The Dangers of Deeming

Abstract

Law students are generally taught so little about statutory interpretation that it is particularly to be regretted that one of the few judicial quotations on the subject of statutes that most students remember throughout their later career is fictitious. In Travers v. Travers, according to A.P. Herbert [More Uncommon Law 80 (1982)] Lord Mildew memorably said: ‘There is too much of this damned deeming’. In Barclays Wealth Trustees (Jersey) Ltd v Revenue and Customs Commissioners [2017] EWCA Civ 1512 the Court of Appeal had to deal with a deeming provision and grapple with the difficulties that can arise when legislation glibly pronounces that something is deemed to be the case, and leaves the courts and other readers to cope with the fact that it simply is not. It is too easy for the legislative drafter to deem something to be the case and then sit back with the feeling of a difficult job well done, without thinking whether the practical implications of the context make the legislative deeming sufficient for all the purposes to which it is likely to need to be applied.