Mandatory or directory?

Alec Samuels makes the case for updating the Interpretation Act

A notice has to be served. You search for the relevant statute and regulations. You find the form (hopefully the correct one) and complete it. But you make a mistake. How serious is it and what are the consequences?

Statutory regulations prescribe the relevant detail and often the procedure to be followed. For example, in leasehold the regulations may specify the notices to be given, the rent payable, and preconditions for forfeiture. When a notice is to be served, the server has to ascertain whether, and which form is required.

However, the regulations may have been changed. The prescribed form may have been updated. Regulations might have been ‘corrected’ by way of a correction slip. The form may be drafted in dry language and not always clear.

So the server may have got it wrong – perhaps a small, obvious slip, though the meaning is clear and the error is of no consequence. Or perhaps the server may have got it badly wrong.

So how does the judge resolve the problem? The law prescribes the correct approach:

• Is the law mandatory or directory? Ie. Is there a strict, mandatory requirement or a directory, indulgent, ‘should’?
• Is the legal requirement a procedural requirement (in which case substantial compliance will suffice) or a matter of substantive rights (in which case strict compliance must apply)?

In scrutinising a bill, parliamentarians were concerned with policy matters and probably oblivious of the procedural matters. Where an error or mistake occurs, it is often because of deficiencies in the drafting of the relevant statutory provision leading to user misinterpretation.

Judges have recently become dissatisfied with the mandatory or directory approach. In R v Soneji [2005] UKHL 49, the court said “the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead… The emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity”.

A bona fide judicial error did not cause prejudice to the defendant so did not preclude taking confiscation proceedings. The result would have been different had there been a serious risk of injustice or loss of liberty as a consequence of non-compliance.

In Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, the court decided a notice served by the tenant stating 13 January instead of 12 January was valid – it was intended to operate on the anniversary date of the lease.

The interpretation of the notice should be objective, in context, seeking the purpose of the clause in the lease and the ordinary meaning. The notice should be sufficiently clear and unambiguous leaving the recipient in no reasonable doubt as to how and when it was to operate.

The discrepancy here was minor; the mistake was obvious. Cheerupmate2 Ltd v Calce [2018] EWCA Civ 2230 concerned an error in the notice of a demand for rent.

Lord Justice Sir Kim Lewison pointed out that the notice was prescribed by regulations in a statutory instrument; all relevant information was given in the notice (albeit somewhat unclear); the explanatory notes were helpful; and only a minor discrepancy was involved. Therefore, the directory principle applied and there was substantial procedural compliance.

However, when it came to forfeiture, the date on which forfeiture could be lawfully executed by the lessor, strict compliance was necessary. The mandatory principle applied and the error was fatal because the lessee risked losing the property.

Lawyers must ensure the notice is the correct one and is correctly filled in. If the notice used is wrong or it contains an error, the question is whether it is fatal – or can be overlooked.

There is no easy answer as to whether accuracy in the notice is mandatory (cannot be overlooked) or directory (can be overlooked). Statute and principles of statutory interpretation cannot readily resolve the problem; law and justice may conflict.

The task is probably better left to the judges exercising their judicial discretion – they can usually discern the true merits. Meanwhile, the statutory draftsmen should consider this problem. There is a case for adding an appropriate section to the Interpretation Act 1979.

Alec Samuels is a barrister