© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Ordinary meaning
THE PRINCIPLE
- Elementary justice demands that the rules by which the citizen is to be bound should be ascertainable by him
"The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining 'the intention of Parliament'; but what this metaphor, though convenient, omits to take into account is that the court, when acting in its interpretative role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding on him and enforceable by the executive power of the state. Elementary justice or, to use the concept often cited by the European court, the need for legal certainty, demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible. The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely on that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation." (Fothergill v. Monarch Airlines Ltd [1980] 2 All ER 696 at 705, Lord Diplock - this comment was in no way intended to be inconsistent with purposive construction as the paragraphs following it confirm)
- What would a reasonable legislature be seeking to convey with the words used?
"[73] The principles of statutory construction to be applied to arrive at the meaning of section 11(4) are not in dispute. They were summarised by Lord Hodge in R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255 at paras 29 to 31. Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. Further, statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words being considered." (HMRC v. Orsted West of Duddon Sands (UK) Limited [2026] UKSC 12, Lady Rose)
"[31] Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme, 396, in an important passage stated:
“The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. … Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.” (R (oao O) v. Secretary of State for the Home Department [2022] UKSC 3, Lord Hodge)
- Ordinary meaning supports predictability
"[12] Lord Nicholls' important constitutional insight in Spath Holme, that citizens with the help of their advisers should be able to understand statutes, points towards an interpretation that is clear and predictable. As Lord Hope DPSC stated in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153, at para 14:
"The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. This will be achieved if the legislation is construed according to the ordinary meaning of the words used."" (For Women Scotland Ltd v. The Scottish Ministers [2025] UKSC 16)
- Nothing to suggest ordinary meaning not intended
"[63] The provision then continues by saying that the personal service in question "is made available to a host employer" and that it must be "rendered for the purposes of the business" of that host employer. There is, in our view, nothing at all in the context (as we have described it above) to suggest that any of those words ("made available", "rendered", "for the purposes of the business") are being used in an unusual sense. Those words – which we note are all simple, everyday words (although "rendered" is, perhaps, somewhat old-fashioned now) – are intended, therefore, to bear their ordinary meaning.
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[65] It seems to us that we were being invited to do just that by the appellant. In our view, and to adapt the conclusion of Lord Reid in Cozens, the Secretary of State in making the amending 1994 regulations inserting para. 9 into Sch. 3 to the 1978 regulations has given no indication that the words "made available" are to be given any unusual meaning: "made available" means made available and nothing else." (Bilfinger Salamis UK Limited v. HMRC [2026] UKUT 143 (TCC), Judges Aleksander and Andrew Scott)
LIMITS
- Straightforward meaning to be tested against wider considerations
"[34]...The straightforward interpretation of section 40(2) that we have put forward in paras 24-33 above has taken the natural meaning of the words in section 40(2) in their immediate context. But we must go on to a wider consideration of context and purpose - and hence to an examination of additional relevant interpretative factors - in order to see whether this supports or contradicts the straightforward interpretation set out above." (Rakusen v. Jepsen [2023] UKSC 9)
- Contextual factors outweighing ordinary meaning where drafting appears inept
"[33] Reverting to that question, it appears to me that the analysis so far, based essentially on the use of the word "income" in ss249 and 686, justifies the following preliminary conclusion. "Income" in s249(6)(b) most naturally means income in the normal Taxes Act sense, but, if there are sufficiently strong contextual or policy reasons for justifying such an alternative conclusion, it could mean "income" for trust law purposes. When deciding whether there are strong enough reasons, it is not irrelevant to have in mind the poor drafting of s249, on which both parties are agreed.
[34] To my mind, the poor drafting of s249 serves to reinforce the view that, at least if one confines oneself to the wording of the two sections, it is impossible to reach a confident conclusion as to whether the rather inept draftsman intended the reference to "income" at the beginning of s249(6)(b) to be a reference to income in the normal Taxes Act sense, income in the trust law sense, or, indeed, income in both senses. In this connection, both parties are rightly agreed that the drafting of s249 is unsatisfactory..." (Howell v. Trippier [2004 EWCA Civ 885, Neuberger LJ)
- Some words draw their specific meaning entirely from purpose and context
"[102] I start from the proposition that the word “occupier” when it appears in different statutory provisions has no fixed meaning but must take its content from the context in which it appears and the purpose of the provisions in which it is used.
