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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Davis v Johnson [1978] UKHL 1 (09 March 1978) URL: http://www.bailii.org/uk/cases/UKHL/1978/1.html Cite as: [1979] AC 264, [1978] 2 WLR 553, [1978] UKHL 1

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Die Jovis, 9° Martii 1978

Parliamentary Archives,
HL/PO/JU/4/3/1326




HOUSE OF LORDS

DAVIS (RESPONDENT) (A.P.)

v.

JOHNSON (A.P.) (APPELLANT)

Lord Diplock
Viscount Dilhorne
Lord Kilbrandon
Lord Salmon
Lord Scarman



Lord Diplock

my lords,

This appeal is from a judgment of the Court of Appeal which, by a
majority of three out of the five members who sat (Lord Denning M.R.,
Sir George Baker, Pres. and Shaw L.J.; Goff and Cumming-Bruce L.J.J.
dissenting) purported to overrule two recent previous decisions of its own as
to the meaning of a statute.

Put in a nutshell, the basic question of statutory construction that has
given rise to so acute a conflict of judicial opinion is whether section 1 of
the Domestic Violence and Matrimonial Proceedings Act 1976 does no more
than provide additional, expeditious and more easily available remedies to
prevent threatened invasions of existing legal rights originating from other
sources, whether statutory or at common law, or whether it also, of itself,
creates new legal rights as well as new remedies for threatened invasion of
them. The former I will call the " narrower ", the latter the " broader "
meaning. In B. v. B. on 13th October 1977 the Court of Appeal consisting
of Megaw, Bridge, and Waller L.J.J. decided unanimously that it bore the
narrower meaning: it gave additional remedies but created no new legal
rights. In Cantliff v. Jenkins on 20th October 1977 the Court of Appeal
then consisting of Stamp, Orr, and Ormrod L.J.J., while holding itself to
be bound by the decision in B. v. B. since it regarded that case as indistin-
guishable, took occasion, again unanimously, to express its concurrence
with the reasoning of Bridge L.J. in B. v. B. and added, for good measure,
an additional reason in support of the narrower meaning placed upon
the section in that previous judgment. For my part, I think that Cantliff v.
Jenkins was distinguishable from B. v. B. but it is conceded that the facts
in the instant case are indistinguishable from those held by the Court of
Appeal in Cantliff v. Jenkins to be relevant to its decision in that case. So,
when the instant case came before the Court of Appeal, there was a
preliminary question which fell to be determined ; and that was whether the
Court was bound by its previous decisions in B. v. B. and Cantliff v. Jenkins.
The view of a majority of three was that it was not so bound, though their
individual reasons for so holding were not identical. This opened the way
lo a fresh consideration of the meaning of the statute by all five members.
On this question they were divided four to one. Cumming-Bruce L.J. sided
with the six Lords Justices who in the two previous cases had adopted the
narrower meaning of section 1 ; the remainder were of opinion that it bore
the wider meaning and did create new legal rights as well as new remedies
for threatened violation of them. So, cf the members of the Court of
Appeal who sit regularly in civil matters (of whom there are now seventeen)
there were seven who had adopted the narrower meaning of the section,
three who, together with the President of the Family Division, had preferred
the wider meaning, and a silent minority of seven regular members of the
Court of Appeal whose views had not been expressed by the conclusion
of the hearing of the instant case in the Court of Appeal.

I draw attention to this arithmetic because if the view expressed by the
Master of the Rolls, the President and Lord Justice Shaw that the Court of
Appeal was not bound by its own previous decisions is correct, this would
apply to its decision in the instant case; and had there been no appeal to
your Lordships' House to cut the Gordian knot, it would have been open to
the Court of Appeal in any subsequent cases to give effect to the wider or the



2

narrower construction of section 1 of the Domestic Violence and Matrimonial
Proceedings Act 1976 according to the preference of the majority of the
members who happened to be selected to sit on that particular appeal.

My Lords, the difference of judicial opinion as to the true construction
of the section has spilled over into this House; for although I agree that
on the facts of this case it may be that the order of the Court of Appeal
could be upheld, and that the actual decision in Cantliff v. Jenkins was
wrong, I nevertheless find myself regretfully compelled to part company with
the rest of your Lordships and to align myself with the seven Lords Justices
who have expressed their preference for the narrower meaning. This cannot
affect the disposition of the instant appeal nor will it affect the application of
the Act in subsequent cases ; for the section means what a majority of this
House declares it means. But it does make the score of appellate opinions in
favour of the broader and the narrower meanings eight all.

Although on the question of the construction of section 1 of the Domestic
Violence and Matrimonial Proceedings Act 1976 this House has not been
able to reach unanimity, nevertheless on what in the instant case was the
first question for the Court of Appeal, viz. whether it was bound by its own
previous decisions, I understand us to be unanimous, so I too will deal with
it first.

So far as civil matters are concerned the law upon this question is now
clear and unassailable. It has been so for more than thirty years. 1 do not
find it necessary to trace the origin and development of the doctrine of stare
decisis before the present structure of the courts was created in 1875. In that
structure the Court of Appeal in civil actions has always played, save in a
few exceptional matters, an intermediate and not a final appellate role. The
application of the doctrine of stare decisis to decisions of the Court of Appeal
was the subject of close examination by a Court of Appeal composed of
six of its eight regular members in Young v. Bristol Aeroplane Co. Ltd.
[1944] KB 718. The judgment of the Court was delivered by Lord Greene.
Its effect is summarised accurately in the headnote as being that:

" The Court of Appeal is bound to follow its own decisions and those
" of courts of co-ordinate jurisdiction, and the ' full ' court is in the same
" position in this respect as a division of the court consisting of three
" members. The only exceptions to this rule are:— (1) The court is
" entitled and bound to decide which of two conflicting decisions of its
" own it will follow ; (2) the court is bound to refuse to follow a decision
" on its own which, though not expressly overruled, cannot, in its opinion,
" stand with a decision of the House of Lords ; (3) the court is not
" bound to follow a decision of its own if it is satisfied that the decision
" was given per incuriam, e.g., where a statute or a rule having statutory
" effect which would have affected the decision was not brought to the
" attention of the earlier court."

The rule as expounded in the Bristol Aeroplane case was not new in 1944.
It had been acted upon on numerous occasions and had, as recently as the
previous year, received the express confirmation of this House of Lord
Simon L.C. with whose speech Lord Atkin agreed. (See: Perrin v. Morgan
[19431 A.C. 399 at 405.) Prior to 1944 there had prior to 1944 been an occasional
deviation from the rule, which was why a court of six was brought together
to consider it, there has been none since. It has been uniformly acted upon
by the Court of Appeal and re-affirmed, notably in a judgment of a Court
of Appeal of five, of which Lord Denning as Denning L.J. was a member,
in Morelle Ltd. v. Wakeling [1955] 2 QB 379. This judgment emphasised
the limited scope of the per incuriam exception to the general rule that the
Court of Appeal is bound by its own previous decisions. The rule has also
been uniformly accepted by this House as being correct. Because until
recently it has never been questioned the acceptance of the rule has generally
been tacit in the course of recounting the circumstances which have rendered
necessary an appeal to your Lordships' House ; but occasionally the rule has
been expressly referred to, as by Viscount Simon L.C. in the Bristol Aeroplane
case itself (ubi sup at page 169) and by Lord Morton of Henryton and Lord
Porter in Bonsor v. Musicians' Union [1956] A.C. 104 at pp. 120, 128.



3

Furthermore, the provisions of the Administration of Justice Act 1969
which authorise " leap frog " appeals in civil cases direct from the High Court
to this House are based on the tacit assumption that the rule as stated in the
Bristol Aeroplane case is correct. One of the two grounds on which a High
Court judge may authorise a " leap frog " appeal is if he is satisfied that a
point of law of general importance involved in his decision:

" (b) is one in respect of which the judge is bound by a decision of the
" Court of Appeal or of the House of Lords in previous proceedings,
" and was fully considered in the judgments given by the Court of
" Appeal or the House of Lords (as the case may be) in those previous
" proceedings."

The justification for by-passing the Court of Appeal when the decision
by which the judge is bound is one given by the Court of Appeal itself in
previous proceedings is because that court also is bound by the decision,
if the point of law was fully considered and not passed over per incuriam.

So the rule as it had been laid down in the Bristol Aeroplane case had
never been questioned thereafter until, following upon the announcement by
Lord Gardiner L.C. in 1966 that the House of Lords would feel free in
exceptional cases to depart from a previous decision of its own, Lord Denning
M.R. conducted what may be described, I hope without offence, as a one-
man crusade with the object of freeing the Court of Appeal from the
shackles which the doctrine of stare decisis imposed upon its liberty of
decision by the application of the rule laid down in the Bristol Aeroplane
case to its own previous decisions ; or, for that matter, by any decisions
of this House itself of which the Court of Appeal disapproved. See Broome
v. Cassels & Co. Ltd. [1971] 2 Q.B. 354 ; Schorsch Meier G.m.b.H. v. Hennin
[1975] Q.B. 416. In his judgment in the instant appeal, the Master of the Rolls
refers to a number of cases after 1966 in which he suggests that the Court
of Appeal has either refused to apply the rule as laid down in the Bristol
Aeroplane case or has added so many other exceptions to the three that
were stated by Lord Greene that it no longer operates as a curb on the
power of the Court of Appeal to disregard any previous decision of its own
which the majority of those members who happen to be selected to sit on
a particular appeal think is wrong Such, however, has not been the view
of the other two members of the Court of Appeal who were sitting with the
Master of the Rolls in any of those cases to which he refers. Where they
felt able to disregard a previous decision of the Court of Appeal this was
only because, in their opinion, it fell within the first or second exception
stated in the Bristol Aeroplane case.

