atw: Re: New exclusions on Professional Indemnity Insurance

Stuart Burnfield wrote:
>One interesting point: the whole of statement 2 is only applicable to
financial statements. I believe it's ambiguous and could be read as
    "Advice on methods, practices or procedures
       or
    opinions on financial statements"

>but I'm told that in legalese this unambiguously means:
    "(Advice on methods, practices or procedures or opinions) on
financial statements"

To the best of my knowledge and belief, there's no such thing as "legalese".
Law degrees do not teach people to parse and construe English using a
different syntax from the one everyone else uses. Courts interpret things
using common usage, from the evidence presented and argued by the advocates
on each side. Refer to the Rogers Communications case, discussed on this
list in August:
http://www.theglobeandmail.com/servlet/story/RTGAM.20060806.wr-rogers07/BNSt
ory/Business/home
 I'd be interested to know who told Stuart about the unambiguous "legalese"
parsing.

Now, I would not write a sentence like the one above but faced with it, I
would first notice something fishy about the two "or"s, and then more
technically I would proceed as follows.

Let's look at the context
"this policy shall exclude absolutely all liability that is caused by or
arises from... [A]dvice on methods, practices or procedures or opinions on
financial statements, whether such advice or opinion is in writing or not"

The last clause implies that we are talking about advice and opinions. OK,
what sort of advice and opinions? The "from" phrase tells us:
. The advice is advice on methods, practices or procedures.
. The opinions are opinions on financial statements.
So it would appear that those are the two things that the policy excludes
liability for.

The drafters have got muddled with "or" vs "and", they have incorrect
capitalisation and they quaintly do the excluding in the future tense, when
they ought to be doing it now, during the currency of the contract. But it's
pretty clear to me how I would parse the sentence in question. Still, it's a
good thing that this got removed from the contract.

Digressing, we could look closer and observe that there is (or shall be) no
liability for _advice_ on methods, practices or procedures. But what about
liability for the methods, practices or procedures themselves?
It is by no means unknown to find errors such as those discussed here in
documents from lawyers. I have from time to time found numerous errors in
such things as superannuation documents, trust deeds and strata by-laws. The
text is just copied forward from one document to the next until someone
finds a problem. A lawyer told me so.


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