Chapter-11 Heydon's Rule Part-3

This approach finds its historical roots way back prior to the formalist period, just as the more flexible conventions of precedent may be seen as being as much a return to the past as they are a modern phenomena. The classic statement of the Mischief Rule is that given by the Barons of the Court of Exchequer in Heydon's Case[1]: It was there laid down:

"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:-

lst. 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.

The mischief approach is a vast improvement over the literal and golden approach in that it acknowledges that we give meaning to words by supplying the context and that rules in statutory form are more than ends in themselves . Rules are a means to an end. However, the use of the purposive approach has difficulties associated with it. Heydon’s rule is also called as the Mischief rule and is generally not applied with full focus. There are contextual and purposive constructions as well .

The explanation of this is that the rule is available at two stages. The first task of a court of construction is to put itself in the shoes of the draftsman? to consider what knowledge he had and, importantly, what statutory objective he had? if only as a guide to the linguistic register. Here is the first consideration of the 'mischief.' Being thus placed in the shoes of the draftsman, the court proceeds to ascertain the meaning of the statutory language. In this task 'the first and most elementary rule of construction' is to consider the plain and primary meaning, in their appropriate register, of the words used. If there is no such plain meaning (i.e., if there is an ambiguity), a number of secondary canons are available to resolve it. Of these one of the most important is the rule in Heydon's Case. Here, then, may be a second consideration of the 'mischief.'[2]

Lord Goddard C.J. stated at p. 384:—

'We are not concerned with that because, although in construing an Act of Parliament the Court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there, and, if a statute has created a specific offence, it is not for this court to find other offences which do not appear in the statute[3].'"

---

[1] Heydon's Case (l584) 3 Co. Rep. 7a; 76 E.R. 637:

[2]See: Secretary of State for the Environment, Transport and the Regions and Another, Ex Parte Spath Holme Limited, R v. [2000] UKHL 61; [2001] 1 All ER 195; [2001] 2 WLR 15 (7th December, 2000)

[3] In R. v. Wimbledon Justices, ex parte Derwent [1953] 1 Q.B. 380,