PLAIN LANGUAGE DRAFTING GUIDELINES FOR THE CONSTRUCTION INDUSTRY

This document is presented in 4 parts:

A Introduction to plain language writing

B List of summarised plain language drafting guidelines
C Brief explanation of plain language drafting guidelines
D Plain language compliance checklist

A INTRODUCTION TO PLAIN LANGUAGE WRITING

1 Purpose of this document

This document is prepared as a recommended set of plain language drafting guidelines for the construction industry such as
construction contracts, consultancy contracts, and legislation affecting the construction industry. This document focuses only
on plain language drafting and does not include any policy matters for example on how risk should be allocated between the contracting
parties. These guidelines are universally applicable.

2 Benefits of modern plain legal writing

The benefits of modern plain legal writing have been documented in many industries – including how adopters of plain language
contracts have saved time and money. Numerous parliamentary drafting offices around the world have also adopted plain legal writing
when drafting legislation.

Construction contracts have been moving towards adopting plain language – but somewhat slowly. Support for plain language writing
from the industry has however been strong. For example, Standards New Zealand has commissioned a review of the most commonly
used construction contract in New Zealand the NZS 3910:2013. The first published update from the Chair of the P3910 committee dated
2 March 2022 includes several agreed principles. Among the words and phrases that reflect support for writing in plain language from
the P3910 update include: ‘clarity’, ‘whether it is understandable to the parties’, ‘efficiency’, ‘simplicity’, ‘concise’, ‘precise’, ‘easy to
follow’, ‘useable’, and ‘practical’.

The construction industry may be complex, and may require complex contract provisions, but there is enough empirical evidence to
show construction contracts, consultancy contracts, and legislation can be written in modern plain language – without losing the original
drafter’s legal intent. Some ‘before and after’ examples of clauses are included in this document.

3 Who might benefit from plain language?

The short answer is all stakeholders in the construction industry.

Primary users: These are parties to the contract whether construction contract or consultancy contract and contract administrators (for
example the ‘engineer’ under NZS3910), and other construction professional involved in the project such as architects and quantity
surveyors. The contract administrators are likely to use the contract ‘every day’. Parties to the contract and other advisors are expected
to read, understand, and know their rights and obligations under the contract.

Secondary users: These are those who may use the contract on one-off occasions whenever needed. They may include those involved
in specialist advisory services at contract formation, during construction, or during dispute resolution. They include lawyers, expert
witnesses, contracts and claims consultants, and dispute resolvers such as mediators, adjudicators, arbitrators, and judges.

4 What is plain legal language?

For purposes of this document, as a starting point, plain language may be defined as language that is easily understood by all users of
the contract, and where re-written, preserves the legal intent of the drafter.

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At this stage, it is also worth considering the official, more general definition in Part 1, s4 of the Plain Language Bill currently before the
New Zealand Parliament:
Plain language means language that—
(a) the intended reader can easily understand after 1 reading; and
(b) is clear, concise, and well-organised, and follows recognised guidelines of plain language writing

This is broadly in line with the NZS 3910 committee’s agreed principles outlined earlier, with the additional idea of expecting readers to
understand after (only) one reading and compliance with recognised plain language writing guidelines.

5 Measuring the standard

The plain language standard of a contract or other document can be measured. A contract may be considered to have achieved an
acceptable standard if the drafting style of all clauses are consistent with any modern plain language writing guidelines found anywhere
in the world. These may be plain language guidelines published by government or private bodies and include parliamentary drafting
guidelines or other government guidelines on plain language writing published in New Zealand, New South Wales, or other jurisdictions.
This can be tested simply using a guideline checklist or using readability formulas.

The ultimate way to measure would be through user-testing. But this is harder to do. Note: If user-testing is to be done, the contract must
be tested on both expert and equally importantly typical users of the contract, whether primary users or secondary users as defined
earlier. The typical primary user may be those from client organisations or developers, contractors from various tiers, and reasonably
competent contract administers or day to day advisors of the NZS3910 such as an engineer, architect, or quantity surveyor.

6 The current standard

From a purely plain language writing style perspective, when checked against plain language guidelines, some of the documents
currently found in New Zealand are better than comparables found internationally. For example, New Zealand legislation is plainer than
many other around the world. And the current NZS3910:2013 is better than many other standard forms of construction contracts in the
world including age-old ‘tried and tested’ contracts such as the UK JCT contracts, the UK government contract GC/Works/1, and
commonly used construction contracts in Singapore, Malaysia, Hong Kong, and even FIDIC 2017.

