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Mickey Mouse or Mucky Minnow - Plain English
Plain English is like apple pie; you have to like it. I heard a story some time ago, and it was on Radio 4, so it must be true, which illuminates one small corner of the debate about Plain and Legal English, and the dangers of plain speaking. Just to be clear, the PE'ers say that we must use non-technical, but clear language. The fuddy-duddies say we should have language which is exact, and clear at all costs, but only as complex as is necessary to achieve this.
The story relates to a famous libel case, Aldington v Tolstoy. The details are not relevant, but involved allegations, found to be false, of misbehaviour after the second world war by British officers. There had been a series of libel cases where the juries had awarded overly huge sums by way of damages. Courts have never liked such awards, and the judge, no doubt leaning forward amicably, and in an unnervingly chummy manner, to the jury, exercised his 'plain English' skills: -
The jury retired, considered, deliberated, perhaps spun a coin, and found for the Plaintiff. The judge asked them what damages they awarded. 'One million pounds' came back the clear and confident answer. The jury anticipated approval from his lordship. I fact it proved a severe embarrassment to the judge.
There had been an unsuccessful communication. The judge had in his own, plain speaking common-sense, friend of the people, 'I'm not out of touch' way, used the phrase 'Mickey Mouse Money' to mean stupidly large awards. The jury heard the same phrase, heard the same plea for common-sense, and had taken it in quite the opposite way. They heard him to mean an 'insignificant small award.'
If the judge had perhaps constrained them against awarding 'mucky minnow' damages, the meaninglessness of his direction would have been clear. His attempt at plain English would have been seen to be plain nonsense. Instead, he said something to which everyone who heard it could apply a meaning, but it had two different meanings according, perhaps, to the class of listener.
I am all in favour of Plain English. It is not however as simple a story as some would wish. Contracts cannot safely be simpler than the world they regulate, and I would prefer to write clear English than plain. Sometimes I just wish I could write clear English. Clients should, we hope, appreciate just how much extra work goes into achieving good English with safety.
For those wanting to take a look-see at the cobber mango, see the Plain English in law web-site. I heartily recommend it.
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