NOTES OF CASES

DOIhttp://doi.org/10.1111/j.1468-2230.1977.tb02445.x
Publication Date01 Sep 1977
NOTES
OF
CASES
INTERPRETATION,
EUROPEAN-STYLE
ADHERENCE to the European Communities, together with the increas-
ing number of international conventions to which the United
Kingdom is
a
party, has tempted our courts recently to flirt with conti-
nental methods of interpretation.’ Our own methods have not given
universal satisfaction: perhaps they should be modified in an
attempt to harmonise our approach with that
of
other, and in
particular, civilian, legal systems.
This was one aspect of the problem which recently faced the
Court of Appeal in
James Buchanan
&
Co.
Ltd.
v.
Babco Forwarding
&
Shipping
(U.K.)
LtdY2
and which seems to merit
a
short note.
The defendants had contracted to transport whisky from the plain-
tiffs’ Glasgow premises to Iran, but the whisky was stolen
en route.
In addition to the value of the whisky, the plaintiffs claimed from the
defendants the sum of ;E30,000 in respect of excise duty for which
they were liable. This claim was regulated, not by common law, but
by an international convention of
1956,
given statutory force for
the
U.K.
by the Carriage of Goods by Road Act
1965.
Art.
23,
para.
4
of the convention provided that: “. . . the carriage charges,
customs duties and other charges incurred in respect of the carriage
of
goods shall be refunded in full
.
. . but no further damages shall
be payable.” The court had to decide whether the excise duty
amounted to such a charge. According to Lord Denning M.R., if
traditional English methods of interpretation were applicable, then
it did
But the court decided4 not to apply the common law rules, and
Lord Denning remarked 5:
We have for years tended to stick too
closely to the letter-to the literal interpretation of the words. We
ought, in interpreting this convention, to adopt the European
method.”
This statement suggests that there is a
single
method of statutory
interpretation
common
to European countries, and also utilised by
the European Court, to whose practice Lord Denning was referring.6
But it is not entirely correct to equate the approach of the European
Court with that of municipal courts, nor can it be said that Euro-
pean courts use only one method of statutory interpretation. Not
1
For example,
Bulmer
(H.
P.)
Ltd.
V.
I.
Bollinger
[I9741 Ch.
401;
Black-
Clawson
International Ltd.
V.
Papienverke Waldhof-Aschaffenburg
A.G.
[
19751
2
W.L.R. 513;
Fothergill
v.
Monarch Airlines Ltd., The Times,
Mar.
IS, 1977.
2
[
19761 2 W.L.R. 107.
3
At
p.
112; Roskill L.J. (at p. 118)
was
less
decided.
4
See
pp. 112,
118,
120.
5
At p. 112.
6
At
p. 112 Lord Denning states that his interpretation is based on
a
paper
by
Judge Kutscher, President
of
the European Court,
Methods
of
interpretation
as
seen
by
a
judge at the Court
of
Justice,” Luxembourg, 1976.
578
Sept. 19771 NOTES OF
CASES
579
only are several methods utilised in the interpretation of domestic
legislation, but different methods may be used in the interpretation
of
conventional treaties
on
the one hand and E.E.C. texts
on
the
other. Factors which may influence the courts in their choice are,
inter ah,
the age of the statute; the availability of preparatory
materials; the style of drafting; and the field of law involved-tax
laws will not be interpreted, for example, in the same way as family
law texts. Even the status of the deciding court may influence the
method of interpretation chosen, while, in Europe, the influence
of
doctrine,
or authoritative commentaries, must never be under-rated.
It
is often stated that, in Europe, four basic methods of interpre-
tation exist.7 Of these, the
‘‘
literal
or
grammatical
method is
employed whenever the words
of
the statute are unambiguous and
cover the fact situation adequately.* Other methods come into play
either where an ambiguity arises, or where the legislative provisions
seem to leave a gap in the law. The practice
of
codification has
helped both to mould the rules of interpretation in continental coun-
tries and to provide a solution in such situations, since the code is
seen as a comprehensive statement
of
the law which encapsulates the
aims and spirit of the legal system. In the words of those who
drafted the German civil code9:
“If
no
result can be reached
through process
of
analogy, then a decision must be drawn from
the spirit of the whole law considered as one system.”
Thus a continental court faced with an apparently novel fact-
situation might search the code
for
an analogous situation and apply
an identical solution to its new facts. Or alternatively it might apply
an argument
a
contrario
very similar to that of Lord Reid in his
analysis
of
the Occupiers’ Liability Act 1957, in
Herrington’s
case.l0
Such reasoning is often called
‘‘
logical expansion.”
. The ‘‘ historical
approach permits the court
to
interpret laws
or treaties with reference to
travaux prkparatoires
to ascertain the
intention of the legislature or, in the case of treaties, of the signa-
tories. It is usually confined to modern texts. It might be used to
buttress the logical method,
e.g.
by providing conclusive evidence
that the legislature in passing the Occupiers’ Liability Act,
consciously decided to exclude trespassers.”
It
must be stressed that all the above methods are aimed at
implementing the intention of the legislature, and that this is the
7
de Vries,
Civil Law and the Anglo-American Lawyer
(19761, p. 247; David,
French Law: its Structure, Sources and Methodology
(19721, P.
157.
But Dumon,
The
Case-Law
of
the Court
of
Justice-A Critical Examination
of
the Methods
of
Interpretation
(Luxembourg, 1976), points out that the methods described do not
always tally: for this reason he prefers a more complex classification listing 11
methods (at
111-81
e.s.).
8
Kutscher, 1-17.
9
von Mehren’s translation cited Marsh,
Lnterpretation in a National and Inter-
national Context
(1973), p. 66.
10
[
19721 2 W.L.R. 537, 545. (Failure by Parliament to include trespassers in the
Occupiers’ Liability Act seen as deliberate.)
11
For
an English example
of
use
of
travaux prlparatoires,
see the
Black-
Clawson
case (above),
per
Lord Diplock at p. 543.

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