7. The future

Like other industries, there may well be progress in the construction industry towards developing smart construction contracts in future.
This will not happen overnight. Smart contracts are not just digitalised contracts. In years to come, if contracts are to become a smart
contract, partly or fully, it would require cooperation between construction contracts experts and computer programmers to convert
natural language into computer codes. Research shows the effectiveness of this conversion process depends on how well the natural
language was written in the first place.

Contracts written in modern plain language will likely be coded more accurately and more efficiently. Contracts written in traditional
legalese will take longer to code and have a greater chance of discrepancies between the coded version and the original natural
language version because of higher chances of variability in interpretation.

One other possibility to consider even before any move towards developing smart contracts is for construction contracts to be written
and presented in flow-chart format. This may be of interest to some, particularly for those with a construction technical background such
as engineers. If presented well, it may also help others including lawyers.

8 Basis of set of drafting guidelines

Parts B and C outline a set of non-controversial plain language drafting guidelines which are considered most relevant to the
construction industry. They are consistent with most if not all current general plain language writing guidelines in New Zealand and
around the world. They are all also anticipated to be consistent with what might eventuate from the New Zealand Plain Language Bill and
the imminent International Organization for Standardization’s ISO/WD 24495-1: Plain language — Part 1: Governing principles and
guidelines. To keep this document as short as possible, detailed justifications and references including references to case law and other
published materials have not been included.

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B LIST OF SUMMARISED PLAIN LANGUAGE DRAFTING GUIDELINES

The following is a list of recommended plain language drafting guidelines in summary. Part C expands on these guidelines with a brief
explanation of each.

No Heading Summary of guidelines

1 Contract structure Structure the contract clauses in a logical order
2 Definitions Avoid excessive definitions especially definitions of ordinary English words
3 Average sentence length Keep the average words per sentence to about 20
4 Active and passive sentence Prefer active sentence structures over passive ones, aim for 80% or more active
structures sentences
5 Brevity Keep the clauses and the whole contract as brief as possible, but not at the expense
of clarity
6 Multiple cross referencing Avoid or at least minimise multiple cross referencing
7 Lists and numbering Use lists and numbering generously
8 Headings and sub-headings Use clear headings and sub-headings but do not overdo them
9 Font type, font size, use of white Use an appropriate font type and size to suit the medium.
space, and margin justifications Use white space generously.
Keep left hand margins justified, right margin ragged or justified.
10 Archaic language Do not use archaic language
11 Unnecessary legalism Do not use unnecessary or redundant legalism
12 Doublets and triplets Omit redundant doublets and triplets
13 Simplest words Use the simplest word that carries the meaning intended
14 Legal terms of art Preserve necessary legal terms of art especially if there are no plainer alternatives
15 Gender-neutral writing Write in gender-neutral language using appropriate techniques without the
cumbersome ‘he or she’ and ‘him or her’
16 Commonly recognised legal Use words and phrases in the contract that are consistent with established legal
terminology terminology
17 Consistent use of words Use words consistently to mean one thing throughout the contract
18 Parenthetical numerals Either spell out numbers or use numerals - not both
19 Serial comma (or Oxford comma) Use the serial comma, also known as the Oxford comma
20 And/or Do not use the heavily criticised ‘and/or’

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C BRIEF EXPLANATION OF PLAIN LANGUAGE DRAFTING GUIDELINES

The following is a brief explanation of each of the plain language drafting guidelines summarised above. Detailed justifications and
references including references to case law and other published materials have not been included.

1 Structure

Structure the document clauses in a logical order and not a random order. For example, construction contract clauses may be arranged
in the order of work that might be done or grouped together taking the project management approach of clustering clauses under time,
money, and quality obligations. Under the latter option, clauses might be grouped under general obligations and contract administration
provisions, time obligations including commencement, programme, extension of time, through to completion, financial clauses may
include insurance, payment, and retention, quality clauses may include clauses referring to specifications, defects, and liability for
defects, followed by termination then dispute resolution clauses.

2 Definitions

Avoid excessive definitions especially definitions of ordinary English words or if some words or phrases can be defined within the
clauses. See for example the definition of liquidated damages within the current NZS3910 clauses instead of adding this to the
definitions list. Avoid definitions to create ‘deemed provisions’ or ‘legal fiction’ with words that are wholly unconnected – for example,
defining ‘plywood sheets’ to include ‘steel sheets’.

When defining, the first letter of every defined word may be a capital letter but not the whole word. Whole words in capital letters distract
readers. Definitions are best located at the beginning of the contract.

