FOTHERGILL V MONARCH AIRLINES LTD: HL 10 JUL 1980

Coram: Lord Diplock, Lord Wilberforce

Ratio: The plaintiff, on arriving at the airport found that his luggage had been lost. The
defendant denied liability saying he had not notified his claim within the requisite
period.
Held: Elementary justice requires that the rules by which the citizen is bound should be
ascertainable by reference to sources that are accessible. A court may in appropriate
cases have regard to travaux preparatoires in construing a treaty but such an aid is only
helpful if the materials clearly and indisputably point to a definite treaty intention. As to
the Convention: ‘The language of that Convention that has been adopted at the
international conference to express the common intention of the majority of the states
represented there is meant to be understood in the same sense by the courts of all
those states which ratify or accede to the Convention. Their national styles of legislative
draftsmanship will vary considerably as between one another. So will the approach of
their judiciaries to the interpretation of written laws and to the extent to which recourse
may be had to travaux preparatoires, doctrine and jurisprudence as extraneous aids to
the interpretation of the legislative text. The language of an international convention has
not been chosen by an English parliamentary draftsman. It is neither couched in the
conventional English legislative idiom nor designed to be construed exclusively by
English judges. It is addressed to a much wider and more varied judicial audience than is
an Act of Parliament that deals with purely domestic law. It should be interpreted, as
Lord Wilberforce put it in James Buchanan & Co. Ltd v Babco Forwarding & Shipping
(U.K.) Ltd [1978] A.C. 141, 152, `unconstrained by technical rules of English law, or by
English legal precedent, but on broad principles of general acceptation.’ and where a
treaty is directly incorporated into English law by Act of the legislature, its terms become
subject to the interpretative jurisdiction of the court in the same way as any other Act of
the legislature.
Statutes: Warsaw Convention 1929 17, Vienna Convention on the Law of Treaties

Pickstone v Freemans plc [1989] AC 66 House of Lords

Miss Pickstone brought a claim against her employer under the Equal Pay Act 1970. She
was employed as a warehouse operative and was paid the same as male warehouse
operatives. However, Miss Pickstone claimed that the work of the warehouse operative
was of equal value to that done by male warehouse checkers who were paid £1.22 per
week more than she was.

The House of Lords decided that the literal approach would have left the United
Kingdom in breach of its Treaty obligations to give effect to an EU directive. It therefore
used the purposive approach and stated that Miss Pickstone was entitled to claim on
the basis of work of equal value even though there was a male employee doing the
same work as her.

Pepper v Hart [1992] 3 WLR 1032 House of Lords

The House of Lords had to decide whether a teacher at a private school had to pay tax
on the perk he received in the form of reduced school fees. The teacher sought to rely
upon a statement in Hansard made at the time the Finance Act was passed in which the
minister gave his exact circumstance as being where tax would not be payable.
Previously the courts were not allowed
to refer to Hansard (See Davis v Johnson).

Held:

The House of Lords departed from Davis v Johnson and took a purposive approach to
interpretation holding that Hansard may be referred to and the teacher was not
required to pay tax on the perk he received.

Lord Griffiths on the purposive approach:

"The days have passed when the courts adopted a literal approach. The courts use a
purposive approach, which seeks to give effect to the purpose of legislation and are
prepared to look at much extraneous material that bears upon the background against
which the legislation was enacted."

Lord Brown Wilkinson on reference to Hansard:

"My Lords, I have come to the conclusion that, as a matter of law, there are sound
reasons for making a limited modification to the existing rule (subject to strict
safeguards) unless there are constitutional or practical reasons which outweigh them. In
my judgment, subject to the questions of the privileges of the House of Commons,
reference to Parliamentary material should be permitted as an aid to the construction of
legislation which is ambiguous or obscure or the literal meaning of which leads to an
absurdity. Even in such cases references in court to Parliamentary material should only
be permitted where such material clearly discloses the mischief aimed at or the
legislative intention lying behind the ambiguous or obscure words. In the case of
statements made in Parliament, as at present advised I cannot foresee that any
statement other than the statement of the Minister or other promoter of the Bill is likely
to meet these criteria."

R v Bentham (2003) CA Statutory Interpretation – the Purposive Approach

[Statutory Interpretation – the Purposive Approach]
D robbed A, whom he believed owed him money. A was still in bed. The defendant
pointed his finger, covered by his jacket at A and demanded “every penny in the
house”. A believed his fingers were a gun.

