascertain whether the Coroner maintained that the whole inquest had been Article 2 – which he did. Hmmm.
the avoidance of doubt should be enshrined in law
It does in this commenter’s opinion have its uses where the clause is perfectly serviceable as drafted, but there is a concern that the other party (perhaps less sophisticated, perhaps not well advised) labours under an illusion about what the clause does, or there is a concern that their commercial guys may do so in future. In that instance, the FAOD serves a commercial rather than a purely legal purpose.
Of course, in all cases the ‘FAOD’ wording itself is unnecessary and meaningless. But find me a commecial contract without unnecessary and meaningless content…
Hmm, anytime I use this, it’s to keep a semi-literate non-lawyer person on the other side of the table happy. You have assured them that clause 9.3 does not mean that we will steal their warehouse / yacht or open a brothel etc. You have demonstrated that logically. He wants to sign the deal, but he is still beset with a nameless syntactical dread, deriving from his semi-literacy. This condition is incurable and is impervious to mere logic. So you add in: “For certainty, Clause 9.3 does not permit any party to operate a brothel or to nick Fred’s yacht” etc :)
In my experience, much superfluity of this ilk is designed to get the deal over the line. You know it’s not needed legally, but you add it to assuage the superstitions / massage the egos of the semi-literate.
For what it is worth, that doyen of legal drafting, Ken Adams, author of the Manual of Style for Contract Drafting, agrees without equivocation:
https://www.adamsdrafting.com/for-the-avoidance-of-doubt/
He recommends just deleting it: sometimes it introduces surplusage, sometimes a useful clarification, but often it is just rhetorical throat-clearing.
If you are really lucky, a sentence added “for the avoidance of doubt” can import more doubt than was present in the original wording.
That is a link to an excellent post – thank you for sharing
You are welcome.
Far be it from me to impugn any parliamentary draftspersons, but I refer you to section 4(2) of the Law Reform (Married Women and Tortfeasors) Act 1935:
“For the avoidance of doubt it is hereby declared that nothing in this Part of this Act … ”
https://www.legislation.gov.uk/ukpga/Geo5/25-26/30/section/4
That is the earliest I have found in UK legislation (excluding later insertions into earlier acts) but it seems to have come into regular use from the 1940s onwards. Exigencies of wartime intruding into subsequent everyday life, perhaps? O tempora, o mores.
Such things make me sad.
Spot on, DAG. The same strictures could and should be applied to other wordsmithing professions.
“In a bowl, beat 100g caster sugar, 100g butter, 2 eggs (yolk and white, but without any eggshell), 100g self-raising flour (free from weevils) , half a teaspoonful of baking powder and a tablespoonful of milk.”
:-)
You win…for now
In a bowl, beat 100g caster sugar, 100g butter, the yolk and white of 2 eggs, 100g self-raising flour (sieved), half a teaspoonful of baking powder and a tablespoonful of milk.
Will the milk be regular conventional milk or organic milk, i.e, for the avoidance of doubt be without the use of chemical fertilizers, pesticides, or other artificial chemicals?
It can be useful when trying to make a clear distinction between morality and legality, in order to indicate that by sugggesting a legal or factual defence of something you are not asserting a moral defence. This can be handy when dealing with people who might otherwise interpret your technical comments as condoning the actions referred to.
“For avoidance of doubt, I unreservedly condemn the Russian invasion of Ukraine and fully support the actions of governments worldwide to impose sanctions on both the Russian state and individuals connected to it. However, any individual subject to such sanctions in the UK has the right to challenge those sanctions in court, and there may be cases where those sanctions are judged to be unjustified”.
“For avoidance of doubt, I fully agree that Rolf Harris was rightly convicted and sentenced for the crimes of which he was accused. However, that does not change the fact that ‘Two Little Boys’ was a number one single, and therefore cannot be deleted from a historical list of number one singles”.
Of course, some people still won’t read the clarification and will still assume that your statement that even oligarchs have rights is indicative of support for war crimes, or that your refusal to rewrite historical facts is evidence of support for sexual abuse. But it does help to minimise the number of people who are that wilfully uncomprehending.
(And, for avoidance of doubt, I entirely agree that the phrase should not appear in formally drafted texts 😀).
Yet it’s not necessary to use FTAD in either case as you unreservedly condemned one thing and full agreed with the other. There’s no doubt about either and you can point that out to anyone stupid enough to miss the point.
