Title: English Legal Systems, Method & Skills

 

 

 

Case: Yemshaw v London borough of Hounslow [2011] UKSC 3

 

1.The parties

 

In Yemshaw v London Borough of Hounslow,[1] during the Supreme Court proceedings Yemshaw was the appellant while London Borough of Hounslow was the respondent.

 

2.The barristers acting for the appellant and the respondent

 

The barristers acting for the appellant were Nathalie Lieven QC and Martin Hodgson. Richard Drabble QC and Matthew Feldman were the barristers acting for the respondent (Solicitorsjournal.com, 2016).

 

3.The legal issue for determination

 

The legal issue for determination in this case was the meaning of the word ‘’violence’’ within the meaning of section 117(1) of the housing Act.[2] In particular, the Court of supreme Court was concerned with finding out if the meaning of the term ‘violence’ is limited to the natural meaning of the word whereby elements of physical contact must be present or it extends to other forms violent demeanors (Court, 2016).

 

4.Reason for the Council’s finding that Mrs Yemshaw was not homeless

 

The reason why Hounslow London Borough Council decided that Mrs Yemshaw was not homeless even with the knowledge that she had left her matrimonial home was because in interpreting section 198 of the Act, ‘‘violence’’ means actual physical violence where physical contact is involved. According to the Council, violence does not on its own include threats of violence. Neither does it includes acts and gestures that cause fear of physical violence on others. As per the facts of this case, Mrs. Yemshaw had left her matrimonial home with her children’s with her on fear of violence. She alleged that her husband was no longer in love with her and had enough reasons to suspect that he was unfaithful to her. She also claimed that her husband behavior towards her was frightening and caused her emotional and psychological distress. It is noted that in her allegations, she never complained having suffered any physical violence.  Considering the fact that the Housing Act stipulates that a person is deemed homeless if he or she cannot continue enjoying the accommodation of a premises lawfully entitled to him or her by law,[3] and that that a person will not be treated as having accommodation unless it is shown that nothing would reasonably prevent him or her to continue occupying the premises,[4] the Council seems to have assumed that since Mrs. Yemshaw had not experienced any form of physical violence it was unreasonable for her to abandon her matrimonial home.

 

Additionally, the Act provides that a person will not be treated as having accommodation unless it is shown that nothing would reasonably prevent him or her to continue occupying the premises.  Basing its arguments on the above provisions, the Council held that the appellant could not be deemed as homeless.  The Council was of the view that it was reasonable for Mrs.Yemshaw to continue occupying her matrimonial home. The Council argued that Mrs.Yemshaw husband’s behavior was such that, if she went back home, it would be most likely that the husband would not have subjected her to actual physical violence. 

 

5.Why the Court of appeal was bound by the earlier decision in Danesh v Kensington and Chelsea Royal London Borough Council?

 

Lady Hale expressed that the Court of Appeal was bound by the decision in the above case where it was held violence was limited to physical contact.  This is because when a determination on a point of law has been made by a superior Court all other decisions in cases of a similar nature should stick to it unless the principle is overruled. Stare decisis (legal precedent) is key in the practice of the law as it ensures that the court outcomes are predictable, consistent and fair (Roszkowski, 1989). The commission is chaired by one.

 

The precedent that must be followed is referred to as binding or mandatory precedent. Under the doctrine of stare decisis, lower Courts are expected to follow findings of the law that has been made by the higher Courts. Precedent is not binding to lower Courts only. The doctrine of stare decisis requires that whenever a point of law has been decided in a certain case, other cases with similar facts should follow the established path (Bast, Hawkins and Bast, 2002). For instance, in Donoghue v Stevenson,[5] the house of Lords found that the ultimate consumer was owed a duty of care by the manufacture. Consequently, the Court in Grant v Australian Knitting Mills[6] was bound by the holding in Donoghue.

 

6.The meaning of the term consolidated.

 

When a collection of laws addressing the same issues are compiled together, the resulting legislation is referred to as a consolidated legislation. Having stated that, when Lady Hale referred to the 1977 Act as being consolidated with other housing registrations, she meant that the content of other housing legislations that existed before the consolidation were now under a single legislation.laws are consolidated for the purposes drawing  together different enactments in a certain field of law into a single Act. The effect of consolidating laws is that different provisions of the Act are replaced(Lawcom.gov.uk, n.d.).

