MISCHIEF RULE

• Date: 06 February 2019

"The second canon of construction is that which is often referred to as the ‘Mischief Rule’ which was formulated by the Barons of the Exchequer in 1584 in Heydon’s Case, 3 Co. Rep. 7a at 7b as follows: "That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1st). What was the common law before the making of the Act? (2nd). What was the mischief and defect for which the common law did not provide? (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and (4th). The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and prop privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono public". To properly ascertain the mischief aimed at by a legislation it is sometimes helpful to look into the history of the legislation. It is not permissible for the Courts in England to construe an...