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The Most Likely Meaning of "Likely".

First published in the Justice of the Peace (1996) 160 JPN 425.

Given that the word "likely" appears in so many statutes it is, perhaps, surprising that there has been relatively little case law on its meaning.  It is apparent that "likely" can have a range of meanings in terms of the odds in favour or against any particular event happening.  Although the purport of "likely" should be determined according to the statutory context in which it appears, it has been interpreted in a remarkably similar way in a variety of statutes.  "Likely" is an ordinary English word and there has, rightly, been no attempt to construe it differently according to whether it appears in criminal or civil legislation.  There appears to have been  no suggestion, either, that "likely" could connote odds  of greater than those implied by "a balance of probabilities" and the debate has been about where "likely" sits in a band of odds ranging from as low as 1% or 2% to odds just greater than 50%.

"Reasonably possible".

Doble v David Greig Ltd [1972] 2 All ER 195 concerned the meaning of "likely"  as it appeared in, the now repealed, s 11 of the Trade Descriptions Act 1968 ("TDA").  That section dealt with misleading price indications and s 11(2) made it an offence, in offering to supply goods, to give "by whatever means, any indication likely to be taken as an indication that the goods are being offered at a price less than they are in fact".  The defendant displayed bottles of Ribena on his supermarket shelves which (see s 6) were therefore offered for supply.  The price given on the bottle top was 5/9d.  A label on the bottles said "the deposit on this bottle is 4d refundable on return".  A customer was charged 5/9d.  A sign at the checkout said "we do not accept the return of empty bottles.  No deposit is charged by us at the time of purchase".  The prosecution case was that as the customer could not receive a 4d refund on the bottle he should have been charged 5/5d.

Ashworth J said: "It would have been perfectly simple for Parliament merely to enact that a person who by whatever means represents, or indeed gives an indication, and stop there, and that would involve any court called on to consider it with the question whether what was said or done or displayed was a representation or an indication, and no doubt in many instances opinions might differ.  But in order to spread its net more widely, and as I think to protect customers more carefully, Parliament chose wider language ... The words 'likely to be an indication' seem to me quite plainly to involve a wider consideration than the single word 'indication'.  One is looking ... at the customers and the effect on the customers of whatever is said or done or displayed ...This section was so worded as to cater for cases where possibly the wording, strictly construed, might admit of two constructions.  The whole point in my view of including in s 11(2) the words 'likely to be taken as an indication' shows that Parliament was intending to protect people who might otherwise be met by a defence that on its true construction the offending words meant something different from that which they thought".

Forbes J was even more explicit in setting out what he thought the effect of the word "likely" was.  He said: "The words 'the deposit on this bottle is 4d refundable on return' are equivocal: they might be interpreted to mean that the price marked on the bottles included 4d earmarked as a deposit; alternatively that an additional 4d over and above the price marked would be asked for as a deposit.  Speaking for myself, I would prefer the latter interpretation, but the former is quite clearly a possible one.  The offence is giving an indication likely to be taken as an indication of the kind described in the Act.  If it is reasonably possible  that some customers might  interpret the label as an indication of that kind, it seems to me that an offence is committed, even though many more customers might in fact take the opposite view.  In other words the Act requires a shopkeeper ... to take pains to resolve possible ambiguities of this kind, and if they are not adequately resolved an offence is committed".

S 11 of the TDA has been subsumed within s 20 of the Consumer Protection Act 1987 ("CPA") which now deals with misleading price indications.  It is interesting that, although s 21 of the CPA does not use the word "likely", it defines "misleading", for the purposes of s 20, in terms of what "consumers might reasonably be expected to infer from the indication".  Thus, although Parliament has abandoned the use of the word "likely" in the context of misleading prices, it has set out a test based on reasonableness and, in so doing, may be seen to have indirectly endorsed the Doble  meaning of "likely".  The Doble meaning of  "likely" will be of particular relevance to the surviving sections of the TDA where it continues to be used in the same context as in the former s 11.  The s 11 phrase  "likely to be taken as an  indication" appears in the same or similar form in each of subsections (2), (3) and (4) of s 3, which detail when "an indication" is deemed to be a trade description. "Likely" also appears in ss 5 and 14 of the TDA.

"May" or "reasonable prospect".