When Miliangos v. Geo. Frank (Textiles) Ltd. [1975] Q.B. 487 was before
the Court of Appeal the Master of the Rolls appears to have reluctantly
recanted. That was a case in which Bristow J. had held that he was bound
by a decision of this House in In re United Railways of Havana, Ltd. and
Regla Warehouses, Ltd. [1961] A.C. 1007, despite the fact that the Court
of Appeal had purported to overrule it in the Schorsch Meier case. On
appeal from his decision the Master of the Rolls disposed of the case by
holding that the Court of Appeal was bound by its own previous decision
in the Schorsch Meire case. He added: —

" I have myself often said that this court is not absolutely bound
" by its own decisions and may depart from them just as the House of
" Lords from theirs: but my colleagues have not gone so far. So that
" I am in duty bound to defer to their view."

The reasons why his colleagues had not agreed to follow him are plain
enough. In an appellate court of last resort a balance must be struck between
the need on the one side for the legal certainty resulting from the binding
effort of previous decisions, and, on the other side the avoidance of undue
restriction on the proper development of the law. In the case of an inter-
mediate appellate court, however, the second desideratum can be taken
care of by appeal to a superior appellate court, if reasonable means of access
to it are available ; while the risk to the first desideratum, legal certainty,
if the court is not bound by its own previous decisions grows ever greater



4

with increasing membership and the number of three-judge divisions in
which it sits—as the arithmetic which I have earlier mentioned shows. So
the balance does not lie in the same place as in the case of a court of last
resort. That is why the Lord Chancellor's announcement about the future
attitude towards precedent of the House of Lords in its judicial capacity
concluded with the words: " This announcement is not intended to affect the
" use of precedent elsewhere than in this House."

Much has been said in the instant case about the delay and expense which
would have been involved if the Court of Appeal had treated itself as bound
by its previous decisions in B. v. B. and Cantliff v. Jenkins, so as to make
it necessary for the respondent to come to this House to argue that those
decisions should be overruled. But a similar reasoning could also be used
to justify any High Court or County Court judge in refusing to follow a
decision of the Court of Appeal which he thought was wrong. It is true
that since the appeal in the instant case was from the County Court, not
the High Court, the " leap-frog" procedure was not available, but since
it was conceded that the instant case was indistinguishable from Cantliff v.
Jenkins, there was no need for anything but the briefest of hearings in the
Court of Appeal. The appeal to this House could in that event have been
heard before Christmas instead of in January: and at less cost. The
decision could have been announced at once and the reasons given later.

Of the various ways in which the Master of the Rolls's colleagues had
expressed the reasons for continuing to regard the rule laid down in the
Bristol Aeroplane case as salutary in the interest of the administration of
justice, I select those given by my noble and learned friend Lord Scarman
in Tiverton Estates Ltd. v. Wearwell Ltd. [1975]1 Ch. 146, in the Court of
Appeal.

" The Court of Appeal occupies a central, but, save for a few excep-
" tions, an intermediate position in our legal system. To a large extent,
" the consistency and certainty of the law depend upon it. It sits almost
" always in divisions of three: more judges can sit to hear a case, but
" their decision enjoys no greater authority than a court composed of
" three. If, therefore, throwing aside the restraints of Young v. Bristol
" Aeroplane Co. Ltd., one division of the court should refuse to follow
" another because it believed the other's decision to be wrong, there
" would be a risk of confusion and doubt arising where there should
" be consistency and certainty. The appropriate forum for the correc-
" tion of the Court of Appeal's errors is the House of Lords, where the
" decision will at least have the merit of being final and binding—
" subject only to the House's power to review its own decisions. The
" House of Lords, as the court of last resort, needs this power of review:
" it does not follow that an intermediate appellate court needs it and,
" for the reasons I have given, I believe the Court of Appeal is better
" without it, save in the exceptional circumstances specified in Young
" v. Bristol Aeroplane Co. Ltd."

My own reason for selecting this passage out of many is because in the
following year in Farrell v. Alexander [1976] Q.B. 345 Lord Scarman again
referred to it in dissociating himself from the view, to which the Master of
the Rolls had by then once again reverted, that the Court of Appeal was
not bound by any previous decision of its own that it was satisfied was

wrong. What my noble and learned friend there said was:

" I have immense sympathy with the approach of Lord Denning
" M.R. I decline to accept his lead only because I think it damaging
" to the law in the long term—though it would undoubtedly do justice
" in the present case. To some it will appear that justice is being
" denied by a timid, conservative adherence to judicial precedent. They

" would be wrong. Consistency is necessary to certainty one of the

" great objectives of law. The Court of Appeal—at the very centre of
" our legal system—is responsible for its stability, its consistency, and
" its predictability: see my comments in Tiverton Estates Ltd v Wearwell
" Ltd. [1975] Ch. 146, 172. The task of law reform, which calls for
" wide-ranging techniques of consultation and discussion that cannot



5

" be compressed into the forensic medium, is for others. The courts
" are not to be blamed in a case such as this. If there be blame, it
" rests elsewhere."

When Farrell v. Alexander reached this House ([1977] AC 59) Lord
Scarman's way of putting it was expressly approved by my noble and
learned friends Viscount Dilhorne (at p. 81) and Lord Simon of Glaisdale
(at p. 92), while the other member of this House who adverted to the
question of stare decisis, Lord Russell of Killowen, expressed his " unreserved
disapproval" of that part of the Master of the Rolls' judgment in which
he persisted in his heterodox views on the subject.

In the instant case Lord Denning M.R. in effect reiterated his opinion
that the Court of Appeal in relation to its own previous decisions should
adopt the same rule as that which the House of Lords since the announce-
ment in 1966 has applied in relation to its previous decisions. The President,
on the other hand, preferred to deal with the problem of stare deems by
adding a new exception to the rule in the Bristol Aeroplane case which he
formulated as follows: —

" The court is not bound to follow a previous decision of its own
" if satisfied that that decision was clearly wrong and cannot stand
" in the face of the will and intention of Parliament expressed in simple
" language in a recent statute passed to remedy a serious mischief or
" abuse, and further adherence to the previous decision must lead to
" injustice in the particular case and unduly restrict proper development
" of the law with injustice to others."

Lord Justice Shaw phrased the exception rather differently. He said:

" It would be in some such terms as that the principle of stare decisis
" should be relaxed where its application would have the effect of
" depriving actual and potential victims of violence of a vital protection
" which an Act of Parliament was plainly designed to afford to them,
" especially where, as in the context of domestic violence, that deprivation
" must inevitably give rise to an irremediable detriment to such victims
" and create in regard to them an injustice irreversible by a later decision
" of the House of Lords."

My Lords, the exception as stated by the President would seem wide
enough to cover any previous decision on the construction of a statute
which the majority of the court thought was wrong and would have con-
sequences that were regrettable, at any rate if they felt sufficiently strongly
about it. As stated by Shaw L.J. the exception would appear to be what
might be termed a " one-off " exception. It is difficult to think of any other
statute to which it would apply.

In my opinion, this House should take this occasion to re-affirm expressly,
unequivocably and unanimously that the rule laid down in the Bristol
Aeroplane case as to stare decisis is still binding on the Court of Appeal.

I come now to the construction of section 1 of the Domestic Violence
and Matrimonial Proceedings Act 1976 under which the applicant. Miss Davis,
sought an injunction against the respondent, Mr. Johnson, to exclude him
from the council flat in Hackney of which they were joint tenants.

The relevant facts can be stated briefly. The parties who were unmarried
had been living together there as man and wife for about three years, together
with a child of their illicit union, now aged three. He treated her with
appalling violence: she was in fear of her life and fled the premises on
18th September 1977 with the child. She found asylum at a refuge for
women in her predicament. It was grossly over-crowded, insanitary and
uncomfortable. On llth October she applied to the Brentford County
Court under section 1 of the Act for injunctions restraining the respondent
from using violence towards her and ordering him to vacate the flat and
not to return to it. These she was granted initially but after the decision in
Cantliff v. Jenkins the injunction excluding the respondent from the flat was
withdrawn. Against its withdrawal the instant appeal to the Court of Appeal



6

was brought, it being conceded that the applicant was entitled to the
injunctions against violence.

The section under which Miss Davis's application was made reads as
follows: —

" 1._(i) Without prejudice to the jurisdiction of the High Court, on
" an application by a party to a marriage a county court shall have
" jurisdiction to grant an injunction containing one or more of the follow-
" ing provisions, namely:~

" (a) a provision restraining the other party to the marriage from

" molesting the applicant ;

" (b) a provision restraining the other party from molesting a child

" living with the applicant;

" (c) a provision excluding the other party from the matrimonial
" home or a part of the matrimonial home or from a specified area
" in which the matromonial home is included ;

" (d) a provision requiring the other party to permit the applicant
" to enter and remain in the matrimonial home or a part of the
" matrimonial home ;

" whether or not any other relief is sought in the proceedings.

" (2) Subsection (1) above shall apply to a man and a woman who
" are living with each other in the same household as husband and wife
"as it applies to the parties to a marriage and any reference to the
" matrimonial home shall be construed accordingly."