 

7.A brief explanation of the Law Commission and its functions.

 

The law commission is a body created by an Act of Parliament. It was established through the 1965 Law Commission Act. The quorum of the Commission is made up of five commissioners and one of the Commissioners chairs the. The requirement is that the chair of the commission should either be a high Court or a Court of appeal judge. The other four commissioners may be barristers, judges, teachers of law or solicitors. The law commission is mandated with reviewing, codifying and consolidating the law whenever necessary. The commission is also tasked with reviewing proposed reforms for consolidation. In conducting its role, the commission is required to consult with interested parties so as to offer guidance to the government for reforms (Arden, n.d.).

 

8.A brief explanation of what is meant by “mischief” in the context of the interpretation of a statute.

 

Interpretation of statutes is governed by a number of rule and mischief rule is one of them. In the context of statute interpretation, the term mischief basically means the problem that the drafters of the statute intended to solve by drafting the statute. Therefore, the primary reason for the rule is to establish the mischief or the defect the statute concerned has purposed to remedy. Thus, in interpreting a statute, judges will tend to apply the statute while ensuring that the results will be in accordance with the mischief that the statute wanted to solve.  In most cases where the mischief rule is applied, judges essentially consider what part of the law is not covered and was meant to be covered by the law making body (Kafaltiya, 2008).

 

9.A summary of the factors influencing Lady Hale’s view of the meaning of the word “violence”

 

From the onset, Lady Hale’s understanding of the word violence was greatly influenced by the ‘developments’ in the definition of the word violence from a multiple of sources. She confined herself to authorities from credible sources such as the dictionaries and their subsequent revisions.  For example, she referred to the meaning given in the Oxford dictionary whereby she agreed that physical violence is the first of the meaning of the word violence given. Nonetheless, she disagreed with the idea that the above meaning is the only natural meaning of the word.[7] To support her view, she showed how subsequent editions of the Oxford dictionary included other forms of violence that are not physical. In concluding her views on the definition given by the dictionary she expressed that the word violence can refer to a variety of behaviors that do not necessarily require physical contact. Lady hale was also influenced by the definition of the word violence given in the General Recommendation 19 which was also adopted by the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). The recommendation included acts that cause mental harm, threats, coercion and other deprivations of liberty in the definition of violence. In summary, Lady Hale was influenced by different definitions of the word violence by different bodies. As depicted from most of the definition, there seems to be a consensus that violence need not to involve physical contact.

 

10.An explain how Lady Hale and Lord Rodger used a purposive approach to reach their decisions.

 

Purposivism or purposive approach is a method used by judges and magistrates to interpret sections and article of legal instruments such as statutes and the constitution.  The interpretation is done in accordance with the purpose for which the instrument was enacted. In Yemshaw, Lady Hale took a purposive approach and Lord Rodger agreed with her. This is evident where Lady Hale expressed that the purpose of the Housing Act would be achieved if ‘domestic violence’ was understood in the same terms with the 2009 practice direction on residence and contact orders where it was said that violence includes threatening or intimidating behavior. It was also said that abuses which may directly or indirectly lead to the risk of harm qualify to be construed as violence. This way a purposive approach was taken by the judges.

 

11.What was the decision of the Supreme Court in this case and what was the effect of the decision on the appellant and the respondent?

 

The decision of the Supreme Court was that violence is not limited to physical violence. The Court acknowledged that the definition of the term violence had expended over time. The Court particularly decided that the term violence was to be interpreted in a manner that covered domestic violence. The Court further ruled that the approach in Danesh v Kensington and Chelsea Royal London Borough Council[8] did not render threats redundant as far as violence is concern. All that put into consideration, the Supreme Court held that domestic violence, provided for under section 177(1) of the Act includes physical violence, threatening or intimidating behavior and any other form of abuse which, directly or indirectly, may give rise to the risk of harm (Familylawweek.co.uk, n.d.).   The Court therefore unanimously allowed the appeal and referred to local housing authority.