Dunning v Board of Governors of the United Liverpool Hospitals [1973] 2 All ER 454 was the first case to come before the Court of Appeal under s 31 of the Administration of Justice Act 1970.  That section enables a prospective plaintiff to seek an order for disclosure of documents before the commencement of proceedings.  The word "likely" appears five times in s 31:  "On the application ... of a person who appears ... to be likely to be a party to subsequent proceedings ... in which a claim in respect of personal injuries ... is likely to be made, the High Court shall ... have power to order a person who appears ... likely to be a party to the proceedings and to be likely to have ... any documents which are relevant to an issue arising or likely to arise ... to produce ... such ... documents ...".  A difficulty in determining whether proceedings were "likely" was that this would depend on what the document being sought might reveal.  Lord Denning MR said: "I think that we should construe 'likely to be made' as meaning 'may' or 'may well be made' dependent on the outcome of the discovery".  James LJ put it a bit differently, he said: "I would construe 'likely' there as meaning a 'reasonable prospect'".

"Excluding only ... highly unlikely".

In R v Sheppard [1980] 3 All ER  899, the House of Lords had to consider whether the neglect of a child "in a manner likely to cause him unnecessary suffering" was done "wilfully", within the meaning of  s 1(1) of the Children and Young Persons Act 1933 ("CYPA").  By virtue of s 1(2) a parent is deemed to have neglected his child "in a manner likely to cause injury to his health" if he has failed to provide adequate food or other essentials set out in that subsection.  Although this case turned on the meaning of "wilfully", Lord Diplock also considered the meaning of "likely". He said: "I have referred to the parent's knowledge of the existence of some risk of injury to health rather than of a probability.  The section speaks of an act or omission that is 'likely' to cause unnecessary suffering or injury to health.  This word is imprecise.  It is capable of covering a whole range of possibilities from 'it's on the cards' to 'it's more probable than not'; but, having regard to the ordinary parent's lack of skill in diagnosis and to the very serious consequences which may result from failure to provide a child with timely medical attention, it should in my view be understood as excluding only what would fairly be described as highly unlikely".  Lord Diplock, therefore, put a very low threshold  on when an act or omission (at least in the context of s 1 of the CYPA) could be said to be "likely".  His reference to "it's on the cards" may well have been taken from the judgment of Lord Reid in The Heron II [1969] 1 AC 350, where, in the context of remoteness of damage under the law of contract he said: " It appears to me that in the ordinary use of language there is a wide gulf between saying that some event is not unlikely or quite likely to happen and saying merely that it is a serious possibility, a real danger, or on the cards.  Suppose one takes a well shuffled pack of cards, it is quite likely or not unlikely that the top card will prove to be a diamond; the odds are only three to one against; but most people would not say that it is quite likely to be the nine of diamonds for the odds are then fifty-one to one against.  On the other hand I think that most people would say that there is a serious possibility or a real danger of its being turned up first and, of course, it is on the cards".  Lord Reid was there considering "quite likely" rather than "likely" which may not be "quite" the same thing.  Nonetheless his reference to a "real danger" in the context of something being "on the cards" is interesting in that where the word "likely" is used in a statute it is generally so used in the sense of a danger, such as the danger of being harmed or misled.

"Reasonable person might"

In Cowburn v Focus Television Rentals Ltd (1983) 147 JP 201, eleven years on from  Doble v David Greig Ltd, Forbes J again applied a reasonableness test to the meaning of "likely".  On this occasion he was considering s 14 of the TDA under which it is an offence to make certain false statements as to such matters as the provision of services.  S 14(2)(a) provides that "anything ... likely to be taken for such a statement ... shall be deemed to be a false statement ...".  In this case the court was concerned with  a video recorder offered for hire with 20 films "absolutely free".  Forbes J said: "The justices, I think, posed to themselves the right test.  The question which they asked was: '... had the respondents made a false statement recklessly in failing to appreciate that a reasonable person might interpret the promotional display as offering the hire of 20 feature films totally free of any charge whatsoever including administrative and handling charges as opposed to hiring charges?'  That seems to me to be the right test; they were asking themselves, might a reasonable person so interpret it?  The test is not, might a reasonable person interpret it in the other way as well?  So long as a reasonable person might interpret a statement in a way which would make it false, then owing to s 14(2)(a), as a statement 'likely to be taken for such a statement', it becomes false, and to fail to appreciate that a statement could be interpreted in that way makes such a statement, under the special meaning of the word 'reckless', a 'reckless' statement".   In Dixons Ltd v Roberts (1984) 148 JP 513, Forbes J, reflecting on what he had said in Cowburn  said "I went too far. The proper way of expressing the test would have been: to fail to have regard to whether a statement might be interpreted in that way makes such a statement, under the special meaning of the word 'reckless', a 'reckless' statement".  This amendment relates only to the meaning of the word "reckless" and  leaves untouched  Forbes J's view that a statement is "likely" to be taken in a certain way if a reasonable person might so interpret it.