I am in agreement with your Lordships that upon the facts that I have
summarised the county court judge had jurisdiction to grant an injunction
excluding Mr. Johnson temporarily from the flat of which he and Miss Davis
were joint tenants. I reach this conclusion notwithstanding that, in disagree-
ment with your Lordships, I remain unpersuaded that section 1 (2) bears the
broader meaning rather than the narrower one. As my opinion that the
narrower meaning is to be preferred will not prevail 1 shall resist the tempta-
tion to add to or elaborate upon the reasons given by Bridge L.J. in B. v. B.
for that preference. There are, however, two initial matters of more general
application to the interpretation of statutes that arise out of the judgment
of the Court of Appeal. Upon these I wish to comment.

I have had the advantage of reading what my noble and learned friends
Viscount Dilhorne and Lord Scarman have to say about the use of Hansard
as an aid to the construction of a statute. 1 agree with them entirely and
would add a word of warning against drawing too facile an analogy between
proceedings in the parliament of the United Kingdom and those travaux
preparatoires which may be looked at by the courts of some of our fellow
member states of the European Economic Community to resolve doubts as
to the interpretation of national legislation or by the European Court of
Justice, and consequently by English courts themselves, to resolve doubts
as to the interpretation of Community legislation. Community legislation
viz. Regulations and Directives, are required by the Treaty of Rome to state
reasons on which they are based, and when submitted to the Council in the
form of a proposal by the Commission the practice is for them to be
accompanied by an explanatory memorandum by the Commission expanding
the reasons which appear in more summary form in the draft Regulation or
Directive itself. The explanatory memoranda are published in the Official
Journal together with the proposed Regulations or Directives to which they
relate. These are true travaux preparatoires; they are of a very different
character from what is said in the passion or lethargy of parliamentary
debate; yet a survey of the judgments of the European Court of Justice
will show how rarely that court refers even to these explanatory memoranda
for the purpose of interpreting Community legislation.

A closer analogy with travaux preparatoires is to be found in reports
of such bodies as the Law Commissions and committees or commissions
appointed by Government or by either House of Parliament to consider



7

reforming particular branches of the law. Where legislation follows upon a
published report of this kind the report may be used as an aid to identify
the mischief which the legislation is intended to remedy; but not for the
purpose of construing the enacting words in such a way as to conform with
recommendations made in the report as to the form the remedy should take.
Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg
A0.G. [1975] AC 591. This does not mean, of course, that one must shut
one's eyes to the recommendations, for a suggestion as to a remedy may
throw light on what the mischief itself is thought to be ; but it does not follow
that parliament when it legislates to remedy the mischief has adopted in
their entirety or, indeed, at all the remedies recommended in the report.

This is well illustrated in the instant case. The report on which the
Domestic Violence and Matrimonial Proceedings Act 1976 was undoubtedly
based is the Report of the Select Committee of the House of Commons on
Violence in Marriage published in July 1975. It deals almost exclusively
with the plight of married women exposed to violence by their husbands and
resulting homelessness for themselves and their children. In the single para-
graph referring to unmarried couples described (regrettably I think) as
" co-habitees", the members of the Committee disclaim any particular
knowledge of the problem, on which they had not taken evidence. Never-
theless they recommended that so far as the grant of injunctions against
violence by their paramours was concerned mistresses should have the same
procedural rights as married women. As regards homelessness of mistresses,
however, all the Committee recommended was that the Guardianship of
Minors Acts should be amended to provide that where there was a child
of the illicit union of which paternity could be proved, the court should have
power to make orders giving the mistress while she was caring for the
children during their minority sole right of occupation of the premises which
had been occupied by the unmarried couple as their home. Whatever section
1 (2) of the Act may do it does not do that.

1 conclude by explaining briefly my own reasons for dismissing this appeal.
I understand your Lordships to agree in holding, as I myself would hold,
that subsection (1) leaves the substantive law relating to husbands and wives
unchanged. All that it does is to provide them with a simpler, speedier,
more widely available and more effective remedy for threatened violation
of legal rights either already existing when the Act was passed or newly-
created sections 3 and 4. What I cannot accept is that subsection (2), in
contrast to subsection (1), was intended to change the substantive law by
authorising county court judges to make drastic inroads upon the respective
legal rights of parties to an illicit union to occupy the premises in which
they have been living together as man and wife ; yet without any statement
in the subsection of the limits, if any, that are imposed upon those inroads.
Nevertheless under the existing substantive law a mistress is entitled to pro-
tection against the tort of assault, and if, as in the instant case, she is joint
tenant with her paramour of the premises in which she has been living with
him, she has a legal right to continue in peaceful occupation of them. This
latter right of hers is one that he has no right to disturb, and his own corres-
ponding right of occupation is one that can be lawfully exercised only in
a manner that does not interfere with it. Where the county court judge is
satisfied that there is grave danger that if the mistress returns to the premises
her paramour will assault her or her child then, as ancillary to an injunction
against threatened violence, the judge would, in my view, have jurisdiction
to make an order under section 1 (c) excluding him from the premises ;
but such an order could properly continue only so long as there was danger
that if permitted to return he would assault his mistress or her child.

It is the mistress's legal right under a joint tenancy to continue in occupa-
tion of the premises that distinguishes the instant case from B. v. B. The
same distinction could have been drawn in Cantliff v. Jenkins, which, for
this reason, I think was wrongly decided.

For these reasons I too would dismiss this appeal.

8

Viscount Dilhorne

-

MY LORDS,

The result of this appeal depends on the meaning and effect of section 1
of the Domestic Violence and Matrimonial Proceedings Act 1976. Its
terms must be considered against the background of the Matrimonial Homes
Act 1967 which conferred on a spouse not entitled to occupy a dwelling-
house by virtue of any estate or interest or contract or enactment, the right,
if in occupation, not to be evicted or excluded from it by the other spouse
except with the leave of the court, and the right, if not in occupation, with
the leave of the court to enter into and occupy it. Section 1(2) of that Act
provided that so long as one spounse had rights of occupation, either of the
spouses might apply to the court for an order " declaring, enforcing, restrict-
" ing or terminating those rights or regulating the exercise by either spouse
of the right to occupy the "dwelling-house" and section 1(3) provided that
on an application under the section the court might make such order as it
thought just and reasonable having regard to the conduct of the spouses
toward each other, to their financial resources and the needs of the children.

In Tan v. Tan [1973] A.C. 254 it was held that this section did not give
the court power to prohibit, though it gave power to regulate, the occupation
of the matrimonial home by a spouse legally entitled to occupy it. Lord
Pearson in the course of his opinion, with which the other members of the
House agreed, pointed out that if the Act enabled a court to prohibit the
occupation by a tenant of his house, it made " a very drastic inroad into
" the common law rights of the property-owning spouse". He said,
" According to a well-established principle of construction an interpretation
" which has this effect ought not to be adopted unless the enactment plainly
" bears that meaning. That principle has to be set against the possible
" practical advantages of a liberal interpretation which may support its
" claims to be the reasonable interpretation. In the end one has to read
" the enactment in its context and come to a conclusion as to what it means."

That drastic inroad into the common law rights of property has now been
made by the amendment of section 1 (2) of that Act by section 3 of the
Domestic Violence and Matrimonial Proceedings Act 1976, which came
into force in June 1977. Since then, as a result of the amendments made,
a spouse can get an order excluding the other spouse from the matrimonial
home even though that spouse is the owner or the tenant of it, and an order
requiring that spouse to permit the spouse applying for the order, to enter
and to remain in the home.

Section 1 of the Domestic Violence and Matrimonial Proceedings Act has

the marginal note " Matrimonial injunctions in the county court" and sub-
section (1) begins with the words "Without prejudice to the jurisdiction of
" the High Court " so the jurisdiction of the High Court is not affected.
Bridge L.J. in B. v. B. thought that if the section altered the substantive
law affecting parties' rights to occupy premises, it would produce the
astonishing result that the substantive law in the county court was different
from that to be applied in the High Court. So far as spouses are concerned,
I do not think that the section in any way extends the substantive law as
now, since the amendment of the 1967 Act, applied in the High Court.

It provides that a county court has jurisdiction to grant an injunction
containing the following provisions:

" (a) a provision restraining the other party to the marriage from
" molesting the applicant;

" (b) a provision restraining the other party from molesting a child living
" with the applicant;

" (c) a provision excluding the other party from the matrimonial home
" or a part of the matrimonial home or from a specified area in
" which the matrimonial home is included ;

9

" (d) a provision requiring the other party to permit the applicant to
" enter and remain in the matrimonial home or a part of the matri-
" monial home;

" whether or not any other relief is sought in the proceedings."

Injunctions restraining one spouse from molesting the other are and were
obtainable in the Family Division of the High Court and in the county courts
designated for divorce work; and, since this Act came into force, there is
power under the Matrimonial Homes Act to grant in the High Court an
injunction containing the provisions set out in (c) and (d) above against a
spouse who is the owner or tenant of the home.

So far as spouses are concerned, the changes made by section 1 are that
injunctions containing these provisions are made obtainable in any county
court: the requirement in the Family Division that proceedings for divorce
or judicial separation must be pending or an undertaking given to start them
is dispensed with ; and, in relation to applications for injunctions under the
section, the requirement in the county court that in addition to a claim for an
injunction, there must be a claim for some other relief is also dispensed
with.

