In Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd, Securicor were contracted to provide security for two fishing boats, which happened to sink in Aberdeen Harbour. A clause was written in Securicors’ contract limiting liability for ‘failure in the provision of services’ to £1000. The House of Lords held that the clause applied even though Securicor failed to provide any security on that occasion.
The GOLDEN RULE is basically an updated version of the literal rule the rule looks at the literal meaning of the word the court must then avoid an interpretation, which would then lead to an unfair result. It does not allow much more flexibility than the literal rule and there are two views on how far the golden rule should be used. One is that you must not attach a meaning to a provision, which cannot be justified by the legislation and is not reasonable. If the wording of the provision is capable of one meaning then you can choose from those meanings but go no further. The second view can be applied wider and means that if the meaning of the word is clear then that must be followed unless this would result in an unfair result. Then the golden rule can be applied wider and the meaning can be modified to make it and fair situation and to avoid and unfair situation. A good clear example would be In the case of Sigsworth. This was a case of murder and inheritance. Under s.46 of the Administration of Estates Act 1925, a person, could not inherit the estate of the decease if they had murdered that other person, otherwise the murderer would benefit from his/her crime.
The MISCHIEF RULE is the oldest rule and gives the judge more flexibility and discretion in court that the other two rules. It is sometimes referred to as the rule in Heydon’s case ((1584). It can be by the court used to interpret a statue but must consider the common law before the act was introduced. A look at the dictionary would reveal that the word ‘mischief’ has numerous meanings, such as harm or wrong. The judges use this rule to decide what ‘mischief’, or loophole the statute was intended to correct or close. In so doing the judges goes beyond the words of the statute to ascertain what ‘mischief’ or harm the statute was intended to remedy. The court should then interpret the act in such a way that the gap is covered. This is clearly a quite different approach to the literal rule. The mischief rule was used in Smith v Hughes to interpret the Streets Offences Act 1959, which said, “It shall be an offence for a common prostitute to loiter or solicit in the street or public place for the purpose of prostitution”. In this case the woman had not been ‘in the street’ but in a ground floor window of her house and where attracting men by tapping on the window. The defence argument where that they where not on the street or in a public place and therefore not guilty under the act. The mischief rule was use and found then guilty by filling in the loophole of the act.
There is also the PURPOSIVE APROACH, which goes beyond the mischief rule and identify the gap in the act and then the judge decides what parliament meant to achieve when passing this legislation. This approach looks at the act outside of the wording and the rule is used in statutes involving EU law.
In answer to part B of this question if we start by looking at the Smith v Hughes cases. If we took the literal rule the words ‘in the street or a public place’ would have been taken literally and therefore the defence would win there case because they where on private land in a house. If we look at this case in the eyes of the golden rule, it would still be a not guilty result as they still take the word literally. The mischief rule gave them more flexibility to look at what the act was aiming to achieve therefore was successful.
The three rules give very different outcome because the literal rule means you can only take the meaning of the word and apply it to the case in hand. Where the golden rule allows a little more flexibility as it can avoid an unfair result. The mischief rule is the oldest and most effective rule because it allows discretion and lots of flexibility to achieve the right results and fill in any gaps in the law.
Still because words can have different meanings and the meaning of the word can change depending on its context, it is important to have established and understood rules of interpretation. Therefore, need for interpretation is obvious. In many instances, the wording in a statue can be ambiguous, obscure and meaningless. In order for Judges to determine the meaning of legislation, they approach it through the rules of construction.