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[105] One of the many previous occasions to which Lord Nicholls was alluding may have been the observation made by Lord Mustill in Southern Water Authority v Nature Conservancy Council [1992] 1 WLR 775, at pp 781-782 where the House of Lords was considering the statutory obligation to notify “every owner and occupier” of the designation of an area as a site of special scientific interest:
“No useful progress can be made towards an assessment of this argument by looking up in dictionaries the words ‘occupy’ and ‘occupier’, or by inquiring what meaning the courts have given them in reported cases, for they draw their meaning entirely from the purpose for which and the context in which they are used …
“We must therefore consider what kinds of occupier must have been intended to fall within the prohibition with which we are here concerned.”
[106] In light of Lord Nicholls’ and Lord Mustill’s comments, with which I respectfully agree, the starting point here is not to try to define the word “occupier” and then allow that definition to mandate how the regime established by the code works. The correct approach is to work out how the regime is intended to work and then consider what meaning should be given to the word “occupier” so as best to achieve that goal.
[107] This also accords with the judgment of this court in Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs (Sea Fish Industry Authority intervening) [2011] UKSC 25; [2011] 1 WLR 1546, at para 10 (Lord Mance):
“In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance. They represent the context in which individual words are to be understood. … ‘the notion of words having a natural meaning’ is not always very helpful …, and certainly not as a starting point, before identifying the legislative purpose and scheme. …” (Cornerstone Telecommunications Infrastructure Ltd v. Compton Beauchamp Estates Ltd [2022] UKSC 18)
"[46] 46. In this connection, we are reminded of the comments of Lady Rose in the Supreme Court in Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd [2022] UKSC 18 at [102] to [107] where she deprecated the approach of starting with dictionary definitions before considering the context and purpose of the statutory scheme, noting that this accorded with an earlier judgment of the Supreme Court in Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] 1 WLR 1546..." (HMRC v. Burlington Loan Management DAC [2024] UKUT 152 (TCC), Richards J and Judge Andrew Scott)
- Coarse grained words whose outer limits are left to the courts to work out
"[11] Mr Cannon, on behalf of the taxpayers, stressed the brevity of the statutory language. He gave us a number of examples, drawn from his own experience, of cases where the taxpayer and HMRC had been in dispute about whether a particular parcel of land did or did not fall within the definition of "residential property" in section 116. I do not doubt that there will be cases in which there is room for reasonable disagreement. In view of the difficulties, Mr Cannon pressed upon us the desirability of a workmanlike and coherent test. His suggestion was that a test of whether land was required for the reasonable enjoyment of the dwelling was such a test.
[12] Whether a more prescriptive test would be desirable is, at bottom, a question of policy. We are not concerned with such questions. The only question for us is whether that is what section 116, as enacted, actually means. It is not uncommon for Parliament, even in a taxation context, to use coarse-grained words whose outer limits are left to the courts and tribunals to work out: "plant", "emoluments" and "resident" are but three examples." (Hyman v. HMRC [2022] EWCA Civ 185, Lewison, Simler, Snowden LJJJ)
DETERMINING THE ORDINARY MEANING
- Opinions may differ on the meaning of a simple English word
"[99] This case has already amply demonstrated that although Lord Upjohn was right in Barclay, Curle to say that opinions may differ on the meaning of the simple English words used in section 11(4)(a), he was over-optimistic in saying that it was impossible to give a prolonged exposition on the matter." (HMRC v. Orsted West of Duddon Sands (UK) Limited [2026] UKSC 12, Lady Rose)
- Even simplest word has a penumbra of meaning that can generate disputes
"[100] As is often the case with taxing provisions, in the vast majority of instances they are applied to the satisfaction of HMRC and taxpayers without any difficulty. It is almost always clear that something either is or is not expenditure on the provision of plant or machinery. But even the simplest and most commonly used word—"on" in the present case—has a penumbra of meaning that generates disputes in unusual fact patterns. I do not regard these studies and surveys as close to the boundary between what should be regarded as "on" plant and what is too far away from the plant itself to be so regarded. They do not fall within the statutory wording and I would therefore allow the appeal." (HMRC v. Orsted West of Duddon Sands (UK) Limited [2026] UKSC 12, Lady Rose)
- Meaning of ordinary words depends on how they are ordinarily used
"[41] So what is it for one use of an asset to be incidental to another? Where ordinary words are used in legislation it is well recognised that seeking to provide definitions of them can be a dangerous exercise, as glossing the statutory language by using other words runs the risk of those (non-statutory) words being treated as a substitute for the statutory words when they may not have quite the same meaning. Most English words have nuances of meaning and shades of usage that are not precisely captured by substituting other words. So one should be wary of trying to lay down a definition of ordinary words; the meaning of an ordinary word is to be found not so much in a dictionary but in how it is in fact ordinarily used, and I think it is generally more helpful to tease out the meaning of ordinary words by providing illustrative examples of how they are used in everyday contexts.
[42] The risk of substituting other words is neatly illustrated by the statement of the FTT at [170] that something is incidental to another matter "if it is subordinate, or secondary, to it". It is no doubt generally true that if use A is incidental to use B, then use A will be of lesser or secondary importance to use B. But that does not mean that being subordinate or secondary is what incidental means, and by expressing it in this way there is a danger of substituting a test of whether use A is secondary or subordinate to use B for the test of whether use A is incidental to use B. As Mr Ewart submitted, the FTT seem to have decided the ultimate question by assessing whether use A (the use of the Borgsten to accommodate those working on the Dunbar) was in some way lesser than use B (the other uses of the Borgsten). But as he said that does not accurately capture what it is for use A to be incidental to use B.
[43] His submission was that use A is only incidental to use B if there is some link between them, or if use A is tied in to use B, and that this is not the case if use A is an unconnected and independent purpose in itself. He gave the example of a barrister using a laptop to write a shopping list (use A) when it is primarily used to write opinions (use B). In such a case, he said, the use of it to write a shopping list is not incidental to the use of it to write opinions. Using the laptop to write a shopping list is no doubt of minor or secondary importance compared to using it to write opinions, but there is no connection between the two (other than that they happen to be uses of the same asset).
[44] I think this submission is well-founded. It seems to me to reflect the ordinary use of language. If I can express it in my own words, one would normally say that use A is incidental to use B if it arises out of use B, something that is done because of use B, or in connection with use B, or as a by-product of use B. Using a laptop to write a shopping list does not arise out of using it to write opinions – it is an independent end in itself, unconnected with the writing of opinions, albeit no doubt very much a subordinate or secondary or lesser one." (HMRC v. Dolphin Drilling Ltd [2024] EWCA Civ 1, Nugee, Jackson, Newey LJJJ)
Use of dictionaries
- Can be useful
"[22] If there were any real doubt as to the ordinary relevant meaning of the word, I can see no reason why one should not turn to dictionaries to dispel it. This is a well established technique of statutory construction, recognized in Bennion on Statutory Interpretation (at section 24.23): "Dictionaries may be consulted to ascertain the meaning of terms …".
[23] Among the definitions of a "mast" in the Oxford English Dictionary is "[a] pole resembling the mast of a ship; e.g. the tall upright pole of a derrick or similar machine". The corresponding definition in the Shorter Oxford English Dictionary is "2. A pole; a tall pole or other slender structure set upright for any purpose; esp … (b) a post or latticework upright supporting a radio or television aerial"; in the online Oxford English Dictionary, "[an] upright pole or similar vertical structure resembling a ship's mast, esp. one supporting a flag, lightning conductor, broadcasting aerial, etc.; such a pole or structure forming part of a building, crane, etc. Also: a construction, often taking the form of a latticework tower or tripod, erected on a ship for various purposes, such as radio transmission, etc."; and in the online Oxford Living Dictionaries, "[a] tall upright post on land, especially a flagpole or a television or radio transmitter". Other dictionaries define the word in a similar way. For example, in the online Chambers Dictionary the relevant definition is "any upright wooden or metal supporting pole, especially one carrying the sails of a ship, or a radio or television aerial", and in Chambers English Dictionary, "any sturdy upright pole used as support". And Collins Dictionary states that "a radio mast is a tall upright structure that is used to transmit radio or television signals". Mr Parkinson emphasized the evolution of the word's meaning to reflect changes in technology. He drew attention, for example, to uses given in the Oxford English Dictionary: "any structure used to raise and support the aerial wires" (1924), and "[a] spar for the support of an antenna" (1956)." (R (oao Mawbey) v. Cornerstone Telecommunications Infrastructure Ltd [2019] EWCA Civ 1016, Lindblom LJ)
"[24] By reference to the Supreme Court judgement in HMRC v SSE Generation Ltd [2023] UKSC 17, the Appellant submits that the Tribunal may consider dictionary definitions when ascertaining the usual meaning of the term. Further, referencing the judgment of Nugee LJ in HMRC v Dolphin Drilling Ltd [2024] EWCA Civ 1 (paragraph 41) and the Court of Appeal in Urenco Chemplants Ltd b HMRC [2022] EWCA Civ 1587 (at paragraphs 106 - 108, adopting the reasoning of Lord Neuberger in R (oao Ghai) v Newcastle City Council [2010] EWCA Civ 59 at paragraphs 21 - 26 and 33) the approach may be an iterative one driven by context. That is particularly so in a situation in which the statutory language adopted by Parliament has no statutory definition and no established special legal or technical meaning.
