© 2025 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Redundant language
Presumption against otiose/dead letter language
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[40] Mr Green developed this argument with great skill, but to my mind it faces an insuperable objection. If he is right, the whole elaborate definition in subsection (8) could have been replaced by a simple reference to any capital or income of the property comprised in the chargeable settlement. Section 77 (2) (a) and (b) already refer to property comprised in the settlement, before the reader ever gets to derived property. So the taxpayers' contention deprives the latter expression of any force. But Parliament must be taken to have intended the expression to add something to the effect of section 77, and it would occasion no great surprise if the addition were found to be a category of property which is settled property, and is derived from settled property comprised in the chargeable settlement, but is not itself still comprised in the chargeable settlement." (West v. Trennery [2005] UKHL 5, Lord Walker)
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"[31] In my view, if one has to choose between these two alternatives, it is clear that the latter must be favoured, unless it is impermissible as a matter of language, and I do not think that it is. The result favoured by the Trustees means that s 249(6) would be a dead letter in every case. Even where the Bonus Shares were to be treated as income in trust law, they would be converted into notional 'income' under s 249(6)(b) and such income would, on Mr Venables' argument, fall out with s 686(2)(a)." (Howell v. Trippier [2004 EWCA Civ 885, Neuberger LJ)
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“Every word of an enactment is presumed to have been put there for a purpose (see Bennion on Statutory Interpretation, 5th 5 . ed., at page 1157). On HMRC’s construction of section 123(1)(b)(ii), however, the word “substantially” would be otiose.” (HMRC v. Lloyds TSB Equipment Leasing (No.1) Ltd [2013] UKUT 368 (TCC), §44(c), Newey J and Judge Nowlan)
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- Presumption against pointless/circular interpretation
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"[37] If [the taxpayer's] interpretation of the meaning of "HMRC" were correct, sub-sections 103(1) and (3) would be practically meaningless. Section 103(1) would be read as if anything capable of being done by an officer of Revenue and Customs could be done by such an officer or the Commissioners. That is not the natural meaning of the words used and it would be surprising if the legislation were intended to have such a circular effect. Had it been intended to make clear that Commissioners could carry out certain functions, different language would have been used. Lord Sales makes clear in the PACCAR case that the court should avoid an interpretation which is futile or pointless. It seems to me that Mr Gordon's narrow construction verges on the pointless. It also blurs the distinction between "an officer of Revenue and Customs" and "HMRC" made in both sub-sections (1) and (3)." (Marano v. HMRC [2024] EWCA Civ 876, Asplin, Coulson, Nugee LJJJ)
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Arguments from redundancy carry little weight/Parliament does legislate for the avoidance of doubt
“ My Lords, I seldom think that an argument from redundancy carries great weight, even in a Finance Act. It is not unusual for Parliament to say expressly what the courts would have inferred anyway.” (Walker v Centaur Clothes Group Ltd [2000] 1WLR 799 at 805 per Lord Hoffmann).
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"[54] I recognise that the consequence of this conclusion is that the words in paragraph 6(3) "Except as otherwise provided" had no substantive effect on enactment. The presumption that all words in a statutory provision should have substantive effect is a presumption that can be displaced. In any event Mr Thomas does not dispute that those words could have been intended to be forward looking only, to account for future amendments. While that may be regarded as an odd drafting technique since a future amendment could have inserted those words when a subsequent exception was introduced, I agree with the UT that the words are likely to have been included in Part 4 FA 2003 as a helpful aid to the reader, to point out for the future, that the generally applicable time limit might be countermanded elsewhere." (Candy v. HMRC [2022] EWCA Civ 1447, Simler, Arnold, Nugee LJJJ)
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“[Centaur Clothes Group Ltd] was concerned with an argument that one sub-section of a taxing statute would be redundant if another sub-section of the same section was interpreted in a particular way. The argument from redundancy carries even less weight when what is in issue is a different section and, moreover, one introduced by amendment. Mr Aaronson's warnings about the abuses that might result from the manipulation of intra-group debt support the inference drawn by the UT that section 171(2) (a) may well have been included for the avoidance of doubt. I agree, therefore, with both tribunals that this argument does not undermine the straightforward reading of section 171A.” (DMWSHNZ Limited v. HMRC [2015] EWCA Civ 1036, Lewison LJ)
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"[54] There is a presumption that every word in an Act is to be given meaning: see Densham v Charity Commission for England and Wales [2018] UKUT 402 at [61]. At [21.2] of the current edition of Bennion, Bailey and Norbury on Statutory Interpretation, the authors explain that “given the presumption that the legislature does nothing in vain, the court must endeavour to give significance to every word of an enactment ... this applies a fortiori to a longer passage, such as a subsection or section.”
[55] But this is no more than a presumption. And, even in a case where a longer passage such as a subsection in an Act has been before a court, it is not uncommon for the courts to arrive at the conclusion that the subsection was included for reasons other than producing a substantive effect." (HMRC v. Candy [2021] UKUT 170 (TCC), Mellor J and Judge Andrew Scott)
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- Unnecessary wording may be performing emphatic function
"[30] HHL contends that the word "together" has no purpose if section 416(3) applies where "the two or more persons" act independently. That may well be right, but the mere fact that a word is unnecessary under a particular interpretation is a very weak reason for rejecting that interpretation, if, as here, the word could be seen as performing an emphatic function. In any event, it could be said that, without the word, it would be unclear whether the subsection applied where one individual satisfied one of the three conditions in subsection (2), and another individual satisfied another of those conditions." (Kellogg Brown& Root Holdings (UK) Ltd v. HMRC [2010] EWCA Civ 118)
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- Not surprising that small part of definition may be irrelevant when imported into a different context
"[44] ... But it is scarcely surprising if one small part of a complex definition provision imported from another statute has no part to play when it comes to be applied in a different statutory context. The position would not be entirely different from that arrived at by the House of Lords in the Newfields case [2001] 1 WLR 1111." (Kellogg Brown& Root Holdings (UK) Ltd v. HMRC [2010] EWCA Civ 118)
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- Except as otherwise provided does not imply the statute does contain an exception
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"[73] Whether or not a reference in this way to other provisions capable of countermanding a general proposition has a substantive legal effect is a question that can be decided only by reference to the particular provisions concerned. But it would, in our view, be an error to assume that they necessarily would." (HMRC v. Candy [2021] UKUT 170 (TCC), Mellor J and Judge Andrew Scott)
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