The literal rule is the primary rule which takes precedence
over the others.
Words and phrases should be construed by the courts in their
ordinary sense, and the ordinary rules of grammar and punctuation
should be applied.
If, applying this rule, a clear meaning appears, then this
must be applied, and the courts will not inquire whether what
the statute says represents the intention of the legislature:
‘The intention of Parliament is not to be judged by
what is in its mind, but by the expression of that mind in
the statute itself’.
The literal rule is strongly criticised by many lawyers. It
has been said to be ‘….a rule against using intelligence
in understanding language. Anyone who in ordinary life interpreted
words literally, being indifferent to what the speaker or
writer meant, would be regarded as a pedant, a mischief-maker
or an idiot’. Such criticism, it is submitted, is misguided.
For example, the Hotel Proprietors Act 1956 provides that
in certain circumstances an hotel proprietor is liable for
loss of or damage to guests’ property, but that this
liability does not usually extend to guests’ motor vehicles
or property left ‘therein’. The question arises
– is the hotel proprietor liable for property left on,
rather than in, a vehicle, for example, on a roof rack. On
a literal interpretation, the hotel proprietor is liable,
because if Parliament had intended to exclude property left
on a vehicle, the Act would have said ‘therein or thereon’.
The ‘commonsense’ school would say that it is
ridiculous to make a distinction between property left in
or on a vehicle. That may be so in the admittedly trivial
example given, but if this line of argument is accepted, it
means that the courts would have power to rewrite Acts of
Parliament, which many people would consider to be highly
dangerous, particularly where it takes the form of assuming
that Parliament ‘intended’ something, when in
truth it is more than likely that Parliament never gave that
matter a moments’ thought.
It is better that the courts interpret statutes strictly,
and if this leads to unsatisfactory or inequitable results,
then Parliament should pass amending legislation to indicate
clearly what its intention was.
The full force of the literal rule was demonstrated in the
case of Whitely v, Chappell (1869). The defendant had voted
in the name of a person who had died, but was found not guilty
of the offence of personating ‘any person entitled to
vote’: a dead person is not entitled to vote.
The literal rule involves two subsidiary rules. The first
is the noscitur a sociis rule, a high-sounding rule which
simply means that the meaning of a word must be determined
by its context. For example, the word ‘ring’ has
no specific meaning in isolation, but its meaning becomes
clear in a context such as ‘ring the bell’, or
‘he bought her an engagement ring’.
The second subsidiary rule is the ejusdem generis rule,
which is that the meaning of any general term is dependent
on any specific terms which precede it. A good example is
the Betting Act 1853, which prohibited the keeping of a ‘house,
office, room or other place’ for the purposes of betting.
How wide is the term ‘or other place’ in this
context? The term is so vague that it is impossible to say,
but in Powell v. Kempton Park Racecourse Co. (1899) it was
held that it did not include Tattersall’s ring at a
racecourse; the specific places mentioned in the Act –
house, office, room – are all indoors, whereas Tattersall’s
ring is not.
See also:
Interpretation
of the Law: 'Golden Rule'
Interpretation
of the Law: 'Mischief Rule'
Statutory
Interpretation
Terminology:
Civil and Magistrates Courts
Terminology:
County Court
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