Basic Formulation
The classic statement of the mischief rule is that given by the Barons of the Court of Exchequer in Heydon's Case: [ (1584) 3 Co. Rep. 7a.]
'' And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the Common Law), four things are to be discerned and considered:
1st. What was the Common Law before the making of the Act,
2nd. What was the mischief and defect for which the Common Law did not provide
3rd. What remedy the Parliament hath resolved and appointed to cure, the disease of the commonwealth,
And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
And Coke himself later referred to the same approach in his Institutes:
Heydon's Case continued to be cited, the English courts began to describe their powers in increasingly guarded terms. Thus Lord Tenterden C.J. inBrandling v. Barrington [(1827) 6 B. & C. 467].could not-
"forbear observing that . . . there is always danger in giving effect to what is called the equity of a statute, and that it is much better and safer to rely on and abide by the plain words, although the Legislature might possibly have provided for other cases had their attention been directed to them."[ 1827) 6 B. & C. 467At p. 475]
Parallel Developments
A parallel approach to statutes is to be found in Scottish decisions. Thus in Campbell v. Grierson [(1848) 10 D. 361] the Lord Justice Clerk in dealing with an old Act of1669 referred to the ascertainment of "the real object of the enactment" as one of the rules to be applied. And in Magistrates and Town Council of Glasgow v. Commissioners of Police of Hillhead [(1885) 12 R. 864] it was said that :
"it is a settled principle that the court should so construe an Act of Parliament as to apply the statutory remedy to the evil or mischief which it is the intention of the statute to meet."The judges were, however, prepared to some extent to consider Coke's "cases out of the letter of a statute" under the so-called golden rule. This rule was attributed to Lord Wensleydale by Lord Blackburn in River Wear Commissioners v. Adamson in which he said:
"I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear." [(1877) 2 App. Cas. 743 at pp. 764-5.]
"I should like to have a good definition of what is such an absurdity that you are to disregard the plain words of an Act of Parliament. It is to be remembered that what seems absurd to one man does not seem absurd to another. . . . I think it is infinitely better, although an absurdity or an injustice or other objectionable result may be evolved as the consequence of your construction, to adhere to the words of an Act of Parliament and leave the legislature to set it right than to alter those words according to one's notion of an absurdity."
Lord Esher M.R. in R. v. The Judge of the City of London Court [[1892] 1 Q.B. 273 (C.A.] is equally forthright:
'' If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity."
'' If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the Legislature has committed an absurdity."
The following well-known passage from the speech of Lord Atkinson in Vacher & Sons Ltd. v. London Society of Compositors [I913] A.C. 107]is formally consistent with a restricted form of the golden rule, as it presupposes language which is completely unambiguous. In spirit, however, it challenges the rationale of any rule permitting the courts to correct an absurdity. Lord Atkinson said:
"If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must been forced though it should lead to absurd or mischievous results. If the language of this sub-section be not controlled by some of the other provisions of the statute, it must, since its language is plain and unambiguous, be enforced, and your Lordships' House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischievious."
Definition By Halsbury
Definition By Halsbury
At Paragraph 1474 of Volume 44(1) of Halsbury's Law (Fourth Edition) the mischief rule is described in the following terms:-
"Parliament intends that an enactment shall remedy a particular mischief, and it is therefore presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, should find a construction which applies the remedy provided by it in such a way as to suppress that mischief."
Halsbury refers back to the decision in Heydon's Case [1584] 3Co Rep 7a which held, inter alia, that statutes should be construed to "suppress the mischief and advance the remedy" and to "add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico"
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