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Published: Fri, 02 Feb 2018
Interpret a statute due to disputes
Courts may be called upon to interpret a statute due to disputes over the meaning of a word or phrase contained within a statute. These disputes may arise through a variety of reasons. It has long been held that words are an imperfect means of communication. Omissions may have occurred at the drafting stage, word or phraseology ambiguity, etymological change through time, oversight on specific points, or a failure to adapt legislation to new developments. This may result in the judiciary providing a role in statutory interpretation. Statutory interpretation in its broadest sense is the process of determining the true meaning of a written document. The Interpretation Act 1978 provides limited scope to assist judges with statutory interpretation in that it only provides standard definitions to common provisions such as a rebuttable presumption that terminology in the masculine gender also include the feminine, and that the singular includes plural.
There are three main rules to interpret a statute; the literal, golden and mischief rule and also the integrated approach, known as the purposive approach. Each rule will be looked at individually with case examples.
The literal rule uses the plain ordinary meaning of words. In Fisher v Bell  3 All ER 731 the defendant, a shopkeeper, displayed in his window a flick knife with a price ticket, and was prosecuted for “offering for sale” an offensive weapon contrary to the Restriction of Offensive Weapons Act 1959. The High Court said the phrase “offer for sale” was to be taken literally, in accordance with its meaning in contract law, and that the shopkeeper’s display of the weapon was no more than an invitation to treat. It was presumed that Parliamentary draftsmen know technical legal language thus common law expression was not altered.
The golden rule is an extension of the literal rule and has both a narrow and wider application and is used where the literal rule creates an absurdity. This is evident in the narrow sense in Adler v George  All ER 628. Adler gained access to a RAF station and obstructed a member of Her Majesty’s forces engaged in security duties ‘in the vicinity of a prohibited place’ He argued that, as he was actually in the prohibited place, he could not be said to be “in the vicinity” of the prohibited place. The literal interpretation of the Official Secrets Act 1920 would allow protesters to demonstrate within military bases but not outside them, creating an absurdity. This was clearly not the intention of this Act. Adler was found guilty of the offence because “in the vicinity of” should be interpreted to mean on or near the prohibited place. In its wider sense, the court may modify the reading of words in order to avoid a repugnant situation as in Re Sigsworth  Ch 89. Section 46 of the Administration of Estates Act 1925 stated that where a person dies intestate leaving children but no spouse, the estate passes to the children. The defendant had murdered his mother, who did not have a will, and he stood to inherit her estate as next of kin by being her “issue”. The court applied the golden rule and held that “issue” would not be entitled to inherit where they had killed the deceased.
The mischief rule allows judges slightly more discretion. It looks at the gap or the mischief the statute was intended to cover. In the case of Corkery v Carpenter  1 KB 102, the Licensing Act 1872 stipulated that it was an offence to be drunk in charge of a carriage. Whilst no direct reference was made to bicycles, the court ruled that Corkery was guilty as the term “carriage” could also be applied to a bicycle.
As per Lord Dennings judgement in Notham v London Borough of Barnet  1 WLR 220, the purposive approach is one that will “promote the general legislative purpose underlying the provisions”. The purposive approach is used by the majority of European countries when interpreting their own legislation and also by the European Court of Justice in interpreting European Union law and is becoming increasingly influential. In Jones v Tower Boot Co Ltd (1997) IRLR 168 CA, the complainant suffered racial abuse at work, which he claimed amounted to racial discrimination for which the employers were liable under s32 of the Race Relations Act 1976. The Court of Appeal applied the purposive approach and held that the acts of discrimination were committed “in the course of employment” is to be given an everyday, rather than a tort law, meaning. Any other interpretation ran counter to the whole legislative scheme and underlying policy of s32.
In addition, the courts may also apply rules of language, intrinsic and extrinsic aids and presumptions to aid statutory interpretation. There are three main rules of language. These are ejusdem generis meaning of the same kind, Noscitur a sociis meaning a word is known by the company it keeps, and expressio unius est exclusio alterius, where the express mention of one thing excludes others. Intrinsic aids are taken from the Act itself and may include the long or short title of the Act, the preamble, headings, side notes and contextual punctuation. Extrinsic aids consists of previous case law, international conventions, regulations and directives, dictionaries, official reports and most recently in Pepper (Inspector of Taxes) v Hart  1 All ER 583, Hansard. Presumptions within law are numerous and may range from presumption against alterations of the common law to a presumption against ousting the jurisdiction of the courts, to name but a few.
In summary, the view that is expressed by James Holland and Julian Webb in Learning Legal Rules (Seventh edition) appears to be simplistic and literal in its context. The rules of statutory interpretation are not rules in the strict sense, as each one may point to different solution to the same problem. There is no hierarchy of rules to be applied and neither is any court bound to follow a particular rule. They are purely guidelines for the judiciary to solve problems with statutory interpretation.
