Statutory construction and the Civil Procedure Rules

In recent weeks, I have had a number of enquiries from frustrated costs lawyers, as to what certain provisions within part 45 actually mean. They are frustrated, because the rules do not appear to cover or explain with certainty, what costs are recoverable in certain scenarios, or because the rules are ambiguous. Such frustrations are not new.

The Civil Procedure Rules are delegated legislation made by the Civil Procedure Rules Committee and given force of law by statutory instrument. But they are not drafted by Parliamentary counsel, trained for many years in the discipline of statutory drafting.

Instead, like all products of a committee they represent a compromise between the views of those who gamely “have a go” at framing general rules to fit particular cases.

Often the results are unhappy: and an interesting study could take place into the comparative costs of employing parliamentary counsel to produce a more skilled and certain set of provisions, and the wasted costs thrown away in satellite litigation over the years, seeking to achieve the same end.

However there is no sign that the flames of the “bonfire of the quangos” will be engulfing the Rules Committee any time soon, and so I set out some thoughts on how the rules (any rules) are to be interpreted or construed.

The starting point to note is that delegated legislation is to be construed in the same way as primary legislation. This proposition leads us then to consider what are the appropriate ways to consider primary legislation.

Of all the canons of construction, the most important is that the courts should give effect to the purpose behind the legislation. Legislation is thus to be given a purposive construction which considers that the statute as a whole and read in the context of the situation which led to its enactment.

Purposive interpretation as a phrase must be considered in context: it certainly does not mean that the court is free to consider in a vacuum what Parliament intended, or to carry out a far ranging review to hypothesise what Parliament meant and give effect to it’s own view.

Instead, a purposive construction is one either following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose or applying a strained meaning where the literal meaning is not in accordance with the legislative purpose.

Purposive construction is therefore not a principle which conflicts with the literal wording of a statute, rather the courts take the view that the literal meaning must be taken to reflect the purpose that Parliament intended a set of provisions to have. Parliament uses the literal meaning to explain its purpose, if you like.

Statutory interpretation thus requires the court to identify the meaning borne by the words in question in the particular context. The phrase “intention of Parliament” is shorthand for the intention the court reasonably imputes to Parliament in respect of the language used.

Prima facie the meaning of an enactment which was intended by the legislator is taken to be that which corresponds to its literal meaning. This directs the court to  to consider the natural and ordinary meaning of the word or phrase in question, that is its proper and most known signification. If there is more than one ordinary meaning, the most common and well established is preferred (other things being equal).

This in turn poses the interesting question “natural and ordinary” to whom? A set of words may mean one thing to an educated Guardian-reading academic, quite another to a semi-literate manual labourer, and something different again depending on which region of the United Kingdom they come from.

Conversely, a strained construction is applied, where it is apparent that something has gone wrong in the drafting. This is where the court plays Humpty Dumpty, in Wonderland, taking the view that words mean what the court says they mean, as a nice knock down point.

A “strained” construction will be justified when there is a repugnance between the words of the enactment and some other enactment, or the consequences of a literal construction are so undesirable that Parliament cannot have intended them or there is an error in the text which plainly falsifies Parliament’s intention or the passage of time since the enactment was originally drafted.

Technical terms of law or expertise are to be given their technical meaning unless the contrary intention appears. This in turn poses the question of what is a technical term of law or expertise, but usually the context will again provide a steer. The Civil Procedure Rules are littered with technical terms of law, which are so well known to lawyers that they require no deeper definition of their meaning.

These days, there is usually a plethora of consultative material, or ministerial statements, which precede significant developments, including in relation to the Civil Procedure Rules, as recent reforms to part 45 demonstrate.

But it is far too simplistic, to simply point to this material and suggest that it fills in the gaps in obscure provisions. It is for the courts to interpret legislation not the executive and even precisely framed official statements are of limited assistance at best in interpreting legislation.

The court may under proper safeguards have regard to the enacting history of Act as an aid to its construction but must bear in mind that the creation of statute law is subject to a continuous process of development. Measures can go through multiple drafts.

Whilst Explanatory Notes are admissible as an aid to construction private notes are not as it is fundamental that all materials relevant to the proper interpretation of an instrument should be available to any person who wishes to inform himself about the meaning of the law.

Finally, the courts take as a working assumption, the view that the drafter of legislation is assumed to be competent with a sufficient knowledge of the law, which as a legal fiction is probably a necessary assumption, even if honoured as much in the breach as the observance.


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