I’ve resisted it for a long time, but I’ve finally succumbed to having a blog!
Whilst solicitors do an excellent job of protecting their clients’ legal interests, I still come across too many examples of unnecessarily long-winded contracts, full of complex legal phraseology, and which do not reflect the practical needs of the parties.
Sometimes this type of contact is simply the result of sloppy drafting – the ‘here’s one I prepared earlier’ approach. However, mostly, it’s down to the fact that the solicitor does not know enough about the nature of the businesses and the transaction involved – and the client can’t afford the time it would take for him or her to find out – to be able to draft a better document. In either case the client, not being legally trained, won’t realise the limitations of the document – unless and until it is too late.
I’ve therefore decided to share some examples of poor drafting I come across and to look at how these can be remedied. (Confidentiality is obviously paramount though, so certain details will be changed where necessary.)
So, to start:
Last week I reviewed an 8 page (yes, 8 page!) confidentiality agreement for a client. It had been drafted by reputable and expensive lawyers, but they clearly did not understand the structure of the client’s organisation – and the client did not understand the complexity of the agreement.
This created 2 major problems:
1. Much of the information to be disclosed by my client would not have been protected because it belonged to organisations not covered by the agreement;
2. Disclosure of the other party’s confidential information to my client’s associated companies – which was always what was intended – would have put them in breach of the agreement.
In other words, the agreement was utterly and totally useless for the purpose for which it was intended. 8 pages of wasted rain forest!
Ideally, it would have been better to have had separate agreements with the associated companies, but – let’s get real – this was never going to happen. Accordingly, remedying the contract involved drafting tighter definitions, and providing rights for the associated companies to be able to rely upon the terms of the agreement under the Contracts (Rights of Third Parties) Act 1999.
More examples to come. Watch this space!
Tags: confidential information, confidentiality, contract, practical