In Craig v Kanssen [1943] 1 KB 256 it was held that a person who is affected by an order which can properly be described as a nullity, is entitled ex debito justitiae to have it set aside.
Summary:
A void order / nullity arises from a “fundamental defect to proceedings”, in this case failure to serve process when service is required, or a “without jurisdiction / ultra vires act by a judicial office holder or public official.
“Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it has never been adopted in this country”
In concluding the judgment Greene M.R said:
“In the present case, as appears from the affidavit of service, the summons was not sent to the address for service of the defendant, so the rule was not complied with and the alleged service mentioned in the affidavit was no service at all. It was clearly a mistake and there can be no suggestion of bad faith, but there was no warrant or justification in the Rules of Court for obtaining the order of January I8, 1940, in such circumstances. That order is a nullity, and it must be set aside“.
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Craig v Kanssen [1943] 1 KB 256 – The judgment (PDF view only)
Further reading:
In Anisminic Ltd v Foreign Compensation Commission [1969] the House of Lords established the “collateral fact doctrine” means essentially that error of law by a public body renders the decision a nullity.
In Firman v Ellis [1978] 3 WLR 1 Denning L.J differentiated beteen a “Void or voidable” order:
“This raises a nice question as to the status of the order of Mr. Registrar Morris Jones on July 11, 1973, when he gave leave to amend and join the Smiths as defendants. Was it a nullity and void ab initio? For in that case everything that followed from it was also a nullity and void: and no action had been ” commenced ” against the Smiths. Or was it good when it was made and only voidable? For in that case everything that followed was good until it was set aside: and an action would have been .” com- menced” against the Smiths and then dismissed by Rees J. in a “final”
Insolvency proceedings? Learn about going behind a judgment in bankruptcy or any insolvency proceedings. The doctrine of no res judicata enables the litigant to have more than one bite at the cherry in cases where grounds are made out to challenge the underlying debt, even if that debt is underpinned by a judgment.
Intelligence UK International’s pièce de résistance guide for litigants seeking to establish a motion to set aside an order for fraud, miscarriage of justice or manifest mistake.