 

This Supreme Court holding had a positive effect on the appellant in that she was given another chance to be heard under the new nonrestrictive interpretation of section 177(1) of the Act. On the other hand, the holding left the respondent at a risk of being declared violent in the way he treated the appellant now that the interpretation of the word violence covered a wind range of behaviors.

 

12(A). How did the Supreme Court decision affect the decision made by the Court of Appeal in this case?

 

It is important to note that the Court of Appeal dismissed the appellant appeal on grounds that Danesh had not been decided through lack of care (per incuriam) and hence the meaning of the word domestic violence had not undergone any change since the decision in that case. Departing from the above approach, the Supreme Court decision in this case dismissed the argument advanced in the Court of appeal. Hence, the effect of the Supreme Court’s decision to the one made in by the appellate Court was expanding the definition of the term domestic violence.

 

(B)The effect of the decision of the Supreme Court in this case on the Court of Appeal’s decision in Danesh? 

 

In Danesh, the appellate Court argued that “violence” involved some elements of physical contact and hence threats of violence or any other acts that cause fear of physical violence do not amount to violence. The effect of the Supreme Court decision in Yemshaw to the earlier one in Danesh was that the position in Danesh was overruled. The Court departed from a more restrictive definition of the word violence whereby the notion that violence must involve some elements physical contact was rejected.

 

  

 

Bibliography

Bast, C., Hawkins, M. and Bast, C. (2002). Foundations of legal research and writing. Albany, NY: West/Thomson Learning.

Arden, M. (n.d.). Common law and modern society.ss

Kafaltiya, A. (2008). Interpretation of statutes. Delhi: Universal Law Pub. Co.

Court, T. (2016). Yemshaw (Appellant) v London Borough of Hounslow (Respondent) - The Supreme Court. [online] SupremeCourt.uk. Available at: https://www.supremeCourt.uk/cases/uksc-2010-0060.html [Accessed 29 Feb. 2016].

Solicitorsjournal.com, (2016). YEMSHAW v HOUNSLOW COUNCIL | Solicitors Journal. [online] Available at: http://www.solicitorsjournal.com/case-reports/yemshaw-v-hounslow-Council[Accessed 29 Feb. 2016].

Duxbury, N. (2013). Elements of legislation. Cambridge: Cambridge University Press.

Shah, J. (2011). Duncan Lewis: An analysis of the Supreme Court decision on domestic violence in Yemshaw v London Borough of Hounslow [2011] and the implications of the ruling (28 March 2011). [online] Duncanlewis.co.uk. Available at: http://www.duncanlewis.co.uk/childcare_news/An_analysis_of_the_Supreme_Court_decision_on_domestic_violence_in_Yemshaw_v_London_Borough_of_Hounslow_%5B2011%5D_and_the_implications_of_the_ruling_%2828_March_2011%29.html [Accessed 29 Feb. 2016].

BURROWS, A. S. (2013). English private law.

WELSTEAD, M., & EDWARDS, S. S. M. (2013). Family law.

GREAT BRITAIN. (2011). Changes to housing benefit announced in the June 2010 budget: second report of 2010-11. Vol. 1, Vol. 1. London, Stationery Office.

Lawcom.gov.uk, (n.d.). Consolidation | Law Commission. [online] Available at: http://www.lawcom.gov.uk/consolidation/ [Accessed 1 Mar. 2016].

ROSZKOWSKI, M. E. (1989). Business law: principles, cases, and policy. Glenview, Ill, Scott, Foresman.

Familylawweek.co.uk, (n.d.). Family Law Week: Supreme Court clarifies 'domestic violence' in local authorities' homelessness duties. [online] Available at: http://www.familylawweek.co.uk/site.aspx?i=ed79160 [Accessed 1 Mar. 2016].

 

 

 

 

 

 

 



[1] [2011] UKSC 3

[2] Housing Act 1996

[3] section 175(1)

[4] section 175(3)

[5] [1932] AC 562

[6] [1936] AC 85

[7] Lady Hale in para 19 of the judgement.

[8] [2006] EWCA Civ 104 [2007] 1 WLR 69

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