[2025] UKUT 298 (LC)

It is the appellants’ case that paragraph 8 must be read in the context of the whole of schedule 8 and that “relevant works” and therefore “relevant defects” are key to its construction and must be taken to apply to paragraph 8 as to all other paragraphs. To do otherwise, it is contended, would lead to extraordinary and significant consequences for landlords.

On behalf of the respondents, it is said that the words of paragraph 8 are clear and unambiguous and that the difference between that paragraph and the other material provisions of Part 5 is deliberate and accords with the legislative purpose of the BSA.

On behalf of Almacantar, Mr Hutchings submitted that the plain intention of the legislation was to prevent qualifying leaseholders from having to pay for remediating “unsafe cladding” in buildings constructed or worked on after 1992. In particular, he said there was no intention to prevent landlords from recovering the costs of anything else. On behalf of the respondents, Mr Bates disagreed asserting that the BSA represented a radical intervention by Parliament in response to a number of overlapping crises including Grenfell, the wider building safety crisis culture of building, construction and management industries and the likelihood of leaseholders facing ruinous costs and that Parliament had decided that leaseholders should be protected against the costs of remediating historical building safety defects that they had no part in creating.

All parties agreed that broadly the primary source for statutory construction must be the precise words of the statute in question read in context and that the role of external aids is secondary, see for example R (The Good Law Project) v Electoral Commission [2018] EWHC 414 (Admin) and in construing an enactment, the court should aim to give effect to the legislative purpose: Bennion, Bailey & Norbury on Statutory Interpretation (Eighth edition) at 12.2] (Bennion).

The court can only have regard to ministerial statements about the purpose or meaning of legislation if three conditions are satisfied:

The status of explanatory notes was considered by the Court of Appeal in Adriatic where it was decided that where explanatory notes in respect of a statute did not exist when it was being passed, they may show what the Department which promoted the BSA understands it to mean, and possibly what it wished it to mean, although they cannot have informed Parliamentary decision-making and accordingly, where explanatory notes have been published only after a statute has already been enacted, the notes may be of persuasive authority, but they do not enjoy any particular legal status and can be compared with academic writings.

The court’s duty is to arrive at the legal meaning of the enactment. The legal meaning of an enactment is the meaning that conveys the legislative intention. However, “the search for legislative intention is not a search for the actual subjective intention of a particular group of politicians, but an objective search for the intention that must be imputed to the legislature by reference to the meaning of the words used and the context in which they are used”: McNutt v Transport for London [2019] EWHC 365 per Knowles J at [27].

Mr Bates additionally made reference to R (on the application of N) v Walsall Metropolitan Borough Council [2014] EWHC 1918 at [65] in support of the following proposition: “When courts identify the intention of Parliament, they do so assuming Parliament to be a rational and informed body pursuing the identifiable purposes of the legislation it enacts in a coherent and principled manner. … In essence, the courts interpret the language of a statute or statutory instrument as having the meaning which best explains why a rational and informed legislature would have acted as Parliament has. Attributing to Parliament an error or oversight is therefore an interpretation to be adopted only as a last resort.”

If it is maintained that Parliament has made an error, he said, the court must be mindful of its proper constitutional role. As Lord Nicholls explained in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586(p.592):

“A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words that Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation …”