Pragmatism and Theory in English Law - College of Social Sciences ...

84 The Strengths of the Pragmatic Tradition
quite unresolved; in particular, it gave the court no guidance
as to what was to happen if a co-habitant was ejected
from a home which actually belonged to him. How long was
he to remain ejected? Was the Act designed in effect to
enable the court to deprive him of his property for ever? Or
for as long as his erstwhile co-habitant remained in occupation
of the property? These difficulties led some of the
judges in the Court of Appeal to hold that the Act was
designed purely for procedural purposes, and that no
injunction could be granted to eject a violent co-habitant
from property which belonged to him. 72 This conclusion
was justified by a nice piece of intellectual reasoning: the
section dealing with spouses was only designed to have procedural
effects, because spouses already had the protection
of the matrimonial property legislation; and it was therefore
argued that the section dealing with co-habitants, which
simply extended the courts' powers to deal with spouses,
must also be confined to procedural consequences. But the
argument was wholly contrary to common sense, because if
valid it would have meant that the courts could only protect
a co-habitant if she was actaully the owner of the premises
in which she was being subjected to the violence in question.
This would have been such an unusual case that the
statute would have been quite emasculated; and although
the courts are occasionally driven to such constructions
where an Act simply gives them no alternative, and Parliament
can then be left to put matters right, here actual violence
was being done or threatened, and it hardly seemed an
appropriate response therefore to leave the matter to statutory
amendment. In the result the House of Lords overturned
the limited construction of the Act which the Court
72 See B. v. B. [19781 Fam. 26; Cantliffv. Jenkins [1978] Fam. 47.