Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

Key points

  • An error of law in the decision of a public body automatically renders the decision ultra vires and null
  • As such, any ouster clause which aims to exclude judicial review for decisions of public bodies will be ineffective in excluding review for an error of law

Facts

  • Anisminic’s mining properties were nationalised in Egypt and sold to an Egyptian government-owned company
  • An Order in Council was made under the Foreign Compensation Act 1950 for the distribution of compensation paid by the Egyptian government to the British government in relation to British properties that had been nationalised
  • Its claim was denied by the tribunal (the defendant) on the basis that the legislation required that successors in title of Anisminic’s properties be of British nationality
  • Anisminic sought judicial review of the decision on the basis that there had been an error of law in interpreting the meaning of ‘successors in title’
  • The Court of Appeal held that any question of judicial review was barred, in accordance to the ouster clause at s4(4) of the 1950 Act, which states ‘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’

Issues

  • Was an error in law made by the tribunal when construing the term ‘successor in title’?
  • Did the ouster clause exclude judicial review?

Held (House of Lords)

  • Appeal allowed
  • The tribunal misconstrued the term ‘successor in title’ so as to nullify its decision
  • Thus there was no ‘legally valid decision’ to which the ouster clause can apply

Lord Reid

  • ‘If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law.’
  • ‘Undoubtedly such a provision protects every determination which is not a nullity.  But I do not think that it is necessary or even reasonable to construe the word “determination” as including everything which purports to be a determination but which is in fact no determination at all.: p. 170

Lord Pearce

  • ‘Such tribunals must, however, confine themselves within the powers specially committed to them on a true construction of the relevant Acts of Parliament. It would lead to an absurd situation if a tribunal, having been given a circumscribed area of inquiry, carved out from the general jurisdiction of the courts, were entitled of its own motion to extend that area by misconstruing the limits of its mandate to inquire and decide as set out in the Act of Parliament.’: p. 194

Commentary

  • Prior to Anisminic, English law drew a distinction between errors of law that went to jurisdiction and errors of law, Anisminic abolished that distinction