Anisminic Ltd v Foreign Compensation Commission [1969]

The “collateral fact doctrine” means essentially that error of law by a public body renders the decision a nullity

In Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147 the House of Lords established the “collateral fact doctrine”, that any error of law made by a public body will make its decision a nullity and that a statutory exclusion clause (known as an ouster clause) does not deprive the courts from their jurisdiction in judicial review unless it expressly states this.

Anisminic sought judicial review of the tribunal’s decision. They were successful in the High Court before Browne J. The decision was then reversed by the Court of Appeal. Anisminic appealed to the House of Lords, now the Supreme Court.

There were two important issues. The first was whether the tribunal had made an error of law when construing the term “successor in title”. The second issue, which had important implications for the law on judicial review, was whether a court’s jurisdiction to review a tribunal’s decision could be excluded by an “ouster clause” in the relevant legislation even if the tribunal had made an error of law. Such a clause was section 4(4) of the Foreign Compensation Act: “The determination by the commission of any application made to them under this Act shall not be called into question in any court of law.”

Jurisdiction has wide meaning – Reid LJ identified without jurisdiction acts that render the proceeding a nullity

Notably, Reid LJ cited that “jurisdiction” has wide meaning:

I have come without hesitation to the conclusion that in this case we are not prevented from inquiring whether the order of the commission was a nullity. 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, and 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. 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. I do not intend this list to be exhaustive. But if it 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.

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Anisminic Ltd v Foreign Compensation Commission [1969] 2 A.C. 147 – The full PDF judgment