3 Average sentence length

Keep the average words per sentence to about 20. Note: average does not mean every sentence must have 20 words or fewer. Some
guidelines suggest an average of 18 or even 15 words per sentence. Lord Denning’s writings probably average well under 15 words per
sentence.

4 Active and passive sentence structures

Prefer active sentence structures over passive ones. Eg the active sentence style ‘the contractor must submit the programme’ is
preferable over the passive ‘the programme must be submitted by the contractor’. Active sentences are normally shorter and get the
message across more effectively. Aim to keep the passive sentences to no more than about 20% of the whole contract. Judge Painter (a
former UN appeals court judge from the US and plain legal writing expert) recommends keeping passives to under 18%.

It is worth noting that the NEC contracts, which is increasingly becoming popular in the UK and elsewhere, and which claims to be
written in plain language uses the present tense style. Thus: ‘the contractor submits the programme’. Although this may be legally
defined to mean the same as the earlier options, and is even shorter, it may be seen by some as being ahead of its time for many in the
construction industry at this stage.

5 Brevity

Keep the clauses and the whole document as brief as possible, but not at the expense of clarity. Only include what might be needed in a
set of standard set of document such as a standard set of terms of contract. Anything uncommon or peculiar to only limited types of
projects may be included in other documents forming the contract such as special terms of contract or the preliminaries.

Adopting modern plain writing guidelines when re-writing an existing document would normally lead to a reduction in the overall length of
the document – depending on how traditionally styled the original document was. See the following before and after illustrations:

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 Before: No modification, amendment or waiver of any of the provisions of this Agreement shall be valid unless it is made in writing
by way of supplementary agreement specifically referring to this Agreement and duly signed by the Parties or its duly
authorised representatives. The provision in respect of such amendment, variation or modification thereof shall be
supplemental to and be read as an integral part of this Agreement which shall remain in full force and effect as between the
Parties. [80 words]

After: No changes to any of these terms of contract are valid unless agreed by the parties in writing. [18 words]

Before: This Contract shall be deemed to be a [name of jurisdiction] Contract and shall accordingly be construed according to the
laws for the time being in force in [name of jurisdiction] and the [name of jurisdiction] Courts shall have exclusive
jurisdiction to hear and determine all actions and proceedings arising out of this Contract and the Contractor hereby
submits to the jurisdiction of the [name of jurisdiction] Courts for the purposes of any such actions and proceedings. [69
words] [words in bracket added]

After: [Name of jurisdiction] law applies to this contract. [6 words] [words in brackets added]

Before: Insofar as the Contractor is responsible for the design of any part of the Works, he shall have in respect of Defects or
insufficiency in such design the like liability to the Employer, whether under statute or otherwise, as would an architect, or
as the case may be, other appropriate professional designer holding himself out as competent to take on work for such
design who, acting independently under a separate contract with the Employer, had supplied such design for or in
connection with works to be carried out and completed by a contractor not being the supplier of the design.’ [100 words]

After: The Contractor owes a reasonable skill and care obligation for design as would a professional appointed independently.
[17 words]

6 Multiple cross referencing

Avoid or at least minimise multiple cross referencing. Referring to just the appendix is fine, but multiple cross referencing across several
clauses confuses the reader.

7 Lists and numbering

Use lists and numbering generously. These help break up paragraphs into shorter sentences. The current numbering system in
NZS3910:2013 for example is clear, consistent, and effective.

8 Headings and sub-headings

Use clear headings and sub-headings but do not overdo them.

9 Font type, font size, use of white space, and margin justifications

9.1 Font type: Some guidelines suggest (although the evidence of the benefits are not universally agreed), that headings
should be written in sans serif fonts like Arial while paragraphs of texts be written in serif fonts. The argument being the
headings direct the eyes downwards with sans serif fonts, while the serif fonts like Times New Roman (with the feet at
the end of each letter) used in paragraphs guide the eyes sideways.

Serif fonts like Times New Roman have historically been commonly used in prints including newspapers and books.
However, recently many use sans serif fonts even in paragraphs – possibly due to aesthetic preference for a ‘modern’
look. Also note that the general recommendation for online documents is to use san serif fonts.

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 9.2 Font size: Font size is not normally an issue in drafting documents in the construction industry as there are minimal
‘small prints’, if any. The two common ones are possibly footnotes on copyright or disclaimers (which is absent in the
current NZS3910:2013).

9.3 White space: Using generous white space clearly benefits readers. The current NZS3910:2013 is exemplary in using an
appropriate amount of white space.

9.4 Margin justifications: While left hand margins are always justified. On fine balance, it appears ragged right-hand
margins are preferable for readability over right margin justification. This is because when the right margin is justified, the
spaces between words may become uneven. However, the benefits are so marginal that often the right margin
justification is preferred for its aesthetics benefit.

