Statutory Interpretation

Tester46

What does the term "have regard to" mean in a statute? I am thinking of a situation where a court or a public body is directed to "have regard to" certain factors when exercising powers or performing statutory functions.

For example (and there are many examples in different statutes), section 16(5) of the Civil Liability and Courts Act 2004 states that:


"The court shall, when considering the making of an order as to the payment of the costs in a personal injuries action have  regard  to—
(a) the terms of a formal offer, and
(b) the reasonableness of the conduct of the parties in making their formal offers."

Does this mean that these factors must form part of the Court's overall thinking but without binding the Court in any way, does it mean these factors are to be given a special weighting over and above other factors, or does it mean something else entirely?

NoQuarter

Tester46 wrote: »

What does the term "have regard to" mean in a statute? I am thinking of a situation where a court or a public body is directed to "have regard to" certain factors when exercising powers or performing statutory functions.

For example (and there are many examples in different statutes), section 16(5) of the Civil Liability and Courts Act 2004 states that:


"The court shall, when considering the making of an order as to the payment of the costs in a personal injuries action have  regard  to—
(a) the terms of a formal offer, and
(b) the reasonableness of the conduct of the parties in making their formal offers."

Does this mean that these factors must form part of the Court's overall thinking but without binding the Court in any way, does it mean these factors are to be given a special weighting over and above other factors, or does it mean something else entirely?

This particular example is in relation to what is called a Calderbank offer, named after the case it was first used in.

Where a formal offer is made and rejected by the plaintiff, if the Court then goes on to award a sum smaller than the formal offer, the Court is statutorily bound to take that into consideration. Usually what happens in that case is the plaintiff will have to pay the defendants costs over and above what the offer was.

In general terms is just means the court must consider the factors that is "shall have regard to".

Tester46

NoQuarter wrote: »

In general terms is just means the court must consider the factors that is "shall have regard to".

Thanks. I know this particular example has its own background - I could have chosen many examples of the term "shall have regard to", it just happened to be this one.

Do you know is there any authority for the view you have set out i.e. that "In general terms is just means the court must consider the factors that is "shall have regard to"? That is what I am trying to understand. Does it simply mean what it says, or has it been interpreted by the courts to means something else?

Victor

Tester46 wrote: »

Does this mean that these factors must form part of the Court's overall thinking but without binding the Court in any way, does it mean these factors are to be given a special weighting over and above other factors

I would largely concur.

NoQuarter wrote: »

In general terms is just means the court must consider the factors that is "shall have regard to".

It is nuanced, but I would slightly disagree. Not only must the deciding authority consider the factors, but it must do so within the strictures given.

Sometimes the term "shall consider" is used, e.g. Electoral, Local Government and Planning and Development Act 2013, although is seems to be mostly older acts that use it. This term seems to give greater leeway to disregard incorrect, spurious, irrelevant, malicious, etc. material.

Tester46

Victor wrote: »

It is nuanced, but I would slightly disagree. Not only must the deciding authority consider the factors, but it must do so within the strictures given.

What do you mean "within the strictures given"? Really what I am trying to understand is this:

1. Does the term "shall have regard to" just mean
(a) that among all of the various factors the deciding authority has regard to, it must include the ones listed in the statute, but without giving them any special weighting
(b) that among all of the various factors the deciding authority has regard to, it must include the ones listed in the statute, and they are to be given a special weighting over and above other factors
(c) that it must only have regard to those factors i.e. those factors alone decide the issue
(d) something else?

2. is there are authority for saying the answer is (a), (b), (c), or (d) above, or it this just a straightforward literal interpretation of the term "shall have regard to"?

Can't find a clear answer anywhere so just wondering if the assembled legal minds here know - thanks!

NoQuarter

Tester46 wrote: »

What do you mean "within the strictures given"? Really what I am trying to understand is this:

1. Does the term "shall have regard to" just mean
(a) that among all of the various factors the deciding authority has regard to, it must include the ones listed in the statute, but without giving them any special weighting
(b) that among all of the various factors the deciding authority has regard to, it must include the ones listed in the statute, and they are to be given a special weighting over and above other factors
(c) that it must only have regard to those factors i.e. those factors alone decide the issue
(d) something else?

2. is there are authority for saying the answer is (a), (b), (c), or (d) above, or it this just a straightforward literal interpretation of the term "shall have regard to"?

Can't find a clear answer anywhere so just wondering if the assembled legal minds here know - thanks!

The answer is A but I don't know of any authority other than a literal interpretation of the statute. But a fight about the interpretation could be a case in itself... an expensive one. But ultimately I would say it is A.

Mr. Incognito

I would say B myself.

By incorporating factors that the court SHALL have regard to it is obliged by law to consider them. i.e they must be a motivating factor in the determination of the decision. For Calderbank offers they not only go to who gets costs but the quantum. You MUST beat the offer or you are on the hook for all costs from the date it is lodged. Of course there are rules around the making of the offer itself and that it must be fair and reasonable etc

If the language read that the court MAY have regard to, as it frequently does in Child and Family law it is trumped by the legislative provisions that the court SHALL consider what is in the best interests of the child at all times and not its parents, or other circumstances.

Have regard to is meaningless by itself.

It's the distinction SHALL or MAY that is important

Carawaystick

How is a calderbank offer weighed up for a litigant who wants an admission of liability, but no damages?

Mr. Incognito

Carawaystick wrote: »

How is a calderbank offer weighed up for a litigant who wants an admission of liability, but no damages?

Its not.