Case: Stock v. Frank Jones (Tipton) Ltd. (1978) 1 WLR 231
Outcome: cited
Aickin J observed (at 336-337): In Stock v. Frank Jones (Tipton) Ltd . [1978] 1 WLR 231 ; (1978) 1 All ER 948 , five members of the House of Lords dealt with this question and although their speeches differ in emphasis they were united in declining to read words into the Act there in question. Viscount Dilhorne, with whom Lord Fraser of Tullybelton agreed, said [1978] 1 WLR, at pp 234-235; (1978) 1 All ER, at p 951: It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it "according to the intent of them that made it" (Coke 4 Inst. 330). If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the court to remedy the defect. That must be left to the Legislature. The appellants contend that in view of the anomalies which they say would result from the interpretation the respondent seeks to have placed on the paragraph, to have paragraph 8(2) read as if it said: "who also took part and at the date of the dismissal were taking part in that action". As Stephenson L.J. said in the Court of Appeal, the paragraph does not so provide. "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do" said Lord Mersey in Thompson v. Goold &amp; Co. (1910) AC 409, at p 420. ". . . we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself" said Lord Loreburn L.C. in Vickers, Sons &amp; Maxim Ltd. v. Evans (1910) AC 444 , at p 445. Lord Simon of Glaisdale agreed with Viscount Dilhorne but added some further observations. After referring to the rule in Heydon's Case [1584] EngR 9 ; (1584) 3 Co Rep 7a , (76 ER 637) his Lordship said [1978] 1 WLR, at p 236; (1978) 1 All ER, at p 953: "The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said, rather than to ascertain what the draftsman meant to say. But if the draftsmanship is correct these should coincide. So if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests (statutory, objective, anomaly, etc.) which throw light on what the draftsman meant to say." At 338-339 Aickin J also endorsed comments of Lord Scarman in Stock v. Frank Jones (Tipton) Ltd . [1978] 1 WLR 231 at 239 where his Lordship said: If the words used by Parliament are plain, there is no room for the "anomalies" test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake. If words "have been inadvertently used", it is legitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated: per MacKinnon L.J. in Sutherland Publishing Co. Ltd. v. Caxton Publishing Co. Ltd . [1938] Ch 174 , at p 201 . This is an acceptable exception to the general rule that plain language excludes a consideration of anomalies, i.e. mischievous or absurd consequences. If a study of the statute as a whole leads inexorably to the conclusion that Parliament has erred in its choice of words, e.g. used "and" when "or" was clearly intended, the courts can, and must, eliminate the error by interpretation. But mere "manifest absurdity" is not enough: it must be an error (of commission or omission) which in its context defeats the intention of the Act. Turning now to the terms of item 2 in the table in s 7.1 of the Principles, I consider that the meaning of the words "variation of period for which residential care service is to be accredited" is plain. There is no ambiguity to warrant further exploration in an attempt to identify the intention of Parliament. The intention of Parliament appears clearly in the words used a reconsideration decision is reviewable when the accreditation body varies (either up or down) the period for which a residential care service is to be accredited. A reconsideration decision where the accreditation body simply confirms its original decision in relation to the period of accreditation is not a decision which "varies" that period and it is not reviewable. To read into "variation" a meaning which includes " no variation" strikes me as absurd, and in stark contradiction to the specific language of s 7.1. The second respondent submitted that an interpretation which excludes review of a reconsideration decision which merely confirms the original decision of the applicant is potentially artificial and irrational. However an interpretation the result of which is surprising, even illogical, does not mean that that interpretation is not sound or that Parliament did not intend that outcome.