Subsection (2) of section 1 provides that subsection (1) shall apply to a
man and woman who are living with each other in the same household as
husband and wife as it applies to the parties to a marriage; and that any
reference to the matrimonial home shall be construed accordingly. Their
home, despite the fact that they are unmarried, is to be treated as the
matrimonial home.

It is in relation to the application of subsection (2) to subsection (1) that
difficulty has arisen. Since June 1977, when the 1976 Act came into force,
there have been three decisions of the Court of Appeal on it. In the first
of them B. v. B. Megaw, Bridge and Waller LJJ. held that subsection (1)
did not give a county court power to exclude from a council house a man
who was the tenant of it at the instance of the woman with whom he had
been living. In the second Cantliff v. Jenkins Stamp, Orr and Ormrod L.JJ.
rightly held that they were bound by the decision in B. v. B. but made it clear
that if they had not been bound by it they would have reached the same
conclusion.

To hear the appeal in the present case a court of five was convened, a
court described by the Master of the Rolls as " a court of all the talents ".
Its members were Lord Denning, M.R., Sir George Baker, P., Goff, Shaw
and Cumming-Bruce L.JJ. Lord Denning, the President and Shaw L.J.
did not regard themselves as bound by the previous decisions of the court.
They held that an injunction could be granted to an unmarried applicant
excluding the man with whom she had been living from the occupation of
the premises of which he was with her a joint tenant. Goff L.J. would have
joined with them had he not felt bound by the previous decisions ; Cumming-
Bruce L.J. agreed with the decisions in the earlier cases.

So seven eminent Lords Justices have come to one conclusion and the
Master of the Rolls, the President and two Lords Justices take the opposite
view ; and there is a division of opinion in the House. Few, if any, sections
of a modern Act can have given rise to so much litigation in so short a
time and to such a difference of opinion. A few more words in the Act
would have avoided all this litigation and I regard it as surprising, in view
of the issue raised in Tarr v. Tarr [1973] A.C. 254, that it was not made
clear beyond doubt whether or not a county court was to be enabled by
subsection (1) of the Act to grant an injunction excluding a man at the
instance of the woman with whom he had been living as if she was his
wife from the occupation of a house which he had a legal right to occupy
or compelling him to allow her to enter into and remain in the house which
he had and she had not a legal right to occupy. The 1976 Act gives the
same rights to an unmarried man as it does to an unmarried woman living



10

in the same household as husband and wife, but as in the majority of cases it
will be the woman who invokes the Act, I propose to refer to her only.

It was held in B. v. B. that section 1 made no change in the substantive
law. So far as spouses are concerned, as I have said, I agree that is the case.
Not having changed the substantive law, it was held that it conferred no
rights on an unmarried person coming within subsection (2); so an unmarried
woman could only obtain an injunction under subsection 1 (c) or (d) (exclud-
ing the man from the home or requiring him to permit her to enter and
remain in it) to support a legal right she had apart from the section. In
that case Mr. B., the tenant, had an indefeasible right as against Mrs. B.
to continue in occupation by virtue of his tenancy and she had no legal
right to occupy. In Cantliff v. Jenkins where, as in this case, the unmarried
man and woman were joint tenants, Stamp L.J. said that " Put in layman's
language, what it" (the section) " does is to confer a remedy to protect a
right ".

Violence is a form of molestation but molestation may take place without
the threat or use of violence and still be serious and inimical to mental and
physical health. Where, as here, violence was used, it was not disputed that
an injunction restraining it could be granted. Where other forms of molesta-
tion occur, it is probable that if it is of such a character that the court would
be disposed to grant an injunction in respect of it, there would be a right
of action for nuisance.

If, however, the views expressed in B. v. B., in Cantliff v. Jenkins and by
Cumming-Bruce L.J. in the present case are right, it means that an un-
married woman, no matter the degree of violence or other molestation
threatened or used, will not be entitled to obtain an injunction excluding
him from what has been their home or one requiring a man to allow her to
enter and remain in it if he is the owner or tenant and she has no legal
right to be there. A battered wife can get such injunctions ; a battered
mistress to whom subsection (2) applies will not be able to do so unless she
has a legal right to be in the home. The vast majority of women to whom
subsection (2) is intended to apply will have no such rights and so to interpret
the section means that an unmarried woman is not given the same rights as
a married one.

An injunction to exclude the man from the premises may be necessary
to protect the woman from violence and molestation but I do not see how
an injunction requiring him to permit her to enter and remain in the house
can be linked with protection from violence or molestation.

Our task is to give effect to the intention of Parliament if that can be seen
from the language of the statute. Here the language is clear and unambigu-
ous and Parliament's intention apparent. Unmarried persons living together
in the same household as husband and wife are for the purposes of section
1 (1) to be treated as if they were married. The unmarried woman to whom
subsection (2) applies is to have the same rights as a married woman. A
county court judge in the exercise of his discretion can grant an injunction
excluding a husband from the home or requiring him to permit her to enter
and remain there whether or not she has been subjected to or threatened
with violence or molestation. In my opinion subsection (2) entitles him to
grant one to an unmarried woman if he would grant it were she
married, if the circumstances warrant it and whether or not she has been
threatened or molested. Just as a married woman can be protected from
eviction from the matrimonial home, so can an unmarried woman coming
within subsection (2) be protected from eviction from what has been her
home, it may be for a long time. A man who has been living with a woman
as his wife in the same household may suddenly tell her to leave and she
without violence or molestation may leave and become homeless. He may
not say anything but just change the locks on the house when she is out
and refuse to admit her. In such cases I do not doubt that it was Parliament's
intention to protect her and in my opinion a county court judge now has
power to do so.

11

To hold that protection can only be given if she has property rights is to
differentiate between married women and unmarried women to whom sub^:
section (1) is intended to apply and would in my opinion frustrate the inten-
tion of Parliament. Subsection (1) is not concerned with property rights.
Injunctions granted under it can interfere with the enjoyment of such rights,
as I have said. In this case and in Cantliff v. Jenkins the man and woman
were joint tenants but the fact that the woman is a joint tenant in my opinion
makes no difference to and does not affect her rights under the subsection.
It was not intended to provide a means for the enforcement of property
rights but to give protection from domestic violence and from eviction.
Reliance should not be placed on it for the enforcement of property rights.
If an injunction has been granted under subsection 1 (c) or (d), it is, I think,
inconceivable that an order for possession should be made in favour of the
man if he is the owner or tenant who has been living with her in the premises
as his wife while the injunction is in force.

I recognise that to give effect to that intention, means that an unmarried
woman may get an injunction in a county court unobtainable by her in the
High Court, an injunction excluding the man from premises of which he is
the tenant or owner and to which she has no legal right, and an injunction
entitling her to enter into and remain in premises which, if such an injunction
is not granted, he or she would have no right to occupy. But it is within
the competence of Parliament so to provide and in my opinion Parliament
has done so, in clear and unmistakable language. By amending the Matri-
monial Homes Act, it has made a drastic inroad into the common law rights
of the property owning spouse. By section 1 it has also made a drastic inroad
into the exercise of the common law rights of the owner or tenant of the
home who has been living there with another person as husband and wife
though unmarried.

In Cantliff v. Jenkins Stamp L.J. posed the question: How long would
such an injunction last? He thought that as a practical matter it would be
equivalent to a transfer of property. With great respect I do not agree. Such
an injunction will not affect the legal rights to the home. It will, or may.
interfere with the enjoyment of those rights.

As I see it the main purpose of section 1 was to facilitate applications by
those for whose benefit it was enacted, for the speedy grant of orders protecting
them from molestation and from being immediately evicted from the home in
which, it may be, they had lived for many years. In B. v. B. the parties had
been living together for 10 years. Its purpose was the provision of imme-
diate relief not permanent resolution of the situation arising on the break-up
of a marriage or an association where the parties though unmarried had
been living as if they were.

It will be within the discretion of the county court judge to decide whether
an injunction should be granted and to decide how long it shall operate. It
would obviously be terminated should spouses be reconciled. In the case
of spouses it might be followed by an application under the Matrimonial
Homes Act and it may be that a county court judge in the exercise of his
discretion would grant an injunction till further order and would make it clear
that it would lapse if no application was made under that Act and if such
an application was made, only continued until an order had been made
under it.

In the case of unmarried persons where the injunction excludes the party
who has property rights from his home or permits the party with no property
rights to occupy it, a county court judge might think it right to make it clear
that the injunction is to be of a temporary character to enable both parties
to regulate their affairs. Jt appears that in this case the council granted the
tenancy of the flat on account of the respondent's and her child's housing
needs, and that she and the appellant became joint tenants of it at his
instance and after she and the child had been living there without him for
some three months. If this be so, then the council might have been willing
to grant her the tenancy alone and, in view of what has happened, may now



12

be disposed to terminate the joint tenancy and give her the sole tenancy;
and the county court judge may think that the injunction should only continue
until the council has dealt with the matter.

Were it not for what my noble and learned friend Lord Diplock has said
with regard to the departure from precedent made by the majority of the
Court of Appeal in the present case, I would have felt it necessary to write
at some length on the question whether the Court of Appeal is entitled not
to follow an earlier decision of that Court which is not distinguishable.
My noble and learned friend has dealt so fully with that, and I am in such
complete agreement with what he has said that it is not necessary for me to
do so.