10 Archaic language

Do not use archaic language – for example ‘de minimis’ as found in some contracts worldwide. The main aim of the contract is to inform,
not to attempt to impress. At best archaism puts off a lay reader. Judge Painter suggests: ‘Latin is a dead language. It should remain
buried’ – perhaps it might be worth adding – in commercial or legal documents used in the construction industry. Latin or other artistic
Shakespearean writing has a part in creative writing – but not in commercial or legal documents in the construction industry.

11 Unnecessary legalism

Do not use unnecessary or redundant legalism. Words and phrases like whereas, hereinbefore, hereinafter, hereto, therein, said, and
the said are typically superfluous. A few (rare) ones may be replaced with alternative plain English words. Legalese distracts the reader.

12 Doublets and triplets

Omit redundant doublets or triplets. For example, use ‘void’ instead of ‘null and void’. If an amount is ‘due’ it is also ‘payable’, so avoid
the doublet ‘due and payable’. Just use either one - due or payable not both. New Zealand Parliamentary guidelines and most if not all
modern legal drafting guidelines in the world have omitted redundant doublets and triplets.

13 Simplest words

Use the simplest word that carries the meaning intended. Heed Einstein’s advice: ‘Make everything as simple as possible, but not
simpler’. For example, use the single syllable word ‘use’ instead of the three-syllable word ‘utilise’.

14 Legal terms of art

Preserve necessary legal terms of art especially if there are no plainer alternatives. Research shows legal terms of art account for under
3% of conveyancing contracts and under 1% of construction contracts. Some examples are: ‘reasonable skill and care’, ‘fitness for
purpose’, ‘practical completion’, and ‘liquidated damages’. If even terms of art are to be modernised, heed Einstein’s second part of his
advice: ‘Make everything as simple as possible, but not simpler’. Do not overdo it. Being ‘careful’ may not convey the same legal
meaning as exercising ‘reasonable skill and care’.

15 Gender-neutral writing

Write in gender-neutral language but not by using the cumbersome ‘he or she’ and ‘him or her’. Instead, use other techniques such as:

(i) writing in plural (eg All subcontractors must … They …),

(ii) repeating the noun (The engineer must do x … then repeat … The engineer must do y … instead of … He or she must do y),

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 (iii) using the passive sentence structure and avoiding the use of any gender (eg ‘the programme must be submitted by ….’ instead
of ‘He or she must submit the programme …’), or

(iv) adopt the modern use of the word ‘they’ even when referring to the singular person.

16 Commonly recognised legal terminology

Use words and phrases in the document that is consistent with established legal terminology. See three examples below.

(i) Liquidated damages is a well-established legal phrase, so use liquidated damages.

(ii) The word contract means legally binding relationship that comprises various components such as agreement, consideration,
intention, and capacity. So, use contract to mean a legally binding contract as distinguished from the common word
‘agreement’. Using two words like agreement and contract interchangeably can create confusion and possibly even disputes.
See the well written consistent use of the word contract throughout the Construction Contracts Act.

(iii) Use the phrase ‘terms of contract’ to cover all types of terms of contracts including conditions, warranties, and innominate
terms. Avoid using the phrase ‘conditions of contract’ interchangeably with the phrase ‘terms of contract’. Why? Because not
all ‘terms’ are ‘conditions’ as defined in law. Some terms may be conditions as defined in law and others may be mere
warranties. Use the word conditions consistently as defined in law – to mean a fundamental term of a contract that goes to the
root of the contract, a breach of which entitles the other party to end the contract. Conditions may of course also be used as a
normal English word meaning - a situation that must exist before something else is permitted - like in ‘condition precedent’.

17 Consistent use of words

Use words consistently to mean one thing throughout the contract. Jeremy Bentham may be credited for expressing this as: ‘never
change your language unless you wish to change your meaning, and always change your language if you wish to change your meaning’.

Example 1: The word ‘determination’ has multiple meanings. It could mean to decide (eg engineer’s determination or adjudicator’s
determination), to bring an end to the contract, or firmness of purpose. The recommendation is to either use alternative words where
possible or to use this word consistently in one sense. NZS3910:2013 currently uses the word determination primarily with reference to
adjudicator’s determination and to a limited extent the engineer’s determination, but never to mean to end the contract. Sensibly, the
word termination is used consistently to refer to ending the contract.