Yes, but the point is that a surprisingly large number of people are stupid enough to miss the point unless you double bag it when making the point.
If they’re that stupid you’ll have lost them after “For the avoidance of doubt …”
In my experience it arises in negotiating the contract rather than primary, or even secondary, drafting, and serves to ‘clarify’ a point which is not understood in the main text by some party to the negotiation. It’s probably cheaper and quicker, at this stage, to write it in that way. In the longer run, in front of a Judge who agrees with DAG, who knows?
Some mathematicians take pleasure in the precision and terseness of their wording. Lesser souls have to hope for a clearer, usually longer explanation and a worked example. Regrettably some mistake precision and (over) terseness for cleverness.
As I see it ‘Avoidance Of Doubt’ ought not to add any further legal meaning but instead to head off slippery customers. Imagine you were drafting a contract for Messrs B Johnson (TA UltraQuick Deliveries) to deliver 10 tonnes of potatoes to a specific place at a specific time. Possibly full and complete particulars would avoid doubt but civilised lawyers might be tempted to put in FTAD instead of ‘if you don’t, the boys will break your legs – and then sue you’. Of course a wise commercial director would avoid being reliant on the likes of Messrs B.
For the proverbial avoidance of doubt you are correct David! Thank you!
I don’t think any well written document, legal or otherwise, needs this redundant phrase. I’ve written many proposals and specifications and have never felt the need to express the lack of doubt about something which was already clearly defined. If anything the phrase draws attention to potential weaknesses in the document, since the author clearly had doubts about it.
Yes, I think that is right. The problem with the phrase is that no one knows what it means. Is it superfluous or does it modify the meaning?
Another candidate for dispatch to Coventry: E&OE – “Errors and Omissions Excepted”.
Which always feels like double-speak for, “I may have this wrong, but, meh, just go with it…”
The phrase may be redundant, but at least it’s honest, unlike the politician’s ‘Let me be / I have been absolutely clear that…’ which usually serves to introduce some particularly obfuscatory statement or other.
Thanks David, initially I did have some doubts about this, but you have quelled them.
I agree with you if you limit your comment to directly “legal” text but do not agree when you make your assertion broader by adding “or other formal text”. When words are potentially tested in a court, especially in documents drafted specifically for such use (pleadings, statutes etc.) your point is clearly correct.
Many formal documents, however, may ultimately appear in court proceedings but on more than 99% of occasions will never get near to a court. This does not mean that there may not be legitimate conflict about their interpretation which will be resolved between the parties in some other way. Some of the other comments cite commercial agreements and much of my experience has been in working with collective agreements, particularly between employers and trades unions.
I am not siding with some of the other comments where the suggestion is that anybody who does not interpret a document like a lawyer is “illiterate”, “stupid” or a “slippery customer”. I have lots of experience, however, of the need to draft documents so their meaning is potentially “watertight” should it ever go to court, but which could lead to repeated queries and conflicts if left without further clarification.
In such circumstances, the phrase “for the avoidance of doubt” can be a valuable way of clarifying future interpretation, while not extending the principle behind a specific aspect of the agreement. This can be critical in avoiding predictable future conflicts which will need to be resolved between people who were probably not directly involved in the negotiation. Remember that the environment in which the resolution will take place may not have the advantages of time, preparation and a “judge” to maintain order in strict textual interpretation!
Any document that defines what is to be done and what isn’t may end up in court to resolve a dispute. Surely the point is these words are unnecessary if you draft a document properly. It doesn’t matter whether it’s a legal document or not.
Thank you Kevin. I agree and that is one part of what I was trying to say, which is why careful drafting is necessary. My other point is that in many circumstances disputes are resolved in other, more informal ways. In some circumstances, I have experience of an example using a phrase like “for the avoidance of doubt” being helpful in resolving such disputes more quickly, avoiding the need for an issue to end up in court.
“For the avoidance of doubt” is always followed by a statement of what the outcome should be for one or more specific cases.
I understand that there is a legal maxim of “Hard cases make bad law”. The specific cases following “FTAD” are then the hard cases which this maxim tells us will make bad law.
Then cue the endless legal arguments about whether some particular instance is or is not the same as one of the specific cases covered by FTAD.
This is a really good point that hadn’t occurred to me, and which I think applies to any writing, not just legal.
I suppose it also applies to ‘to be clear’.