In Thomson Travel Ltd v Roberts (1984) 148 JP 666, it fell to the Divisional Court to decide whether justices were wrong in determining that a hotel was falsely described as being "right on the beach" when the facility consisted of a small man -made area of sand retained by a concrete wall with access to the sea down ladders.  Although Kerr LJ did not expressly give a definition of the word "likely" he did consider the law relating to s 14 of the TDA and noted s 14(2)(a) with its reference to what was "likely to be taken" for a statement of the specified kind.  Towards the end of his judgment Kerr LJ said:  "The justices had to decide what could be conveyed to the ordinary reader of this brochure, the purchaser of a holiday, by this description in the context of the brochure as a whole which included an adjoining photograph of a large natural sandy beach ... That is what they did.  They were rightly not concerned with the question whether that impression to the ordinary reader would accord in every respect with the word "beach" as a matter of its dictionary meaning".  Kerr LJ was, therefore, effectively  equating what was "likely to be taken" with what "could be conveyed" and including in this an "impression".

 "Could well happen"

In R v Wills [1990] Crim LR 715, the Court of Appeal, which included Lord Lane CJ, considered whether it was "likely" that an act or omission by the mother's cohabitee had caused a child unnecessary suffering within the meaning of s 1 of the CYPA.  The child had a skull fracture and the cohabitee did not get medical attention for her.  The medical evidence was that it was only in 10% of cases, or less, that a simple skull fracture resulted in complications requiring treatment.  Where such complications did occur, however, bleeding and brain damage would result.  The judgments of the court  are not reported but the headnote records that:  "Counsel had criticised the remarks of Lord Diplock in R v Sheppard [1980] ... to the effect that 'likely' should be understood  as excluding only what would fairly be described as highly unlikely.  The court agreed that the remarks were obiter but did not agree they were putting a gloss on an ordinary English word; they were properly construing the word in the context of the statute in which the word was found.  Support for a meaning of 'likely' which extended beyond probability to something which could well happen (though not merely a bare possibility) was found in  Transport Ministry v Simmonds [1973] 1 New Zealand LR 359".

 "A real possibility".

In Re H (Minors) [1996] 1 AC 563 , the House of Lords had to construe the word "likely" as it appears in the Children Act 1989 ("CA").  Before the court can make a care order or supervision order in respect of a child, s 31 of the CA provides that the court must be satisfied "(a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control".  The Law Lords were unanimous in their  interpretation of 'likely'.   Lord Lloyd of Berwick summarised his view by saying: "'Likely' in s 31(2)(a) means that there is a serious risk or real possibility that the child will suffer significant harm".   

Lord Nicholls of Birkenhead said: "In everyday usage one meaning of the word 'likely', perhaps its primary meaning, is probable, in the sense of more likely than not.  This is not its only meaning.  If I am going walking on Kinder Scout and ask whether it is likely to rain, I am using 'likely' in a different sense.  I am inquiring whether there is a real risk of rain, a risk that ought not to be ignored".  In the context of s 31 "Parliament cannot have been using 'likely' in the sense of more likely than not.  If the word 'likely' were given this meaning, it would have the effect of leaving outside the scope of care and supervision orders cases where the court is satisfied there is a real possibility of significant harm to the child in the future but that possibility falls short of being more likely than not.  Strictly, if this were the correct reading of the Act, a care or supervision order would not be available even in a case where the risk of significant harm is as likely as not.  Nothing would suffice short of proof that the child will probably suffer significant harm ... When exposed to this risk a child may need protection just as much when the risk is considered to be less than fifty-fifty as when the risk is of a higher order ... It is eminently understandable that Parliament should provide that where there is no real possibility of significant harm, parental responsibility should remain solely with the parents.  That makes sense as a threshold in the interests of the parents and the child in a way that a higher threshold, based on probability, would not.   In my view, therefore, the context shows that in s 31(2)(a) 'likely' is being used in the sense of a real possibility, a possibility that cannot sensibly be  ignored having regard to the nature and gravity of the feared harm in the particular case.  By parity of reasoning the expression 'likely to suffer significant harm' bears the same meaning elsewhere in the Act: for instance in ss 43, 44 and 46. 'likely' also bears a similar meaning, for a similar reason, in the requirement in s 31(2)(b) that the harm or likelihood of harm must be attributable to the care given to the child or 'likely' to be given him if the order were not made".