That question was conclusively, and one would have hoped finally, settled
by the decision in Young v. Bristol Aeroplane Co. Ltd. [1944] 1 K.B. 718,
a court indeed of all the talents consisting as it did of Lord Greene, M.R.,
Scott, MacKinnon, Luxmoore, Goddard and du Parcq L.JJ.

Since then one new factor has arisen and I wish to add a few observations
with regard to that. Prior to 1966 this House treated earlier decisions made
by it which were not distinguishable as binding. It was left to Parliament to
amend the law laid down by the earlier decisions if in the light of modern
conditions it was felt that that decision should no longer be followed. Owing
to pressure on Parliamentary time this sometimes led to no action being taken
or on its being taken only after long delay.

In 1966 consideration was given to whether as a matter of law this House
was bound to follow its earlier decision. After considerable discussion it was
agreed that it was not, and so the announcement to which my noble and
learned friend refers was made. " If the House of Lords is not bound by
" its previous decision, why should we be? " so the argument runs, an argu-
ment that could be advanced in every court of record in the land, but an
argument which ignores the unique character of the House of Lords sitting
judicially. It is a character not possessed by any other court and herein lies
the fallacy in the argument. This House is not bound by any previous decision
to which it may have come. It can, if it wishes, reach a contrary conclusion.
This is so whether or not the House is sitting to discharge its judicial functions.
That is the ground on which those who were parties to the announcement
made in 1966 felt, I think, that it could be made without impropriety. It is
not a ground available to any other court and the fact that this House made
that announcement is consequently no argument which can properly be
advanced to support the view that the Court of Appeal or any other court
has similar liberty of action.

There is one other matter to which I must refer. It is a well and long
established rule that counsel cannot refer to Hansard as an aid to the con-
struction of a statute. What is said by a Minister or by a member sponsoring
a Bill is not a legitimate aid to the interpretation of an Act (Craies
on Statute Law, 7th Edn. pp. 128-129). As Lord Reid said in Beswick v
Beswick [1968] AC 58 at p. 73.

" In construing any Act of Parliament we are seeking the intention
" of Parliament and it is quite true that we must deduce that intention
" from the words of the Act.

" . . . .

" For purely practical reasons we do not permit debates in either
" House to be cited: it would add greatly to the time and expense
" involved in preparing cases involving the construction of a statute if
" counsel were expected to read all the debates in Hansard, and it would
" often be impracticable for counsel to get access to at least the older
" reports of debates in Select Committees of the House of Commons ;
" moreover, in a very large proportion of cases such a search, even if
" practicable, would throw no light on the question before the court."

If it was permissible to refer to Hansard, in every case concerning the
construction of a statute counsel might regard it as necessary to search



13

through the Hansards of all the proceedings in each House to see if in the
course of them anything relevant to the construction had been said. If it
was thought that a particular Hansard had anything relevant in it and the
attention of the court was drawn to it, the court might also think it desirable
to look at the other Hansards. The result might be that attention was
devoted to the interpretation of ministerial and other statements in Parlia-
ment at the expense of consideration of the language in which Parliament
had thought to express its intention.

While, of course, anyone can look at Hansard, I venture to think that it
would be improper for a judge to do so before arriving at his decision and
before this case I have never known that done. It cannot be right that a
judicial decision should be affected by matter which a judge has seen but
to which counsel could not refer and on which counsel had no opportunity
to comment.

For the reasons I have stated I would dismiss this appeal.

Lord Kilbrandon

MY LORDS,

It is a sad paradox that human brutality should be disclosed so plainly
in domestic relationships into which a man and a woman have voluntarily
entered. Recently some enterprising journalist has christened the problem
" battered wives ", as if he had uncovered a modern tendency, a recent
development in wickedness and indeed the learned Master of the Rolls
says that the phrase

" was invented so as to call the attention of the public to an evil. Few
" were aware of it."

In many more humble circles the practice was only too familiar, and to
anyone who has sat as a divorce judge, at any rate, none of the stories told
in the public press can have come as a surprise. They are instances of
what had long been matter of common knowledge. In 1975 the House of
Commons set up a Select Committee to consider, inter alia,

" the extent, nature and causes of the problems of families where there
" is violence between the parties or where children suffer non-accidental
" injury."

These words, it is hardly necessary to point out, are wide enough to include
families in which the parties are unmarried and the children illegitimate. I
did not intend to refer to the Report of the Select Committee further than
to say that I agree with the opinion of my noble and learned friend Lord
Diplock as to the notice which may in general be taken of such reports in
judicial proceedings.

In the following Session a Bill, which became the Domestic Violence and
Matrimonial Proceedings Act 1976, was introduced by a private member
into the House of Commons. It may be, I do not know, that the matters it
dealt with were deemed to be of such urgency that the usual researches,
necessary to anticipate and deal with all continuencies likely to attend
reform of a complicated branch of the law, were omitted or abridged. How-
ever that may be, in the short life-time of the Act the problem now before
your Lordships arising out of one of its provisions has had to be considered
by 16 Lords Justices and Lords of Appeal, of whom 8 have taken one view
of the meaning of the Act and 8 an opposite view.

As regards married couples and their families, sections 3 and 4 make
certain provisions amending and clarifying the Matrimonial Homes Act 1967,
and need not be further referred to. By sections 1 and 2 the scope of the
rights of married persons, on behalf of themselves or their children, to
obtain the protection of the court in the event of molestation, violence, or
unlawful denial of the right of a spouse, arising from status, to access to and
occupation of the matrimonial home, is enlarged. Besides exercising these




14

rights in a matrimonial suit, or on an undertaking that a matrimonial suit
is in preparation, a summary application may be made to any county court
for an injunction containing one or more of the provisions set out in section 1,
and in certain circumstances the court may, under section 2, buttress that
injunction by attaching a power to arrest the party complained of. Such an
application may be made, contrary to the general rule of practice,

" whether or not any other relief is sought in the proceedings."
So far no difficulty arises.

It is, however, notorious, as the terms of reference of the Select Committee
indicate, that the problems of violence, molestation and denial of proper
accommodation are by no means confined to families in which the parties
are married. Unmarried women and illegitimate children are just as much
at risk. It is in my opinion quite plain that the intention of Parliament was
to give them some protection. For that purpose section 1(2) provided
that the subsection conferring power on the county court to grant injunctions
in the case of married persons

" shall apply to a man and a woman who are living with each other in
" the same household as husband and wife as it applies to the parties
" to a marriage and any reference to the matrimonial home shall be
" construed accordingly."

It is unfortunate that this has been described, in popular language, as an
attempt to protect " battered mistresses ". The English language is poor
in this context. " Mistress ", having lost its respectable if not reverential
significance, came to mean a woman installed, in a clandestine way, by some-
one of substance, normally married, for his intermittent sexual enjoyment.
This class of woman, if indeed she still exists, is not dealt with by the 1976
Act at all. The subsection was included for the protection of families-
households in which a man and a woman either do or do not bring up
children—the man and the woman being, for whatever reason, unmarried.
The Act says in so many words that in such a case the woman is to have
a " matrimonial home " in so far as the provisions of sections 1 and 2 of
the Act are concerned, and as regards her home she is to have the same
protections, and the same power to apply to the county court for them,
including an order for arrest, as has her married sister. I do not know a
single English word which will accurately describe the unmarried housewife,
but that is what Parliament is talking about.

Coming to the interpretation of the Act as it applies to the facts of the
instant case, I will begin by saying that I have read in draft the speeches
prepared by my noble and learned friends Lord Salmon and Lord Scarman,
and that 1 entirely agree with them. The difficulty which has given rise
to so much difference of judicial opinion is this. It is plain, as I have
tried to point out, that married persons get nothing out of sections 1 and 2
of the Act except, first, access to the summary powers of any county
court, second, the relaxation of the rule as to " any other relief", and,
third, the supplementary weapon of arrest. No legal rights are conferred,
in the sense of causes of action giving rise to judicial remedies. The benefits
are described, quite fairly, as procedural. If, then, it is said on behalf of
the appellant, no causes of action are made available to married persons,
neither are they to the unmarried. Since unmarried persons did not have the
relevant statutory protection equivalent to that enjoyed by married persons,
namely the right of one to restrain the other from entering the matrimonial
home, even when that other is joint or sole tenant, and they cannot be said
to have acquired it in virtue merely of an enlargement of available
procedures, this application should have been dismissed, since the statute
provides the respondent with no means of overriding the property right of
the other joint tenant. The supposed protection of unmarried women under
this Act accordingly turns out to be largely illusory since it amounts to



15

no more than procedural advantages available to a woman who has the
sole right of occupation, whether as owner or tenant, of what the statute
calls her " matrimonial home ". This, in the social conditions with which
we are all familiar, must be a rare bird indeed.

I can readily appreciate the intellectual force of the appellant's argument.
On the other hand I must decline to hold that Parliament decreed a trifling
and illusory remedy for a known disgraceful mischief, and to hold it in the
interest of the conceptual purity of the law. Leaving that interest aside, the
plain fact is that the 1976 Act has authorised county courts to give one
married person an injunction excluding from the matrimonial home the
other, saying nothing about the property rights of either, and that that
authority applies to a household where the parties are not married to one
another " as it applies " to one where they are. That is sufficient for the
disposal of this case.

