“There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case[1]”. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all[2].
Harrison v. Wells[3] “ Shorn of irrelevancies, the case was this: A widow in 1949 let business premises to a tenant on the usual repairing covenants. It was for a term of seven years: but was continued under the Landlord and Tenant Act, 1954. On 24th June, 1961 the tenant surrendered the premises to the widow. She died six months later. Her executor sued the tenant for damages for breach of the covenant to yield up in repair. The tenant had no defence save this: He proved that the widow was not the freeholder. The legal title was vested in trustees (of which she was one). Her husband had owned the property and had left it to the trustees (including his widow) on trust to pay the income to his widow for her life. She had managed the property and let it on lease to the tenant and had received the rent. When the tenant surrendered the tenancy, the premises were much out of repair. So the tenant was clearly liable in damages unless he could find some technical defence. Ho found it. This Court held that, as the widow was not the freeholder, she had no title herself to grant the lease: that lease was void: and as the covenant "cannot stand naked by itself without any lease to support it", the covenant was no good. The Court held that the doctrine that a "tenant cannot dispute his landlord's title" only applied whilst the tenant was in possession; and that it did not apply when the tenant had gone out of possession. The Court recognised that "the defendant has not a shred of merit": but, nevertheless, decided that he was not liable. They added, too, that he succeeded "only on a technicality," but he still succeeded. I must say that I am aghast that in these days our Court of Appeal should reach such am unjust result. I know that in days past the Courts used to give effect to technicalities of the worst description: but I had hoped we had outgrown all that. As it is, I am quite satisfied that the Court in Harrison v. Wells was wrong - and not only wrong but so wrong that we are now in a position ourselves to over-rule Harrison v. Wells. The truth is that the Court there misunderstood a case over 100 years old called Cuthbertson v. Irving, decided in 1859. The Court had only the report in the Law Journal. They ought to have looked at the report in 4 Hurlstone & Norman, which is much better, affirmed in the Exchequer Chamber in 6 Hurlstone & Norman 135……...[4]”
‘The legislation must not only have a legitimate policy objective. It must also satisfy a 'proportionality' test. The court must decide whether the means employed by the statute to achieve the policy objective is appropriate and not disproportionate in its adverse effect. This involves a 'value judgment' by the court, made by reference to the circumstances prevailing when the issue has to be decided. It is the current effect and impact of the legislation which matter, not the position when the legislation was enacted or came into force. (I interpose that in the present case no suggestion was made that there has been any relevant change of circumstances since the Consumer Credit Act was enacted.) When a court makes this value judgment the facts will often speak for themselves. But sometimes the court may need additional background information tending to show, for instance, the likely practical impact of the statutory measure and why the course adopted by the legislature is or is not appropriate. Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the 'proportionality' of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the 'mischief') at which the legislation is aimed. This may throw light on the rationale underlying the legislation.This additional background material may be found in published documents, such as a government white paper. If relevant information is provided by a minister or, indeed, any other member of either House in the course of a debate on a Bill, the courts must also be able to take this into account. The courts, similarly, must be able to have regard to information contained in explanatory notes prepared by the relevant government department and published with a Bill. The courts would be failing in the due discharge of the new role assigned to them by Parliament if they were to exclude from consideration relevant background information whose only source was a ministerial statement in Parliament or an explanatory note prepared by his department while the Bill was proceeding through Parliament. By having regard to such material the court would not be 'questioning' proceedings in Parliament or intruding improperly into the legislative process or ascribing to Parliament the views expressed by a minister. The court would merely be placing itself in a better position to understand the legislation.[5]”
[1]British Railways Board v Herrington [1972] UKHL 1 (16 February 1972)
URL: http://www.bailii.org/uk/cases/UKHL/1972/1.html
Cite as: [1972] 2 WLR 537, [1972] 1 All ER 749, [1972] AC 877, [1972] UKHL 1
[2] Quinn v Leathem [1901] UKHL 2 (05 August 1901)
URL: http://www.bailii.org/uk/cases/UKHL/1901/2.html
Cite as: [1901] UKHL 2, [1901] AC 495 per EARL OF HALSBURY L.C.
[3] Harrison v. Wells (1967) 1 Queen's Bench 262
[4]Industrial Properties (Barton Hill) Ltd v AEI Ltd [1977] EWCA Civ 1 (02 February 1977)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1977/1.html
Cite as: 34 P&CR 329, [1977] EWCA Civ 1, [1977] QB 580, [1977] EWCA Civ 01, [1977] 2 WLR 726, [1977] 2 All ER 293, 242 EG 955
[5] Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)per LORD NICHOLLS OF BIRKENHEAD
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