Mischief Rule

Mischief Rule

1. Definition is given from Heydon's Case - gave four points for the court to consider

   • (1) what was the common law before the making of the act?
   • (2) what was the mischief and defect for which the common law did not provide?
   • (3) what was the remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth?
   • (4) the true reason of the remedy

2. Looks back to the gap in the common law and interprets the Act in a way the gap is covered

3. Smith v Hughes

4. Eastbourne Borough Council v Stirling

5. Royal College of Nursing v DHSS

6. Deals with the mischief Parliament was trying to cover

7. Fills in the gap in the law

8. Produces a 'just' result

9. Risks judicial law making

10. Not as wide as the purposive approach

11. Limited to looking back at old law

12. Can make the law uncertain