[25] HMRC appeared to broadly accept the Appellant's suggested approach to the interpretation of the legislation though differed on the outcome of such an approach. We therefore adopt that approach." (Ferrero UK Limited v. HMRC [2025] UKFTT 1202 (TC), Judge Brown KC)
"[51] We are required to interpret the meaning of Item 1 so as to ensure that the intent of Parliament is met. Parliament chose to use a common word in regular and ordinary use. A dictionary definition can often be a useful starting point when interpreting ordinary words but for one as oft used as food it may be of less utility (as appears to have been the position taken in some of the cases to which we were referred). Nevertheless we note that the Oxford English Dictionary defines food within the context of the phrase "of a kind used for human consumption" as "any nutritious substance that people eat of drink in order to maintain life and growth". We consider that definition to reflect what an ordinary and informed person would consider to be "food" particularly that food will be eaten or drunk." (Telamara Limited v. HMRC [2025] UKFTT 1123 (TC), Judge Amanda Brown KC)
- Can be dangerous
"[45]...Where ordinary words are used in legislation it is well recognised that seeking to provide definitions of them can be a dangerous exercise, as glossing the statutory language by using other words runs the risk of those (non-statutory) words being treated as a substitute for the statutory words when they may not have quite the same meaning. Most English words have nuances of meaning and shades of usage that are not precisely captured by substituting other words. So one should be wary of trying to lay down a definition of ordinary words; the meaning of an ordinary word is to be found not so much in a dictionary but in how it is in fact ordinarily used, and I think it is generally more helpful to tease out the meaning of ordinary words by providing illustrative examples of how they are used in everyday contexts." (HMRC v. Dolphin Drilling Ltd [2024] EWCA Civ 1, Nugee, Jackson, Newey LJJ)
"[88]...More succinctly, the authors of Bennion, Bailey and Norbury on Statutory Interpretation observe (at Section 22.1):
"The question of a word's meaning is normally to be answered directly, not by rushing to dictionaries, or by searching the Internet for substitute words and expressions, or by the use of a non-statutory checklist; or by recourse to Hansard, or by working through a range of hypothetical situations.
In the case of an ordinary word, where the legislature has chosen not to give it any special meaning, it is inappropriate for the courts to define it and lay down its meaning as a rule of construction. For example it has been said that a word like necessarily is a 'linguistically irreducible' word which judges should not replace with a synonym or paraphrase. As Lord Bingham put it in Jennings v Crown Prosecution Service:
''There is a real danger in judicial exegesis of an expression with a plain English meaning, since the exegesis may be substituted for the language of the legislation.''"
