Chapter Three - Lists

Question

Chapter 3: (D) MISCELLANEOUS

Answer

(18) Using at least two cases, assess the advantages and disadvantages of the literal rule.

The literal rule is used when the wording of an Act is clear and it is perceived, mainly by formal-style judges, that adopting the plain meaning of the word will be the most reliable way of giving effect to Parliamentary intent. For example, in Cutter v Eagle Star Insurance Co Ltd (1998) the question for the court was whether a ‘car-park’ could be perceived as a ‘road’: clearly, a literal approach holds that a ‘car-park’ is not the same as a ‘road’ and this is what was held.

However, the use of this rule may lead to what seem to be harsh or unfair results. For example, in London & North-Eastern Railway v Berriman (1946), a widow was claiming against a railway company for the death of her husband. The widow’s case hinged on whether the husband was ‘relaying or repairing’ the railway tracks, though the court held, on a strict interpretation, that he was merely ‘maintaining’ the tracks. This interpretation denied the widow a claim and has been criticised.

An advantage of the literal rule is the way in which it respects the constitutional balance between legislature and judiciary. Therefore, statutes are interpreted just as they were enacted. However, it has significant disadvantages, including the fact that it can lead to unfair or at times absurd results; it means that judges merely reach for a dictionary rather than thinking about the purpose or intent of the Act; and that it does not allow for creative interpretation to keep up with changing times.

(19) Provide and explain two cases to illustrate that statutes can be interpreted to keep up with changing times.

Perhaps the classic example here is Corkery v Carpenter (1951) in which an old statute – the Licensing Act 1872 – had not kept up to date with new modes of transport. Hence, when someone was found drunk in charge of a bicycle, the only option under the 1872 Act was to charge him with being drunk in charge of a ‘carriage’. Could the 1872 Act be interpreted in such a way as to keep up with changing times? Yes. The court adopted the mischief approach to interpretation in order to bring bicycles within the contemplation of the Act. Clearly, a literal approach would simply have held that a ‘bicycle is not a ‘carriage’.

The mischief approach was also used in the Royal College of Nursing of the UK v Department of Health and Social Security (1981) case in order to recognise that new methods of inducing, and supervising, abortions should be reflected in interpretation of the Abortion Act 1967.

(20) Define, and illustrate with at least two cases, the purposive approach to statutory interpretation.

The purposive approach is used to interpret Acts of Parliament according to their purpose or intent. It looks at the context of the Act and goes beyond the task of merely searching for the ‘mischief’ to which the Act is directed.

Two cases that illustrate this approach are:

(1) Coltman v Bibby Tankers (1988). Here the word ‘equipment’ in the Employers’ Liability (Defective Equipment) Act 1969 was interpreted so as to include a ship, in order to achieve the purpose of that Act in making employers liable for injuries/deaths of employees.

(2) Fitzpatrick v Sterling Housing Association Ltd (1999). Here the Rent Act 1977 was interpreted purposively so as to give tenancy rights to a homosexual partner equivalent to those enjoyed by heterosexual partners.

(21) Give reasons to suggest why there has been a drift from the literal to purposive approaches over the last thirty years.

This drift was acknowledged by Lord Diplock in Carter v Bradbeer (1975). It was influenced particularly by the UK’s entry into the European Community in 1973, with the implications of the purposive approach to interpretation considered by Lord Denning in Bulmer v Bollinger SA (1974). The drift has been strengthened further by the need for purposive interpretation in dealing with human rights cases associated with the Human Rights Act 1998.

The drift is a consequence of European influences on English law that stretch from drafting of statutes to a broader approach to interpreting Parliamentary language. This has also been assisted by a relaxation of the ‘exclusionary rule’ to interpretation that has allowed Hansard to be admitted in order to find the purpose of legislation.

Other changes prompted by membership of the European Community (now Union), including a weakening of parliamentary sovereignty in practice, have meant that judges are perhaps less reticent to act creatively. It has also been recognised that judicial creativity does at least enable the judges to keep up with changing times and avoids the harsh results sometimes associated with the literal approach.