Davis v Johnson

Under section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976, a county court may protect an unmarried family partner by temporarily excluding the other partner from their shared home or preserving the applicant’s occupation. The jurisdiction may override the other partner’s right to possession, but it creates no proprietary interest and lasts only while protection is necessary.

The Court of Appeal remains bound by its own civil decisions, subject only to the three exceptions stated in Young v Bristol Aeroplane Co Ltd. Parliamentary debates cannot be used to construe legislation. A published law reform report may identify the mischief addressed, but cannot determine the meaning of the enacted words.

The respondent and appellant were an unmarried couple and joint tenants of a council flat. The respondent fled with their child after suffering grave violence and obtained county court injunctions restraining molestation and excluding the appellant from the flat. The exclusion order was withdrawn following Cantliff v Jenkins.

By a four-to-one majority, a five-member Court of Appeal restored the exclusion order. Three members considered that the court was not bound by its earlier decisions in B v B and Cantliff v Jenkins.

The House considered whether section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 empowered a county court to override an unmarried partner’s possessory rights, and whether the Court of Appeal could depart from its own indistinguishable civil decisions.

1. Disposition. The House unanimously dismissed the appeal. Viscount Dilhorne, Lord Kilbrandon, Lord Salmon and Lord Scarman construed section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 as authorising the exclusion order. Lord Diplock reached the same disposition on the narrower ground that the respondent’s joint tenancy gave her an existing right to peaceful occupation which could be protected by an ancillary exclusion order.
2. Unmarried family partners. Per Viscount Dilhorne, Lord Kilbrandon, Lord Salmon and Lord Scarman, section 1(2) makes the full range of remedies in section 1(1) available to a man and woman living together in the same household as husband and wife. The court may therefore restrict or suspend one partner’s right to possession and preserve the other partner’s occupation, even where the applicant has no proprietary right. The contrary construction in B v B and Cantliff v Jenkins was overruled.
3. Nature and duration of relief. Per Lord Scarman, the section protects people rather than property. It addresses violence, threatened violence, eviction and conduct making continued occupation impossible or intolerable. An order regulates relations between the partners. It creates no proprietary interest, does not prevent disposal of the property and endures only for as long as the county court considers protection necessary. Lord Salmon likewise characterised the jurisdiction as emergency first aid and emphasised that exclusion should ordinarily be temporary. Viscount Dilhorne treated the duration and terms as matters for judicial discretion.
4. Court of Appeal precedent. Per Lord Diplock, with the agreement of the other Law Lords, the Court of Appeal in civil matters is bound by its own decisions, subject to the three exceptions in Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718. A larger constitution has no greater authority than an ordinary division. Neither perceived error, hardship nor the House of Lords’ practice of departing from its own decisions creates an additional exception.
5. Interpretative materials. Viscount Dilhorne, Lord Diplock, Lord Salmon and Lord Scarman rejected judicial reliance on Hansard as an aid to statutory construction. Published reports preceding legislation may be consulted to identify the mischief, but not to force the enacted words into conformity with the report’s recommended remedy.

1. House of Lords: The appeal was dismissed unanimously. The Court of Appeal’s order was upheld, although Lord Diplock differed from the majority on the construction of section 1.
2. Court of Appeal: A five-member court, by four to one on construction, held that section 1 authorised the exclusion order. Three members also held that the court could depart from B v B and Cantliff v Jenkins; two considered themselves bound by those decisions.
3. Brentford County Court: The court initially restrained molestation and excluded the appellant from the flat. Following Cantliff v Jenkins, the exclusion injunction was withdrawn, prompting the appeal.