Acts of Parliament:
Interpretation Act 1978
Restriction of Offensive Weapons Act 1959
Official Secrets Act 1920
Licensing Act 1872
Administration of Estates Act 1925
Fisher v Bell  3 All ER 731
Adler v George  All ER 628
Corkery v Carpenter  1 KB 102
Re Sigsworth  Ch 89
Notham v London Borough of Barnet  1 WLR 220
Jones v Tower Boot Co Ltd (1997) IRLR 168 CA
Pepper (Inspector of Taxes) v Hart  1 All ER 583
W200Understanding Law, Manual 1 (2011), Third Edition, The College of Law, SUP021173
The English Legal System, Eleventh Edition 2010-2011, Gary Slapper, David Kelly, ISBN 978-0-415-56695-7
Learning Legal Rules (Seventh edition), James Holland and Julian Webb, ISBN 978-0-19-955774-5
Q2: The aim of this essay is to look at the basic distinctions between common law and civil law and also common law and equity. This essay will firstly look at the historical context of civil and common law and then contrast distinctions between the two. Secondly this essay will examine the historical context of equity and the development of these laws and it is a further aim to disambiguate some confusion generated by the term “common law”.
Between the 8th and 11th centuries Britain operated an informal law system based on oral customary rules which varied according to the region. In the south of the country, the law of the Jutes would be different to that operated in the midlands under Mercian law. A disparity was displayed between communities as different “public assemblies” were convened with different customs. In 1154, Henry II introduced a unified court system moving the law system to a national level by creating travelling judges called circuit judges and creating a law that was “common to all”. The transition from local level to national justice was gradual. As circuit judges discussed cases back in Westminster, they based their future decisions on the best customary rulings. As the common law developed, the doctrine of stare decisis, letting previous decisions stand, emerged. Over time, to create certainty and consistency, judicial precedent became binding and common law became synonymous with judge made law.
Civil law refers to those other jurisdictions which have adopted the European continental system of law. The civil law system was mainly derived from Roman law, in particular the Corpus Juris from Emperor Justinian I in 529 AD. Further development of civil law occurred influenced by Germanic, ecclesiastical, feudal, and local practices. This codification of laws remained largely forgotten until reprinted in 1583 by Dionysius Gothofredus under the name of “Corpus Juris Civilis” and was further expanded upon by the Napoleonic code introducing civil law to European countries formed during and after the Napoleonic wars.
The distinctive feature of common law is that it expresses the law of the courts through judicial decisions. This may also be described as being case centred or judge centred. The law developed on a case by case basis. Judges do have the flexibility to deviate from previous judgments by judicial creativity by distinguishing a particular situation, but otherwise, they have to follow a system of binding precedent. In contrast, civil law is based upon provisions of codes and statutes, from which solutions to particular cases are to be derived. Common law courts use the adversarial system, in which two sides present their cases to a neutral judge. In contrast, in civil law, the inquisitorial system is used, where an examining magistrate serves two roles by developing the evidence and arguments during the investigation phase whilst simultaneously representing the interests of the state in a trial.
As the common law progressed, there was a reluctance to deal with matters that could not be processed by common law. The reluctance to deal with these cases caused injustice and ultimately dissatisfaction with the judicial system. The perception was that common law courts were slow, over technical and too expensive. The only available remedy under the common law system was damages in the form of monetary compensation; however, this sanction did not always serve the best interests of justice. The Lord Chancellor, the head of the Chancery, which by this time had become an important department of state, was the head of the King’s Council and, from early times, petitions seeking the King’s ‘extraordinary justice’ were referred to him. As referrals became more frequent, in 1474 the Chancellor made a decree upon his own authority forming the characteristics of a court. In giving remedy in these cases, new law was being created with its own rules and procedures rather than natural justice. This new law became known as ‘equity’, in contrast to the ‘common law’ dispensed in the common law courts.
Equity developed its own doctrine which included such principles as equity looks on that as done which ought to be done, he who comes to equity must come with clean hands, delay defeats equity and equity will not suffer a wrong to be without a remedy.
Equity recognised rights that could not be dealt with under common law. Equity of redemption was introduced and must be exercised by a mortgagor within a certain time after having defaulted on an obligation. This prevented unscrupulous lenders from absenting themselves on the day payment was due, in order to profit through foreclosure and still exists today as the equity of redemption. Equity, unlike common law, recognised beneficiaries of trusts.
The inevitable clash between equity and common law occurred with the Earl of Oxford’s Case (1615) 1 Ch Rep 1, where conflicting judgments between the common law courts and the Court of the Chancery were referred to the King for a decision. The King advised that where there was a conflict, equity should prevail. The Judicature Acts 1873-1875 provided that there would no longer be separate courts administering common law and equity, although the two branches of law are separate as illustrated by the Queen’s Bench Division for common law and the Chancery Division for equity. Equity, to this day, still prevails under s. 49 of the Senior Courts Act 1981.
Equity offers remedies not available through the common law. Injunctions may compel a person to perform an action or to refrain from an action. Specific performance may compel someone to perform their obligations under a contract or trust. Rectification may offer a remedy whereby a court orders a change in a written document to reflect what it ought to have said in the first place and rescission may unmake a contract between parties.
The term common law may be confused if it not understood or not used in the correct context. Common law may be used to describe a legal system which has developed from the English legal system, such as law used by America or Australia. Another connotation is that ccommon law may be used to distinguish a legal system from a civil law system. Further to this, common law may be used to mean case law, where law has been developed using a system of precedent. Common law may be used to distinguish it from statutory law. Murder is a common law offence but the defence of diminished responsibility and provocation are statutory under sections 2 and 3 of the Homicide Act 1957. Common law could refer to a system which is common to the whole of the country.
Acts of Parliament:
Judicature Acts 1873-1875
Senior Courts Act 1981
Homicide Act 1957
Earl of Oxford’s Case (1615) 1 Ch Rep 1
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