Words to avoid when drafting in English: forthwith

The natural meaning of forthwith is immediately, straightaway, instantly, directly, at once, without delay, right now, although it tends to be used in more formal settings. We find it being used in legislation;

(8) The local planning authority may withdraw an enforcement notice … at any time before it takes effect; and, if they do so, they shall forthwith give notice of the withdrawal to every person who was served with the notice.

section 15 of the Town and Country Planning Act 1968.

And in formal documents, such as this notice requiring a nuisance to cease

Westminster City Council … hereby requires you as the person responsible for the noise nuisance … forthwith from the service of this notice to abate the same.

And in orders of the court:

10.6 Where a party ceases to hold any shares in the Company then he or she shall forthwith resign as a director (and if he or she is an employee of the Company also forthwith resign as an employee).

In each of these cases, it seems both possible and reasonable to take action immediately: it would take very little time to type up a notice, turn the volume down in a club, or cease acting as a director.

By contrast, look at this requirement in a deed from 1928:

The Purchaser will forthwith properly enclose and fence off the
said piece of land to the satisfaction of the Vendor with good and
substantial fences or walls not exceeding five feet six inches [1.65 metres] in
height of such material height and design and in such manner in all
respects as the Vendor shall approve.

How long would the process take, do you think, from the beginning of the project, to get final approval for the fence or wall and to complete its construction? Four weeks? Two months? Six months? How can forthwith mean both 'immediately' and 'four weeks' (or longer)?

Some case law helps to give an answer. It all depends on the thing that is to be done. Building a wall takes longer than giving written notice. Some delay causes no real harm, or other consequence, at all. It all depends on what is a reasonable period in all the circumstances.

“forthwith” is not a precise time, and provided that no harm is done, forthwith means any reasonable time thereafter. Hillingdon London Borough v Cutler (1968)

"forthwith" means no more than “as soon as is reasonably practicable”. In the Matter of the Seagull Manufacturing Company Limited and in the Matter of the Insolvency Act 1986 The Official Receiver v Colin John Slinn (1993)

Reading or writing?

If a word can have such an uncertain meaning, it would be foolish to use it if action must be taken within a more certain time frame.

As a practising lawyer, you will be asked by your client to advise on the meaning of the word forthwith in a contract, you will have to decide how to use that word in a contract you are drafting, and you will have to negotiate with other lawyers whether or not the word should appear in a contract.

Like "best endeavours", some words are, you could say, helpfully vague. If you are drafting a document and cannot agree with the other lawyer on what steps must be taken or when something must be done, there is no alternative but to use a general phrase. If it is at all possible, be as clear as possible. If notice can reasonably be given within seven days of signing the agreement, write seven days rather than forthwith. If it is reasonably possible to build a wall within three months of the land purchase, say that in the agreement. All parties need to be clear on what must be done and when, rather than having to guess what "forthwith" means. Litigation is costly and uncertain and can be avoided if clear language is used.