In Inland Revenue Commissioners v. Ayrshire Employers Mutual
Insurance Association Ltd. [1946] 1 ALL E.R. 637 it was given as an
adequate ground of decision that " The legislature has plainly missed fire "—
per Lord Macmillan at p. 641. Whether that metaphor leads to a rational
interpretation of statutes may nowadays be doubted, but certainly it would
be an inevitable commentary on a decision in favour of the appellant. The
intention of the legislature is plain from the language used. The fact that
that language also leads to legal difficulties, and that the intention could well
have been expressed in language which did not, should not affect the result.

My Lords, I do not find it necessary to add anything to what has been
said by my noble and learned friends on the subjects of the handling of
precedents by the Court of Appeal, and of judicial reference to the Parlia-
mentary debates. I entirely agree with their opinions.

I would dismiss this appeal.

Lord Salmon

my lords

The Domestic Violence and Matrimonial Proceedings Act 1976 appears
to have been hurried through Parliament to provide urgently needed first aid
for " battered wives ", about whom there had been a great deal of publicity.
They included a lawfully wedded woman living with her husband in their
home and also an unmarried woman, commonly but not very appropriately
referred to as a " common law wife ", living with her paramour in the equiva-
lent of a matrimonial home. I do not consider that there is any ambiguity
about the Act and I have no doubt that it will afford much needed first aid
to many married and unmarried women. I regret that the Act omits
a clause regulating the duration of the aid it affords in relation to the occu-
pancy of the matrimonial home by an unmarried woman. Such a clause
could easily have removed the difficulties which I think may well arise
under the Act in its present form and to which I shall return later.
Section 1 of the Act reads as follows :-

" 1.—(1) Without prejudice to the jurisdiction of the High Court,
" on an application by a party to a marriage a county court shall have
" jurisdiction to grant an injunction containing one or more of the
" following provisions, namely—

" (a) a provision restraining the other party to the marriage from
" molesting the applicant;

" (b) a provision restraining the other party from molesting a child
" living with the applicant;

" (c) a provision excluding the other party from the matrimonial
" home or a part of the matrimonial home or from a specified
" area in which the matrimonial home is included ;




16

" (d) a provision requiring the other party to permit the applicant
" to enter and remain in the matrimonial home or a part of the
" matrimonial home;

" whether or not any other relief is sought in the proceedings.
" (2) Subsection (1) above shall apply to a man and a woman who

" are living with each other in the same household as husband and wife

" as it applies to the parties to a marriage and any reference to the

" matrimonial home shall be construed accordingly."
I have no doubt that the opening words of section 1(1) " without prejudice
" to the jurisdiction of the High Court" refer to two things: firstly to the
jurisdiction of the High Court to grant injunctions restraining violence.
The word " molesting " in section 1(1) (a) and (b) certainly includes acts and
threats of violence. They no doubt cover a multitude of other things which
I will not attempt to enumerate. When an injunction is granted under (a)
or (b). it will. I think almost invariably be in respect of acts or threats of
violence or possibly sometimes in respect of nuisance. In any event, 1
cannot think of anything in respect of which the county court would grant
an injunction under (a) or (b) which the High Court would not also have
jurisdiction to grant.

Secondly, the opening words of section 1(1) in my view, also refer to the
jurisdiction of the High Court under section 1(2) of the Matrimonial Homes
Act 1967 (as amended by sections 3 and 4 of the Act of 1976) (a) to prohibit,
suspend or restrict the exercise by either spouse of the right to occupy the
matrimonial home or (b) to require either spouse to permit the exercise by
the other of that right. A similar jurisdiction is conferred on the county
courts by section 1(1) (c) and (d) of the Act of 1976. It follows therefore
that section XI) effected no change in the substantive law relating to
husbands and wives. All it did was to enable them to obtain the same kind
of redress from the-county court as they could have obtained from the High
Court and (having regard to the closing words of section 1(1)) to obtain it
without seeking any other relief. If the Family Division makes an order
under section 1(2) of the Act of 1967 (as amended) or the county court
makes an order under section XI) (c) or (d) of the Act of 1976 prohibiting
a spouse, say the husband or paramour, who is the freeholder or tenant of the matri
monial home from occupying it and permitting his wife or mistress to do so, that order
whilst it remains in force would be a complete answer to an action in the
Queen's Bench Division by the freeholder or tenant to enforce his proprietary
rights by ejecting his wife so that he may re-enter into possession himself.

In my opinion, it by no means follows that because section 1(1) involves
no alteration in substantive law, section 1(2) does not. The latter subsection
is very short and equally clear.




It has been said that its meaning is as plain as a pikestaff. I agree. If
one were in any doubt about it, it would only be necessary to strike out of
section 1(1) the words "on an application by a party to a marriage" and
substitute the words " on an application by a man or a woman who are living
" with each other in the same household as husband and wife ": and perhaps
in order to tidy up the section also to strike out the words " to the marriage "
in paragraph (a) of section 1.

The whole purpose of the Act was to afford some protection to " battered
" wives ", married or unmarried. And to the unmarried ones in particular.
The married already had the very full protection afforded by the Act of
1967. The unmarried did not. The married gained little from the Act of
1976 save a quicker and cheaper method of obtaining protection and also
the power of arrest attached to an injunction granted under section 2 of the
Act. To my mind, the principal object of section 1(1) (c) and (d) combined
with section 1(2) was to allow the battered so called "common law wife "
safely to occupy the " matrimonial home " for a fairly short period in which to
find other accommodation for herself and her children if she had any.



17

I do not think that a county court judge could properly exclude the paramour
from his home or its environs under section 1(1) (c) unless he had been
guilty of serious molestation likely to expose the so called " common law
wife or her children" to serious danger or intolerable conditions whilst he remained there.
Nor do I think that the county court would or could properly make an order
under section 1(1) (d) unless it was satisfied that the common law wife had
been driven from the home by serious molestation or locked out of the home
without reasonable justification. It also seems unlikely to me that the
county court judge would, save in exceptional cases, make an order under
section 1(1) (d) without also making an order under section 1(1) (c).

In my view, Parliament in passing this Act, was not concerned with the
preservation of proprietary rights but with affording protection to " battered
wives " by giving them the chance of finding fresh accommodation in safety
when the husband or paramour had made life in the matrimonial home in-
tolerable, impossible or dangerous.

More often than not, the man is the tenant or owner of the home. If in
the case of an unmarried couple he is immune under section 1 (2) from the
provisions of section 1 (1) (c) and (d) and under section 2 (2) from the provi-
sions of section 2 (1) (c), what I regard as being the chief purpose of the
Act will be defeated. This is why I do not think that Parliament intended
any wider construction than that which I have already postulated to be put
upon the opening words of section 1(1). The wider construction of the
opening words of section 1 postulates that they are intended to include a
power of the High Court to eject a man's wife or so called " common law
wife " from the matrimonial home, if the husband or paramour is the owner
or tenant of the premises. I reject that construction because as I have
already indicated it would defeat the obvious purpose of the Act. Ample
scope, in my view, is given to the opening words of section I if they are
confined to the meanings I have suggested

The proposition initiated by Bridge L.J. in B. v. B. and adpoted by many
other eminent judges that the wider construction should be put upon those
opening words because in cases in which the so called common law wife
is the tenant or the owner of the home, she will still have the benefit of section
1 (1) (c) and (d) and of section 2 (1) (c) does not appeal to me—firstly because
I think that there are very few women in cases of this kind who are the
tenants or owners of the matrimonial home, and secondly because when they
are, they have no need to rely on the Act of 1976 for protection. They would
be entitled to bring an action for ejectment against the paramour to which
there could be no defence.

To return to the case where the paramour is the tenant or owner of the
home, I am certain that the Act of 1976 was not intended to deprive him
of his proprietary rights in his flat or house but only to interfere for a fairly short
period with his occupation of his home whilst his former mistress had an
opportunity to look for other accommodation. In Cantliff v. Jenkins, Stamp
L.J. asked the very pertinent question " For how long? ". It is a pity that
the Act did not regulate the period in which he could be deprived of occupa-
tion and his former mistress allowed to enjoy it. I could hope that Parliament
will consider amending the Act by specifying such a period or, perhaps better
may, laying down principles upon which its duration may be calculated. In
the meantime the period is entirely in the discretion of a multitude of county
court judges and there being nothing in the statute to guide them in the
exercise of that discretion, it might be exercised with a considerable amount of
discrepancy. I am sure, however, that those exercising the discretion will
understand that to make a final order for a maximum period would probably
convert it into a minimum period. I would hesitantly express the view that
the best course would be to make an order for say a month with liberty for
both parties to apply. Much depends on the circumstances of each case,
but I find it difficult to believe that it could ever be fair, save in most excep-
tional circumstances, to keep a man out of his own flat or house for more
than three months. It must also be remembered that under the Act the former
mistress acquires no proprietary right in the premises in question and there



18

is nothing to prevent the man from selling or letting his own property when-
ever he likes. But this would take a little while and would accordingly
prevent the former mistress from being thrown out without
giving her any breathing space in which to look for suitable accommodation.
And "this, I believe, is the major object which the Act sought to achieve-
first aid but not intensive care for " battered wives ".

