The English Legal System - Basic Principles (Chapter 6) Flashcards
What is the ordinary function of the courts?
To interpret statutory provisions, i.e. to give meaning to these provisions and apply them.
What are the three canons (or rules) of statutory interpretation?
The literal rule
The golden rule
The “mischief” rule
What is the literal rule?
As the name says, courts are to interpret the wording of acts literally, even if that might lead to a “manifest absurdity”
in common law, what is an invitation to treat?
It is much clearer in the US, where it is called invitation to bargain.
It is an expression of willingness to negotiate.
What case is cited when discussing the literal rule?
Fisher v Bell [1961] 1 QB 394
Explain Fisher v Bell [1961] 1 QB 394
It is a case of a shopkeeper who was charged with selling a forbidden weapon under the Restriction of Offensive Weapons Act 1959.
The shopkeeper had put the knives on display with a price tag.
According to contract law, displaying an item with a price tag is an invitation to treat, not an offer for sale. The statue did not define the term “sale” beyond its ordinary contractual meaning, the court felt compelled to apply the ordinary law of contract.
What is the important statement for the golden rule?
The grammatical and ordinary sense of the words may be interpreted, so as to avoid the absurdity and inconsistency.
What case is cited when discussing the literal rule?
Re Sigsworth [1935] Ch 89
Explain Re Sigsworth [1935] Ch 89
The court ruled that a son who had murdered his mother could not inherit her estate under the Administration of Estates Act 1925, even though, on a literal interpretation of the word issue, the son, as the only surviving relative, was clearly entitled
What is the important statement for the mischief rule?
The rule does not only concentrate on the words of the statue, but on the purpose for which Parliament enacted the statue.
What case is cited when discussing the mischief rule?
Heydon’s Case (1584) 3 Co Rep 7
Explain Heydon’s Case (1584) 3 Co Rep 7
The court specified that four matters have to be considered in considering what mischief the statute was intended to remedy:
1) What the common law was before the statute was passed
2) What the mischief and defect was which was not remedied by the common law
3) What remedy is given by the present statute
4) The true reason for the remedy
In which case was the mischief rule famously applied?
Smiths v Hughes [1960] 1 WLR 830, 2 All ER 859
Explain Smiths v Hughes [1960] 1 WLR 830, 2 All ER 859
The defendants claimed that a balcony was not on the street, and so their solicitation for sexual favors could not constitute a breach of the Street Offences Act 1959.
The court, applying the mischief rule, held that the Street Offences Act’s purpose was to prevent harassment, and that this was still occurring as a result of the defendants’ acts.
Besides the 3 rules, there is the purposive approach. How does it differ from the mischief rule?
Under the mischief rule, judges consider what the law was before the particular legislation was introduced, with the aim of ascertaining what gap or mischief the legislation was supposed to address. Then the judge will interpret the word or clause in the legislation in such a manner that the gap is filled.
The purposive approach involves judges trying to decide what they believe Parliament intended to achieve by the legislation ON TOP OF simply identifying and remedying the gaps within the previous law.
The purposive approach also is linked to a famous case. Which?
Pepper v Hart [1993] 1 All ER 42 (HL)
Explain Pepper v Hart [1993] 1 All ER 42 (HL)
Lord Griffiths stated that courts have departed from adopting the literal meaning of the language and instead have adopted a purposive approach which seems to give effect to the true purpose legislation. Courts are also prepared to look at much extraneous material that bears on the background against which the legislation was enacted (think about the Botschaften in Switzerland).
Which impact did the adoption of EU law have on interpretation of common law?
The purposive approach was used, even if this involved distorting the ordinary meaning from the words used.
In what way does civil law differ from common law?
Civil law tradition prefers simplicity of drafting and a high degree of abstraction (which makes it full of gaps and lacunae)
The common law approached adopted in the UK is detailed and exhaustive
Famous case where purposive approached was followed
Lister v Forth Dry Dock and Engineering Co Ltd [1989] 1 All ER 1134
Explain Lister v Forth Dry Dock and Engineering Co Ltd [1989] 1 All ER 1134
It was a case in which an undertaking (a part of a business) was transferred from one organization to another. The seller laid off the workers just before the transfer.
The House of Lords (now Supreme Court of UK) in interpreting the protective clauses of the Transfer of Undertakings (Protection of Employment) Regulations 2006 followed the purposive approach. The legislation stated that only those “employees employed at the time of the transfers” would benefit from the legal protection. The court extended the protection by interpreting that this also includes employees who would (still) have been employed at the time of the transfers if they had not been unfairly dismissed.
What is considered garden leave in the UK?
Garden leave (also known as gardening leave) is the practice whereby an employee leaving a job – having resigned or otherwise had their employment terminated – is instructed to stay away from work during the notice period, while still remaining on the payroll.
There is legislation called Transfer of Undertakings (Protection of Employment) Regulations 2006. What does undertakings mean?
Which important case does this regulation refer to?
It means business. The regulations exist to protect employers during a transfer from one organization to another.
Lister v Forth Dry Dock and Engineering Co Ltd [1989] 1 All ER 1134.
Besides literal rule, golden rule, and mischief rule, as well as purposive apprach, there are two interpretation rules with Latin names. What are those?
Expressio Unius Est Exclusio Alterius
Noscitur A Sociis