[89] We agree with Mr Watkinson that simply using an abstract dictionary definition to inform our approach to the meaning of "food" is not the right approach." (Bottled Science Limited v. HMRC [2024] UKFTT 592 (TC), Judge Baldwin)
- Variable dictionary meanings
"[42] We consider that care needs to be taken when considering the definition of terms in a dictionary. The FTT was referred to definitions in the Cambridge Dictionary, and we were referred to definitions in the Shorter Oxford Dictionary. The definitions given for "outstanding" in these dictionaries are subtly different. However, Mr Chacko's submissions did not just refer us to the definition of "outstanding" in the Shorter Oxford Dictionary, but to the definition of one of the words ("unsettled") used in the Shorter Oxford Dictionary to define "outstanding". We were not assisted by this. In the case of "outstanding", we find that the meaning is straightforward (as Flaux J also found in Pioneer Freight)." (HMRC v. Bunting [2025] UKUT 96 (TCC), Joanna Smith J and Judge Aleksander)
- Attributes on which the dictionaries converge
"[24] In the relevant sense of the word, the dictionary definitions converge. A "mast" is an upright pole or lattice-work structure, whose function is to support an antenna or aerial. Some of the definitions refer to height, or tallness, as a characteristic of a "mast"; others do not. But this is not an attribute common to all definitions, whereas uprightness, or verticality, clearly is. Tallness may be in the nature of a mast erected on the ground, but is not necessarily so for a mast mounted on a building. So, for example, the online Oxford Living Dictionaries refers to "a tall upright post on land", while the online Oxford English Dictionary refers to "an upright pole or similar vertical structure …, esp. such a pole or structure forming part of a building" (my emphasis)." (R (oao Mawbey) v. Cornerstone Telecommunications Infrastructure Ltd [2019] EWCA Civ 1016, Lindblom LJ)
- Use context to decide between more than one ordinary meaning
"[31] HMRC’s approach involves an assumption either that their preferred meaning is the ordinary meaning of the word, or that where there are two ordinary meanings for a word the wider meaning should be taken to be the ordinary meaning. Neither assumption is justified. In this case the Court of Appeal identified two possible ordinary meanings of both the words “tunnel” and “aqueduct”, not one such meaning. Where there are two ordinary meanings there is no reason for making an a priori assumption that the wider meaning should be taken. There is nothing in List B Items 1 to 6 to indicate an intention to cast the net as widely as possible, and the existence of Item 7 indicates that there was no need to do so. Nor is this approach justified by the suggested mischief. Drawing a ‘line in the sand’ or a clear boundary may well have been Parliament’s intention but that does not assist in identifying where that line or boundary has been drawn.
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[33] Where there are two possible ordinary meanings of the relevant words some means needs to be found to decide which was the meaning intended. There is nothing wrong in principle in relying upon a thematic connection which explains the grouping of items in a list. That is an important part of the statutory context. HMRC’s approach gives no effect to that context and does not proffer any explanation for the groupings made.
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[39] ...The meaning given to “tunnel” by the Court of Appeal is clear and draws ‘a line in the sand’. Drawing an objectively reasonable contextual inference as to the meaning intended is not speculative. As recently emphasised by this court in R (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255 at para 29: “Words and phrases in a statute derive their meaning from their context” (per Lord Hodge)." (SSE Generation Ltd v. HMRC [2023] UKSC 17)
Multiple ordinary meanings
- Grouping of phrases together may indicate thematic connection
"[35]...Where there is no clear, single ordinary meaning the Court of Appeal and the tribunals below were correct to consider the context and whether that assisted in identifying the correct meaning. It is clear that a different drafting technique has been used in List B (where items are grouped) and List C (where items are listed). In List B a choice has been made to identify specific structures which are to be excluded in all cases, to group those structures in separate lists and to decide the list to which each structure belongs. It is reasonable to conclude that those grouping choices were made for a reason, most obviously a thematic reason, if such can be identified." (SSE Generation Ltd v. HMRC [2023] UKSC 17)
Terms of art
"Decisions of the court upon the meanings of phrases used in Acts of Parliament may come, in the course of time, to give them the quality of terms of art which Parliament may well be assumed to have intended them to bring with them when used in subsequent legislation. In section 265, for example, terms such as "domiciled," "personally present," "ordinarily resident," have had attributed to them, both in the context of bankruptcy and in that of civil procedure generally, a wealth of refined construction which it is difficult to suppose Parliament did not intend equally to apply when those words were used in the Act of 1986. Is there any reason why that should not apply equally to the words "has carried on business?" There does not seem to me to be anything in the policy of the new Act which suggests that in this provision Parliament was intending to give those words a different meaning from those which they had been held to bear under the Act of 1914." (re a Debtor [1992] Ch 554, Hoffmann J)