I would add a word about cases in which, as here, the premises in question
are held in common. There is no doubt that under the Act a violent man
may be excluded for a limited period from the " matrimonial home ". I
cannot however agree that his exclusion can properly be made to continue
for as long as there is a danger that if he returns he will assault his former
mistress. This might well be for ever. I do not think that the purpose
of the Act is to punish the violent. Property held in common need not be
lived in by both owners: one could buy the other out or the property could
be sold and the proceeds divided between them. In the absence of agree-
ment the matter could be referred to the courts for decision. In the present
case, however, the flat is a council flat and I do not suppose there is any-
thing to sell. I expect that probably the council may bring the joint tenancy
to an end and decide to whom the flat shall be let. Having regard to the
learned county court judge's finding that the appellant who was twice the
respondent's age beat her frequently, on two occasions " used violence of
a horrifying nature ", threatened to kill her and dump her in the river
and alternatively to chop her up with a chopper he kept under the bed and
then put her remains in the deep freeze, I should not be surprised if the
council after terminating the joint tenancy allowed the respondent to remain
in the flat as its sole tenant.

I entirely agree with your Lordships that in appeals in civil cases, the Court
of Appeal is bound by its own previous decisions subject to the three excep-
tions laid down in Young v. Bristol Aeroplane Co. [1944] 1.K.B.718.
Although the balance of authority prior to 1944 supported that rule, there
had been a number of dicta and decisions of the Court of Appeal [alluded
to by Lord Denning MR.] which had rejected it. That is why the appeal
in the Bristol Aeroplane Co. case was heard by Lord Greene M.R. and five
out of the eight Lords Justices who then sat regularly in that court.

Ever since 1944, this rule has been applied by the Court of Appeal
except in the instant case. Your Lordships' House on a number of occasions
[once before and three times after 1944] has confirmed the application of the
rule to decisions of the Court of Appeal, and has thereby greatly strengthened
the rule. In the nature of things however, the point could never come
before your Lordships' House for decision or form part of its ra<tio decidendi.
This House decides every case that comes before it according to the law.
If, as in the instant case, the Court of Appeal decides an appeal contrary to
to one of its previous decisions, this House, much as it may deprecate the
Court of Appeal's departure from the rule, will nevertheless dismiss the
appeal if it comes to the conclusion that the decision appealed against was
right in law.

I am afraid that I disagree with Lord Denning M.R. when he says that
the Court of Appeal is not absolutely bound by its own decisions and may
depart from them just as your Lordships may depart from yours. As my
noble and learned friend Lord Diplock has pointed out, the announcement
made in 1966 by Lord Gardiner L.C. about the future attitudes of this House
towards precedents ended with the words: "This announcement is not
" intended to affect the use of precedents elsewhere than in this House ". I
would also point out that that announcement was made with the unanimous
approval of all the Law Lords: and that, by contrast, the overwhelming
majority of the present Lords Justices have expressed the view that the
principle of stare decisis still prevails and should continue to prevail in the
Court of Appeal. I do not understand how, in these circumstances, it is even
arguable that it does not.

19

I sympathise with the views expressed on this topic by Lord Denning
M.R., but until such time, if ever, as all his colleagues in the Court of
Appeal agree with those views, stare decisis must still hold the field. I
think that this may be no bad thing. There are now as many as seventeen Lords
Justices in the Court of Appeal, and I fear that if stare decisis disappears
from that court there is a real risk that there might be a plethora of
conflicting decisions which would create a state of irremediable confusion
and uncertainty in the law. This would do far more harm than the
occasional unjust result which stare decisis sometimes produces but which
can be remedied by an appeal to your Lordships' House. I recognise, as
Cumming-Bruce L.J. points out, that only those who qualify for legal aid
or the very rich can afford to bring such an appeal. This difficulty could
however be surmounted if when the Court of Appeal gave leave to appeal
from a decision it has felt bound to make by an authority with which it
disagreed, it had a power conferred on it by Parliament to order the appel-
lants and/or the respondents' costs of the appeal to be paid out of public
funds. This would be a very rare occurrence and the consequent expendi-
ture of public funds would be minimal.

I do not agree with the reasons given by the President for departing from
the rule in the Bristol Aeroplane case. A high proportion of the decisions
of the Court of Appeal turns upon the construction of statutes. The fact
that the decision concerns a recent statute, is to my mind, irrelevant. Shaw
L.J.'s decision however is based on the ground that the most exceptional
and appalling facts of the present case were never in the contemplation
of the Court of Appeal in the Bristol Aeroplane case ; and I confess that I
rind the reasons on which he founded his decision very persuasive. I need
not however express any opinion upon that judgment for I agree with my
noble and learned friend Lord Diplock that the exception formulated by
Shaw L.J. is what may be termed a "one off" exception and that it is
difficult to think of any other statute to which it could apply. I therefore
entirely agree with your Lordships that the rule laid down in the Bristol
Aeroplane case binds the Court of Appeal.

I also agree that it has always been a well established and salutary rule
that Hansard can never be referred to by counsel in court and therefore
can never be relied on by the court in construing a statute or for any other
purpose. The reasons for this rule have been lucidly expressed by Lord
Reid in Beswick v. Beswick [1968] AC 58 at p. 73, and also by my noble
and learned friend Lord Dilhorne in his speech in this appeal.

It is now well settled that when legislation follows upon the report of a
Select Committee, as e.g. the Act of 1976 followed upon the report published
in 1975 of the Select Committee of the House of Commons on Violence in
Marriage, it is permissible for the courts, when necessary, to refer to the
report as a guide to the mischief at which the Act was aimed. Even for
this purpose, however, such reports are sometimes uncertain guides. The\
do not by any means always reveal the full mischief which the Act is
intended to remedy. In the present case for example, the Select Committee
devoted only one paragraph to unmarried couples. They stated they had
no real knowledge of this problem and had taken no evidence about it.
This is of little consequence because, in my view, the Act itself makes the
mischief at which it was aimed abundantly plain. It seems to me that
either before or as the Bill passed through Parliament, it became clear to
our legislators that the battered so called " common law wives " were in
dire need of legislative protection. I consider that sections I and 2 of the
Act unambiguously gave them this protection to the extent I have described
earlier in this speech ; and clearly the meaning of these sections cannot be
altered by the report of the Select Committee.

My Lords, for the reasons I have stated, I would overrule B. v. B. and
Cantliff v. Jenkins and dismiss the appeal.




31717 C2




20

Lord Scarman

my lords,

The central question in this appeal is as to the construction of section 1
of the Domestic Violence and Matrimonial Proceedings Act 1976. The
section is as follows: —

" 1. (1) Without prejudice to the jurisdiction of the High Court, on

"an application by a party to a marriage a county court shall have
" jurisdiction to grant an injunction containing one or more of the
" following provisions, namely,—

" (a) a provision restraining the other party to the marriage from

" molesting the applicant;
" (b) a provision restraining the other party from molesting a child

" living with the applicant;

" (c) a provision excluding the other party from the matrimonial
" home or a part of the matrimonial home or from a specified
" area in which the matrimonial home is included ;
" (d) a provision requiring the other party to permit the applicant
" to enter and remain in the matrimonial home or a part of the
" matrimonial home ;
" whether or not any other relief is sought in the proceedings.

"(2) Subsection (1) above shall apply to a man and a woman who
" are living with each other in the same household as husband and
" wife as it applies to the parties to a marriage and any reference to
" the matrimonial home shall be construed accordingly."

A layman could be forgiven for thinking that the section was tailor-made
to enable a county court judge to make the order that was made in this
case. But in three cases reaching the Court of Appeal in the last few
months seven Lords Justices have taken a different view. They found the
section difficult and obscure. In B. v. B. the court (Megaw, Bridge and
Waller L.JJ.) accepted the submission that the provisions of section 1 of
the Act do not alter in any way the substantive law affecting parties' rights
to occupy premises and that, in considering the question whether relief can
be granted under the section, the court must consider the respective rights
and obligations of the parties unaffected by the provisions of the section.
In the result, the court in B. v. B. held that an unmarried woman could not
obtain under the section an order excluding from the home the man with
whom she was living, unless she could show that she had a right by the
law of property to exclusive possession of the premises. In other words,
while she could get relief against molestation, as specified in subsection (1)
(a) and (b), she could not get an order enabling her to occupy the home
under (c) or (d) of the subsection.

In Cantliff v. Jenkins another division in the Court of Appeal followed
this decision.

In the present case a specially constituted five-judge bench of the Court
of Appeal has by a majority (4 to 1) rejected the interpretation put upon
the section by the court in B. v. B. and has held that the full range of relief
set out in subsection (1), i.e. orders containing all or any of the relief set
out in (a), (b), (c) and (d) of the subsection, is available to an unmarried
woman, who can bring herself within subsection 2.

For reasons which I shall briefly outline, I have reached the conclusion
that the case of B. v. B, was wrongly decided. In my view the relief
specified in (a), (b), (c) and (d) of the subsection is available to an unmarried
family partner. I would, therefore, dismiss the appeal.

Jennifer Therese Davis, the respondent in this appeal, is 21 years old and
unmarried. She has a daughter who is now nearly 3 years old. The father
of her child is Nehemiah Johnson, the appellant. Miss Davis and the
appellant lived together in the same household as man and wife for some



21

years. In 1977 the local council granted them the tenancy of a flat, 13 Nisbet
House, Hackney. They were joint tenants. Because of the appellant's
violence towards her, Miss Davis left home with her daughter on the 18th
September 1977. She went to the Chiswick refuge for battered wives
maintained by Mrs. Pizzey. On the 11th October she applied under section 1
of the Act to the Brentford County Court for an order restraining the
appellant from assaulting or molesting her, requiring him to vacate the flat,
and restraining him from entering it or coming within half a mile of it.
On the 18th October the deputy circuit judge granted her an injunction
restraining the appellant from assaulting or molesting her or their daughter
and requiring him forthwith to vacate the flat and not to return. The judge,
being satisfied that the appellant had caused Miss Davis actual bodily harm
and being of the opinion that he was likely to do so again, attached, pursuant
to section 2 of the Act, a power of arrest to the injunction.