Example 2: The word ‘shall’ is commonly assumed to mean ‘must’ or something mandatory. And that is indeed normally correct.
However, it can also mean the contrary ‘may’ – meaning optional. And to make things worst there are at least 6 other meanings of shall!
If used carefully and consistently to only mean one thing for example to mean the mandatory ‘must’, this may be acceptable. However,
most contracts, including NZS3910:2013, do not use the word ‘shall’ consistently to mean one thing.

A leading authority on plain legal writing, Bryan Garner, highlights the problems of using the word ‘shall’ in A Dictionary of Modern Legal
Usage. He suggests the word ‘shall’ has multiple meanings, even in midsentence, and ‘runs afoul of several basic principles of good
drafting’. Most other modern legal drafting authorities also suggest omitting the use of shall. New Zealand legislative drafters dropped the
use of shall a very long time ago.

18 Parenthetical numerals

Either spell out numbers or use numerals - not both. Do not spell out numbers followed by parenthetical numerals like fourteen (14)
days. Some guides suggest using words up to ten and numerals beyond ten. Others suggest just use numerals throughout and only use
words when starting a sentence with a number.

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19 Serial comma or Oxford comma

Use the serial comma, also known as the Oxford comma. This is a comma put before the word ‘and’ when writing a series of words or
phrases. For example, a, b, c, and d. In British and New Zealand English, we normally omit the serial comma. In American writing, the
serial comma is typically included. Including it causes no harm. Excluding it may occasionally lead to ambiguity as to whether c and d are
to be read together or as separate items. So, it is better to just use it.

20 And/or

Do not use the heavily criticised ‘and/or’. Among the milder comments, a judge suggested its use was ‘commonly an indication that the
draftsman is not clear in his own mind about the matters with which he has to deal.’

In most cases either ‘and’ or ‘or’ will work - depending on the intended meaning. A, B, C, and D may be a string of words or phrases. If
there are two options, instead of A and/or B, write A or B or both. If a multiple of combination of possibilities must be provided, then
instead of A and/or B and/or C and/or D, write:

A combination of any one or more of the following:

(i) A
(ii) B
(iii) C
(iv) D

Contrast the clear approach shown above against the following 76-word sentence found in a traditionally styled standard form of
domestic subcontract published by the Singapore Contractors Association Ltd:

Where none of the above methods are applicable or appropriate, then valuation shall be based on the cost of plant, materials,
goods, labour and equipment necessary for the execution of the varied work plus the fixed percentage mark-up set out in
Appendix 1, which shall be deemed to be compensation for all supervision, overheads, profits and/or all other costs and damages
incurred in and/or in connection with and/or arising from the execution of the varied work. [emphasis added]

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D PLAIN LANGUAGE COMPLIANCE CHECKLIST

This checklist may be used to do a simple check on the extent to which a document complies with the 20-point plain language
drafting guideline. Compliance score between 1 (totally non-compliant) and 10 (fully compliant).

No Heading Summary of guidelines Compliance Comments

score
between 1-
10
1 Contract structure Structure the contract clauses in a logical
order
2 Definitions Avoid excessive definitions especially
definitions of ordinary English words
3 Average sentence Keep the average words per sentence to
length about 20
4 Active and passive Prefer active sentence structures over
sentence structures passive ones, aiming for 80% or more
active sentences
5 Brevity Keep the clauses and whole contract as
brief as possible, but not at the expense of
clarity
6 Multiple cross Avoid or at least minimise multiple cross
referencing referencing
7 Lists and numbering Use lists and numbering generously
8 Headings and sub- Use clear headings and sub-headings but
headings do not overdo them
9 Font type, font size, Use an appropriate font type and size to suit
use of white space, the medium.
and margin Use white space generously.
justifications Keep left hand margins justified, right
margin optional.
10 Archaic language Do not use archaic language
11 Unnecessary Do not use unnecessary or redundant
legalism legalism
12 Doublets and triplets Omit redundant doublets or triplets
13 Simplest words Use the simplest word that carries the
meaning intended
14 Legal terms of art Preserve necessary legal terms of art
especially if there are no plainer alternatives
15 Gender-neutral Write in gender-neutral language using
writing appropriate techniques without the
cumbersome ‘he or she’ and ‘him or her’
16 Commonly Use words and phrases in the contract that
recognised legal are consistent with established legal
terminology terminology
17 Consistent use of Use words consistently to mean one thing
words throughout the contract
18 Parenthetical Either spell out numbers or use numerals -
numerals not both
19 Serial comma (or Use the serial comma, also known as the
Oxford comma) Oxford comma
20 And/or Do not use the heavily criticised ‘and/or’
TOTAL SCORE

Prepared by Naseem Ameer Ali - April 2022

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