Anisminic Ltd v Foreign Compensation Commission: HL 17 Dec 1968

There are no degrees of nullity

The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a nullity. The Commission replied that the courts were precluded from considering the question by section 4(4) of the 1950 Act which provided: ‘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.’ The respondent said these were plain words with one meaning: ‘Here is a determination which is apparently valid: there is nothing on the face of the document to case any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute.’
Held: This was rejected. All forms of public law challenge to a decision have the same effect, to render it a nullity. The decision of the Commission was wrong in law, and therefore a nullity, rather than a ‘determination’ within the protection of the ouster clause. The House made obsolete the historic distinction between errors of law on the face of the record and other errors of law.
Lord Reid considered that the term ‘jurisdiction’ had both a wide and a narrow sense: ‘I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But 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.’ He mentioned a variety of errors, including addressing the wrong question. ‘But, if [the tribunal] decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.’
A statutory provision, which provided that any ‘determination by the commission’ in question ‘shall not be called in question in any court of law’, did not prevent the court from deciding whether a purported decision of the commission was a nullity, on the ground that the commission had misconstrued a provision defining their jurisdiction.
‘In the present case the commission could be controlled if being ‘satisfied’ of the matters referred to ‘them’ they failed to obey the mandatory direction of the Order in Council. But in deciding whether or not they were satisfied of the matters they were working within the confines of their denoted delegated and remitted jurisdiction. In the exercise of it very many questions of construction were inevitably bound to arise. At no time was the commission more centrally within their jurisdiction than when they were grappling with those problems. If anyone could assert that in reaching honest conclusions in regard to the questions of construction they made any error, such error would, in my view, be an error while acting within their jurisdiction and while acting in the discharge of their function within it.’

Lord Reid, Lord Pearce, Lord Wilberforce
[1969] 2 AC 147, [1968] UKHL 6, [1969] 1 All ER 208, [1969] 2 WLR 163
Foreign Compensation Act 1950 4(4), The Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1959
England and Wales
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Updated: 09 November 2021; Ref: scu.187058