The judge found that the violence and threats of violence, to which Miss
Davis had been subjected, were of a horrifying nature. He thought that
there was a real risk of further violence in the future and he had regard to
the uncomfortable and overcrowded living conditions at the refuge to which
she had fled when she left the flat.

This was an order entirely appropriate to the circumstances of the case.
More particularly, the exclusion of the appellant from the flat and the
prohibition upon his return were necessary to protect Miss Davis and her
child in their own home. The only question, therefore, is whether the judge
had jurisdiction to include in the injunction provisions excluding the appellant
from the flat and prohibiting his return.

The Act is a short one, its substance being contained in four sections.
Section 1 enables the county court to grant the injunctive relief specified in
subsection (1), irrespective of whether the applicant is married or
unmarried. Section 2 enables a court which grants an injunction in matri-
monial proceedings or under section 1 to add to it in certain circumstances
a power of arrest. Sections 3 and 4 amend the Matrimonial Homes Act
1967 so as to eliminate two weaknesses in that Act revealed by recent
judicial decisions. Section 5 declares the short title, commencement and
extent of the Act. That is all there is to it.

Section 1 consists of two subsections. Subsection (1) enables a party to a
marriage to make application to a county court. It is without prejudice to
the jurisdiction of the High Court and it empowers a county court (any
county court, whether or not invested with divorce jurisdiction) to grant an
injunction " whether or not any other relief is sought ". Clearly the sub-
section provides a new remedy additional to, but not in substitution for,
what already exists in the law.

Subsection (2) enables an unmarried woman (or man) who is living with
a man (or woman) in the same household as husband and wife to apply to
the county court under subsection (1) and expressly provides that reference
in subsection (1) to the matrimonial home shall be construed as a reference
to the household in which they are living together. This reference indicates
to my mind that those provisions of subsection (1), which make available to
married people an injunction excluding the other party from the matrimonial
home and an injunction requiring the other party to permit the applicant
to enter and remain in the matrimonial home, are intended to be available
also to unmarried partners.

The availability of paragraphs (c) and (d) of subsection (1) to unmarried
partners without any express restriction to those who have a property
right in the house has an important bearing on the answer to the question
which I consider to be crucial to a correct understanding of the scope of the
section ; i.e. what is the mischief for which Parliament has provided the
remedies specified in subsection (1)? It suggests strongly that the remedies
are intended to protect people, not property: for it is highly unlikely that
Parliament could have intended by the sidewind of subsection (2) to have






22

introduced radical changes into the law of property. Nor is it necessary
so to construe the section. The personal rights of an unmarried woman
living with a man in the same household are very real. She has his licence
to be in the home, a right which in appropriate cases the courts can and
will protect: see Winter Garden Theatre (London) Ltd. v. Millenium
Productions Ltd. [1948] A.C. 173, per Lord Simon at pp. 188-191: Simons
v. Evans [1972] 1 Ch. 359 per Lord Denning M.R. at p. 367 and Tanner v.
Tanner [1975] 3 All ER 776. She has also her fundamental right to the
integrity and safety of her person. And the children living in the same
household enjoy the same rights.

Bearing in mind the existence of these rights and the extent to which they
are endangered in the event of family breakdown, I conclude that the mischief
against which Parliament has legislated by section 1 of the Act may be
described in these terms: —conduct by a family partner which puts at risk
the security, or sense of security, of the other partner in the home. Physical
violence, or the threat of it, is clearly within the mischief. But there is more
to it than that. Homelessness can be as great a threat as physical violence
to the security of a woman (or man) and her children. Eviction—actual,
attempted or threatened—is, therefore, within the mischief: likewise, conduct
which makes it impossible or intolerable, as in the present case, for the other
partner, or the children, to remain at home.

Where, in my opinion, the seven Lords Justices fell into error, is in their
inference that because the section is not intended to give unmarried family
partners rights which they do not already enjoy under existing property law
it cannot be construed as conferring upon the county court the power to
restrict or suspend the right of possession of the partner who does have
thai right under the property law or to confer for a period a right of occu-
pancy which overrides his right of possession. I find nothing illogical or
surprising in Parliament legislating to over-ride a property right, if it be
thought to be socially necessary. If in the result a partner with no property
right who obtains an injunction under paragraph (c) or (d) thereby obtains
for the period of the injunction a right of occupation, so be it. It is no
more than the continuance by court order of a right which previously she
had by consent: and it will endure only for so long as the county court
thinks necessary. Moreover, the restriction or suspension for a lime of
properly rights is a familiar aspect of much of our social legislation: the
Rent Acts are a striking example. So far from being surprised, I would
expect Parliament, when dealing with the mischief of domestic violence, to
legislate in such a way that property rights would not be allowed to under-
mine or diminish the protection being afforded. Accordingly i am unmoved
by the arguments which influenced the Court of Appeal in B. v. B. and
Cantliff v. Jenkins. Nor do I find it surprising that this jurisdiction was
given to the county court but not the High Court. The relief has to be
available immediately and cheaply from a local and easily accessible court.
Nor am 1 dismayed by the point that the section, while doing no more for
married women than strengthen remedies for existing rights, confers upon an
unmarried woman protection in her home including a right of occupation
which can for a period over-ride the property rights of her family partner.

For these reasons, my conclusion is that section 1 of the Act is concerned
to protect not property but human life and limb. But, while the section
is not intended to confer, and does not confer upon an unmarried woman
property rights in the home, it does enable the county court to suspend or
restrict her family partner's property right to possession and to preserve
to her a right of occupancy (which owes its origin to her being in the home
as his consort and with his consent) for as long as may be thought by the
court to be necessary to secure the protection of herself and the children.

How, then does the section fit into the law? First, the purpose of the
section is not to create rights but to strengthen remedies. Subsection (2)
does, however, confer upon the unmarried woman with no property in the
home a new right. Though enjoying no property right to possession of the
family home, she can apply to the county court for an order restricting or



23

suspending for a time her family partner's right to possession of the premises
and conferring upon her a limited right of occupancy. In most cases the
period of suspension or restriction of his right and of her occupancy will'
prove, I expect, to be brief. But in some cases this period may be a lengthy
one. The continuance of the order will, however, be a matter for the dis-
cretion of the county court judge to be decided in the light of the circum-
stances of the particular case.

Secondly, the section is concerned to regulate relations between the two
family partners. It does not, for instance, prevent the property owner from
disposing of his property. It does not confer upon an unmarried woman
any right of occupation of the family home comparable with that which
a married woman has and can protect against all the world under the
Matrimonial Homes Act 1967.

Thirdly, and most importanly, the grant of the order is in the discretion
of the county court judge. It is for him to decide whether, and for how
long, it is necessary for the protection of the applicant or her child. Normally
he will make the order " until further order ", each party having the right
to apply to the court for its discharge or modification. The remedy is avail-
able to deal with an emergency ; it is, as my noble and learned friend, Lord
Salmon has said, a species of first aid. The order must be discontinued
as soon as it is clear, upon the application of either or both family partners,
that it is no longer needed.

For these reasons I would dismiss the appeal. I have had the advantage
of reading in draft the speeches of my noble and learned friends, Lord
Diplock and Viscount Dilhorne. I agree with what my Lord, Lord Diplock,
has said on the principle of " stare decisis " in the Court of Appeal. I also
agree with what my Lord, Viscount Dilhorne, has said on the use of
Parliamentary material in the interpretation of statutes, and would wish to
add only a few observations of my own.

There are two good reasons why the courts should refuse to have regard
to what is said in Parliament or by Ministers as aids to the interpretation of a
statute. First, such material is an unreliable guide to the meaning of what
is enacted. It promotes confusion, not clarity. The cut and thrust of debate
and the pressures of executive responsibility, essential features of open and
responsible government, are not always conducive to a clear and unbiased
explanation of the meaning of statutory language. And the volume of
Parliamentary and ministerial utterances can confuse by its very size. Sec-
ondly, counsel are not permitted to refer to Hansard in argument. So long
as this rule is maintained by Parliament (it is not the creation of the judges),
it must be wrong for the judge to make any judicial use of proceedings
in Parliament for the purpose of interpreting statutes.

In Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffen-
burg A.G. [1975] AC 591 this House clarified the law on the use by the
courts of " travaux preparatoires ". Reports such as are prepared by the
Law Commission, by Royal Commissions, law reform bodies and Select
Committees of either House which lead to legislation may be read by the
courts to identify the mischief, including the weaknesses in the law, which the
legislation is intended to remedy or reduce. The difficulty, however, remains
that one cannot always be sure, without reference to proceedings in Parlia-
ment which is prohibited, that Parliament has assessed the mischief or
understood the law in the same way as the reporting body. It may be that,
since membership of the European Communities has introduced into our
law a style of legislation (regulations having direct effect) which by means
of the lengthy recital (or preamble) identifies material to which resort may
be had in construing its provisions, Parliament will consider doing likewise
in statutes where it would be appropriate, e.g. those based on a report by
the Law Commission, a Royal Commission, a departmental committee, or
other law reform body.

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