Davis (A.P.) (Respondent) v Johnson (A.P.) (Appellant)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Viscount Dilhorne,Lord Kilbrandon,Lord Salmon,Lord Scarman |
| Judgment Date | 09 March 1978 |
| Judgment citation (vLex) | [1978] UKHL J0309-1 |
| Court | House of Lords |
| Date | 09 March 1978 |
[1978] UKHL J0309-1
Lord Diplock
Viscount Dilhorne
Lord Kilbrandon
Lord Salmon
Lord Scarman
House of Lords
Upon Report from the Appellate Committee to whom was referred the Cause Davis (Assisted Person) against Johnson (Assisted Person), That the Committee had heard Counsel as well on Monday the 16th as on Tuesday the 17th days of January last, upon the Petition and Appeal of Nehemiah Johnson of 13 Nisbet House, Hackney, London E.9, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 28th day of November 1977, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered and that the Petitioner might have the relief prayed for in the Appeal or such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Jennifer Therese Davis lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 28th day of November 1977, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs incurred by the Appellant and by the Respondent in respect of the said Appeal be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974, the amount thereof to be certified by the Clerk of the Parliaments.
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 indistinguishable, 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 to 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, of 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 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. I 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] K.B. 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 [1943] A.C. 399 at 405.) Although Prior to 1944 there had 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 Q.B. 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.
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