A crib sheet on drafting schedules (Part 2): time to actually start drafting

You may recall our article from a few weeks ago:  'A crib sheet on drafting schedules: 7 top tips.'

https://twitter.com/LexisUK_News/status/492636693061971968

Today's post follows on from that article. It sets out six tips on what you need to think about whilst drafting.

Tip 1: Be consistent

Is there any standard form precedent or favoured wording used by your law firm or company?

Is there any standard form precedent or favoured wording used by your client?

If the answer to the questions above is 'yes' and you want to deviate from them, is there a good reason to do so? Is it allowed? If the answer is 'no', is it possible to borrow from or repurpose similar schedules?

Tip 2: Be focussed

Who is your primary audience?

Who is your secondary audience (if any)?

Have your audience in mind when drafting and don't forget that—horror of horrors—it may eventually need to be considered in court.

Tip 3: Be clear

Have you avoided jargon, where possible? Depending on the context, legal terminology should be avoided.

Remember that the schedule may need to be translated into another language (whether as part of the agreement as a whole or as a stand-alone document) or may need to be read by people whose first language is not English.

Furthermore, the Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) may apply. These regulations state that a seller or supplier must ensure that any written term of a contract is expressed in plain, intelligible language. You should also check whether any other 'plain English' laws or guidance apply (eg: under the Financial Conduct Authority (FCA) Handbook).

Tip 4: Be concise

To what extent is it possible to simplify concepts? Volume of material does not necessarily equate to quality. Somewhat counter-intuitively, it can often more time-consuming to write less but, in the end, this may help end-users understand the schedule better.

Furthermore, the more that is written the more it is likely that the front-end of the agreement is contradicted by terms in the schedule.

Focus on the schedule's core objectives.

Tip 5: Be a lawyer

Have you checked the parties to the schedule? Do they differ from the front-end of the agreement? If so, why? What risks does this present? How would the provisions of the schedule be enforced on any non-contracting parties (if at all?)?

Have you double-checked to ensure that the schedule is referred to in the front-end of the agreement?

How does the schedule link to other relevant clauses in the agreement, in particular: payment and force majeure provisions?

Tip 6: Be a futurologist

Does the schedule need to be kept up to date? Who will be responsible for doing this?

Are any relevant dates diarised? If not, how will your client be notified of any relevant dates?

What change control provisions are there in the schedule or the front-end of the agreement? If they are in the front-end of the agreement, how do they work in the context of the schedule? Are there any 'change control' or 'variation' provisions that apply to the schedule? Where are these located? Should there be separate specific provisions for the schedule?

As we mentioned previously, schedules can be time-consuming to draft and typically left to the last moment. How do you manage? Do you have any handy tips? Do let us know below.

In the meantime, here are some useful links:

On plain English:

https://twitter.com/gdsteam/status/496233818919936000

On understanding the unintelligible:

https://twitter.com/LexisNexis/status/474615410823012352

And finally here's a link to LexisNexis’s recent research into proofreading and document review: click here.