It is apparent from the review of the above cases that the word 'likely' must be construed according to the context in which it appears.  In  Thomson Travel Ltd v Roberts, supra, Webster J disapproved of  magistrates using Forbes J's dictum in  Doble  to construe the meaning of a word when dealing with s 14 of the TDA rather than s 11.  Nonetheless he was content that they were "guided" by the dictum.  Forbes J's dictum in Cowburn  is in any event almost as strong as that in Doble and was specifically in relation to s 14.  Furthermore, as already noted,  Kerr LJ, in the Thomson Travel case effectively equated "likely" with "could". 

Two further cases under the TDA are notable for their wide interpretation given to "likely", in the respective contexts of s 3 and s 14 of the TDA, even though they do not give any definition to the word.  In  Holloway v Cross [1981] 1 All ER 1012 a dealer's estimate of a car's mileage was held to  be likely to be taken as an indication as to the history of the car. As Donaldson LJ put it: "It seems to me almost clear beyond argument that if this was not a trade description it was likely to be taken by the purchaser as an indication of the history of the vehicle and, of course, if so taken was false to a material degree.  There cannot have been any point in asking the opinion of the seller as to the mileage which seems to have been done, except with a view to obtaining an indication of what its mileage was in fact".  Holloway v Cross was cited with approval in  R v Bevelectric Ltd (1993) 157 JP 323. In that case it was argued that statements made that washing machine motors needed replacing were statements of opinion and not fact and not caught by s 14.  It was held that they were statements of fact but, in any event, Staughton LJ referring to Holloway said: "The offence charged in that case was under s 1; and s 3 contains provisions as to descriptions which are 'likely to be taken for an indication' such as s 1 prohibits; in other words, the offence can be committed by implication or innuendo.  So too can an offence under s 14; see subs (2)(a), ...  even if a statement that the motor needed to be replaced was one of opinion, the implication of innuendo that a genuine assessment had been made was one of plain unvarnished fact.  On that basis, Holloway's case shows that the offences charged were covered by s 14".  What is "likely" can therefore be something which is merely implied by innuendo.

The context will usually dictate that what has to be considered is what is likely as perceived by the ordinary person and not by an expert.  In British Airways Board v Taylor [1976] 1 All ER 65 Lord Wilberforce, having referred to s 14(2)(a) of the TDA said: "So the crucial question, in relation to the letter ... is whether it was likely to be taken (by the addressee) for a statement as to the time at which the service was provided.  Whether it was so likely is thus a question of fact to be found.  That this is so was decided in a case on this section, R v Clarksons Holidays Ltd [(1972) 57 Cr App Rep 38, where] Roskill LJ said: 'The question of what this written representation meant was essentially a question of fact for the jury, subject only to this, that if the words ... relied upon by the Crown were upon their true construction incapable of bearing the meaning which the Crown sought to attribute to them' the case should be withdrawn from the jury. I respectfully agree with this: indeed it is an essential feature of the Act that, when it has to be considered whether descriptions or statements are misleading, it is the meaning which they are likely to bear to the person or persons to whom they are addressed that matters, and not the meaning which they might, on analysis, bear to a trained legal mind".

 Although context is important, there is a striking similarity between the way "likely" has been construed in a variety of statutes.  Whilst it may not be prudent to pick out any one meaning as having an overall application, it would seem that to describe "likely" as "a reasonable possibility" would not be to depart, to any significant degree, from any of the constructions given to the word in the above cases.



[Note that Forbes J's phrasing in Doble v David Greig Ltd expressing his judgment on the meaning of "likely" in the TDA was subsequently followed by Simon Brown LJ in MGN Ltd v Northamptonshire County Council (1997) 161 JP 735, where, in relation to s 20 CPA, he said:

 "It is, I should note, sufficient for the prosecutor's purpose to establish that some readers might reasonably interpret the advertisement as an indication that the watches are being sold elsewhere at a price approximating to their stated value, even though many more readers might, in fact, take a contrary view."

Re H (Minors) was applied in the criminal law cases of R v Whitehouse (1999) The Times December 10, and Wallis v Bristol Water plc [2009] EWHC 3432 (Admin), where it was held that "likely", in the context of a danger to public health, meant "a real risk, a risk that should not be ignored" and "a real possibility".

See also Nemzeti Fogyasztóvédelmi Hatóság v UPC Magyarország Kft ]


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