Davis v Johnson

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,…