The UK Supreme Court recently looked at a syntax issue in McDonald v National Grid Electricity Transmission Plc [2014] 3 WLR 1197, [2014] WLR(D) 439, [2014] UKSC 53 (22 October 2014).
The issue was how to interpret a drafted clause that had an introductory phrase and it was not clear what the introductory phrase modified because it was positioned at the start of the clause. The UKSC did not state any general grammar or interpretation principles, but a few drafting lessons do emerge.
The UK clause at issue
The clause at issue was s. 47(1) of the UK Factories Act 1937, which started with this:
“In every factory in which, in connection with any process carried on, there is given off any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken to protect the persons employed…” [emphasis added]
The provision imposed a duty on employers to ensure the safety of employees in the case of dangerous emissions in the factory.
Allow me to visually display the clause so that a casual reader can more easily understand what the clause says:
“In every factory
in which,
in connection with any process carried on,
there is given off
any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or
any substantial quantity of dust of any kind,
all practicable measures shall be taken to protect the persons employed…”
A few preliminary comments about the clause
The construction “there is given off” is stilted and uncommon. “There is given off dust” is an artificial way of writing “dust is given off”. Today the provision would probably have been drafted in the active voice using a subject like “factory”, “employer” or “process”.
Turning to the original 1937 clause, the highlighted “in connection with” phrase is positioned at the start of the relative clause beginning with “in which”. A relative clause has the same structure as a sentence, so we can think of this problem as being about opening clauses in general, not just about relative clauses.
It is not clear what the “in connection with” phrase applies to exactly. Ordinarily, one would think a phrase in this position is adverbial, but it’s also possible for it to apply to the subject of the sentence. However, in this relative clause there is no real subject, which complicates the interpretation. One can only assume that the phrase was intended to be adverbial and to modify “is given off”.
Moreover, the “in connection with” phrase is unusual because it could possibly modify either a verb or a noun. Usually, it’s easy to tell whether a phrase is meant to be adjectival or adverbial from the wording alone, but that’s not the case with this phrase.
According to the UKSC, a few UK courts had decided in the past that the “in connection with” phrase modified “persons employed” so that the section meant “persons employed…in connection with any process carried on”. This meant that the duty applied only to protect those employed in connection with the process. Accordingly, there was no duty to other employees. This is not a standard grammatical understanding of a sentence like this but the courts (including the Court of Appeal in this case) were willing to accept it.
How the original clause was interpreted by the UKSC
Lord Kerr looked at the grammar of this specific provision, rejecting the grammatical interpretation of the Court of Appeal and the earlier decisions.
211. …The verb which governs the preposition “in”, in the phrase “in connection with any process carried on”, is not “employed” but “given off” (“in connection with any process … there is given off”). It is therefore the dust that must be connected to the process, rather than the persons employed.
Unfortunately, this comment is a little unclear. His Lordship first says the phrase is adverbial (“given off in connection”) — which seems quite correct — but then in the next breath he implies it is adjectival (“the dust connected”). It is safe to say that the main finding is that the “in connection with” phrase is adverbial.
The court goes on to discuss an alternative interpretation:
An alternative possibility, that the words “the persons employed” might refer back to the phrase “in the factory”, must also be rejected: the verb which governs the preposition “in”, in the phrase “in every factory”, is not “employed” but “taken” (“in every factory … all practicable measures shall be taken”).
Lord Justice Kerr went on to support his findings on the meaning of this sentence by looking at the context of the statute as a whole and also at the intention of Parliament. His finding:
In the light of that consideration, and also the contrast between sections 47(1) and 49, the phrase “the persons employed” should not therefore be construed as being restricted to the persons employed in the process in connection with which the dust or fume is given off. The only feasible alternative is that the phrase is intended to refer to the persons employed in the factory.
What conclusions and suggestions arise out of this?
The UKSC does not look often at grammatical or syntactic niceties, much less state interpretation principles. In this case, the court also did not provide such guidance (apart from how to interpret this specific provision). However, there are a few lessons that emerge from the case.
1. When drafting a provision, try to identify and eliminate alternative interpretations.
2. Be particularly careful with phrases at the start of drafted provisions. If you place an important phrase at the start of a complicated sentence or clause, make sure there are no alternative interpretations.
3. A phrase at the beginning could modify the verb (adverbial) or the subject (adjectival). Also, the phrase is not in a syntactically strong position so it may lead users and the court to interpret the sentence in other unexpected ways.
4. If a phrase is placed at the start of a sentence or clause without an immediately clear antecedent, the courts will look at grammar, context and intention to decide what it means. There are no obvious or clear rules about placing phrases in the introductory position that help to make this clearer.
5. When considering where to place a phrase in a complicated clause like this, ascertain what the phrase is meant to modify exactly.
6. If the phrase is meant to be adverbial, place it in the usual adverbial position even if it breaks up the subject-verb-object core of the sentence. Placing it in the standard adverbial position makes clear that it is adverbial. In this case, the sentence would (going by Lord Kerr’s understanding) have looked like this:
In every factory in which there is, in connection with any process carried on, given off any dust…
Or this:
All practicable measures shall — in every factory in which any dust is given off in connection with any process carried on — be taken to protect the persons employed.
7. If the phrase is meant to be adjectival, place it immediately beside the noun modified. Example of where it could have gone in this provision:
In every factory in which there is given off any dust in connection with any process carried on…
8. If these guidelines still result in an overly complicated sentence, it may be best to break the clause down into two or more sentences. As Bryan Garner says in A Dictionary of Modern Legal Usage, “[A clause] need not be restricted, in its application, to a single sentence, as some lawyers mistakenly believe.”
This 1937 clause made over for modern readers
In modern language and drafting style (i.e. using text bites not text blocks), this part of the clause would probably be drafted something like this:
(1) A factory process is considered potentially dangerous if the following is given off in connection with that process:
a. dust, fume or other impurity of such character and of such extent as to be likely to be injurious or offensive to the persons employed there; or
b. any substantial quantity of dust of any kind.
(2) If there is a potentially dangerous factory process within the meaning of paragraph 1, the factory owner must take all practicable measures to protect the persons employed there.
Greg Korbee (Originally published November 2014. Republished April 2019.)
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