Anisminic Ltd v Foreign Compensation Commission
[1969] 2 AC 147
Ratio Decidendi
Any error of law by a public body or tribunal renders its decision a nullity. There is no meaningful distinction between 'jurisdictional' and 'non-jurisdictional' errors of law for the purpose of judicial review. An ouster clause that purports to insulate the body's 'determination' from challenge does not protect a purported determination that is in fact a nullity โ because there is no determination to protect. The decision is the foundation of modern judicial review and the basis on which English courts subject almost every error of law to corrective review notwithstanding statutory attempts to exclude.
Ffeithiau
Anisminic was a British company whose property in Egypt was sequestrated by the Egyptian government during the 1956 Suez crisis. Under the Foreign Compensation Act 1950, the Foreign Compensation Commission distributed sums received from foreign governments to UK claimants. The Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1962 set out who could qualify; among the requirements, claimants and their 'successors in title' had to be British. Anisminic had sold the sequestrated assets to an Egyptian organisation. The Commission held this meant Anisminic's 'successor in title' was not British and rejected the claim. The Foreign Compensation Act 1950 s.4(4) provided that 'The determination by the commission of any application made to them under this Act shall not be called in question in any court of law' โ a strong ouster clause.
Crynodeb o'r dyfarniad
The House of Lords (Lord Reid, Lord Pearce, Lord Wilberforce, with Lord Morris and Lord Pearson dissenting) held that the Commission had misconstrued the relevant order. The 'successor in title' requirement only applied where the original owner died or otherwise transferred under the order's contemplation โ it did not impose a continuing nationality requirement on a sale of the sequestrated asset. That misconstruction was an error of law. Crucially, the House held that an error of law that affected the Commission's approach to the question put before it took the Commission outside its jurisdiction. The 'determination' was therefore not a determination at all โ it was a nullity. The ouster clause in s.4(4) only protected genuine determinations; it could not protect a purported determination that was void. Lord Reid's speech effectively swept away the older 'jurisdictional fact' doctrine and made all errors of law reviewable. Lord Diplock later confirmed in O'Reilly v Mackman [1983] 2 AC 237 that Anisminic 'rendered obsolete' the distinction between jurisdictional and non-jurisdictional errors.
Dyfyniadau allweddol
"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense."
โ Lord Reid
"There are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account."
โ Lord Reid
"The word 'determination' in s.4(4) means a real determination, not a purported determination. It does not protect a purported determination which is a nullity."
โ Lord Pearce
Triniaeth ddilynol
The single most important judicial-review case of the 20th century. It abolished the meaningful distinction between jurisdictional and non-jurisdictional errors of law and made nearly all errors of law reviewable on judicial review.
Confirmed by Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237 and Re Racal Communications [1981] AC 374; reaffirmed at the highest level in R (Cart) v Upper Tribunal [2011] UKSC 28 and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 โ the latter explicitly holding that even a clear ouster clause cannot exclude review for errors of law.
Has been the basis for setting aside countless decisions by ministers, tribunals, regulators, professional disciplinary panels, the Parole Board, and other public bodies where they have misconstrued the law.
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