Held: A purposive approach had to be adopted. Section 17 of the Firearms Act

1968 was clearly designed to protect the victim confronted with what he thought was a
firearm. It did not matter whether it was a plastic gun or a biro or simply anorak material
stiffened by a figure. If it had the appearance of a firearm the jury were entitled to find
the offence made out.Guilty

REGINA V BARNET LOND ON BOROUGH COUNCIL, EX PARTE SHAH:

HL 16 DEC 1982

Coram: Lord Scarman

Ratio: The five applicants had lived in the UK for at least three years while attending
school or college. All five were subject to immigration control, four had entered as
students with limited leave to remain for the duration of their studies, and the fifth had
entered with his parents for settlement and had indefinite leave to remain. They
challenged the refusal to allow them grants for their education.
Held: The House construed the expression ‘ordinarily resident’ in the 1962 and 1980
Acts. Long-standing authority on the meaning of the expression was referred to. The
natural and ordinary meaning of ordinary residence had been settled by two tax cases.
Lord Scarman said: ‘Unless, therefore, it can be shown that the statutory framework or
the legal context in which the words are used requires a different meaning, I
unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in
a particular place or country which he has adopted voluntarily and for settled purposes
as part of the regular order of his life for the time being, whether of short or of long
duration.’
The court allowed one exception: ‘If a man’s presence in a particular place or country is
unlawful, eg in breach of the immigration laws, he cannot rely on his unlawful residence
as constituting ordinary residence (even though in a tax case the Crown may be able to
do so.

R v Brown [1993] 2 All ER 75 House of Lords

The five appellants were convicted on various counts of ABH and wounding a under the
Offences Against the Person Act 1861. The injuries were inflicted during consensual
homosexual sadomasochist activities. The trial judge ruled that the consent of the victim
conferred no defence and the appellants thus pleaded guilty and appealed. The Court of
Appeal upheld the convictions and certified the following point of law of general public
importance:

"Where A wounds or assaults B occasioning him actual bodily harm in the course of a
sado-masochistic encounter, does the prosecution have to prove lack of consent on the
part of B before they can establish A's guilt under section 20 and section 47 of the 1861,
Offences Against the Person Act?"

Held: 3:2
The defence of consent cannot be relied on in offences under s.47 and s.20 OAPA 1861
where the injuries resulted from sadomasochist activities.
CLARKE V KATO AND OT HERS; CUTTER V EAGLE STAR
INSURANCE CO LTD: HL 25 NOV 1998
Coram: Lord Browne-Wilkinson, Lord Goff of Chieveley, Lord Slynn of Hadley, Lord
Steyn, Lord Clyde
Ratio: Save exceptionally, a car park is not a road for the purposes of road traffic
legislation on obligatory insurance. It is an unjustified strain on the language. A
distinction made between the road ways and the parking bays was artificial and
unhelpful. Whether any particular area was a road is a question of fact in each case. ‘In
the generality of the matter it seems to me that in the ordinary use of language a car
park does not so qualify. In character and more especially in function they are distinct. It
is of course possible to park on a road, but that does not mean that the road is a car
park. Correspondingly one can drive from one point to another over a car park, but that
does not mean that the route which has been taken is a road. It is here that the
distinction in function between road and car park is of importance. The proper function
of a road is to enable movement along it to a destination. Incidentally a vehicle on it
may be stationary. One can use a road for parking. ‘
Statutes: Road Traffic Act 1988 145(3)(a)

Pringles Case 2008

Procter & Gamble will be forced to pay tens of millions of pounds in VAT after
losing a legal battle with the taxman over its Pringles snack.
The Court of Appeal ruled in favour of the Revenue, which has long maintained that Pringles
constitute a potato snack and are, therefore, liable for VAT.
A High Court judge ruled last summer that the snack was exempt from the tax.
Foods are usually exempt from VAT, but one of the few exceptions is the humble potato
crisp.
'Reasonable view'
A High Court judge ruled last July that Pringles' packaging, "unnatural shape" and the fact
that the potato content is less than 50% meant the snack was exempt from VAT.
The Appeal Court judges disagreed.
"There is more than enough potato content for it to be a reasonable view that it is made
from potato," said Lord Justice Jacob.
Potatoes make up 42% of the Pringles' ingredients.
He added that the lawyer acting for the Revenue advised him the VAT due on the sale of
Pringles was "as much as £100m of tax for the past and about £20m a year for the future."
But a spokesperson for Procter & Gamble said the company had been paying VAT on the
snack pending the appeal process, and so was not liable for any back taxes.
Unnatural
While praising the "simplicity and common sense" of the judges, Toby O'Reilly, director in
indirect tax at Ernst & Young, said an opportunity had been missed to provide "coherent
guidance" on which snacks are, and which are not, subject to VAT.
At last year's High Court hearing, Procter & Gamble insisted that their best-selling product
was not similar to potato crisps, because of their "mouth melt" taste, "uniform colour" and
"regular shape" which "is not found in nature".
It also argued that potato crisps - unlike Pringles - did not contain non-potato flours, and
were not packaged in tubes.
Pringles are more like a cake or a biscuit, it claimed, because they are manufactured from
dough.