R v Registrar of Companies, Ex parte Central Bank of India [1986] QB 1114

Key point

  • Anisminic does not lay down an absolute and unqualified rule that any error of law renders a decision ultra vires, it is only a rebuttable presumption
  • As such, conclusive evidence clauses can protect decisions from judicial review for error of law
  • In this case the issue of a certificate of the registration of a charge by the Registrar of Companies is not amenable to judicial review for error of law

Facts

  • The applicants, a company and the CBI, one of the company’s unsecured creditor, sought judicial review of the decision of the Registrar of Companies to register a charge against the company’s assets and to issue a certificate of registration under s98(2) Companies Act 1948
  • s98(2) states: ‘the certificate shall be conclusive evidence that the requirements of this Part of this Act as to registration have been complied with.’
  • The applicants alleged that the particulars of registration had not been complied with – a copy of the charge instrument was submitted to the registrar when “instrument” in s95(1) Companies Act 1948 referred to the original and not a copy
  • The High Court judge quashed the registration of the charge
  • The Registrar appealed on the basis that Parliament intended a certificate of registration issued under s98(2) Companies Act 1948 to be conclusive evidence that specified requirements of the Companies Act 1948 had been complied with and it would be wrong for judicial review to introduce uncertainty

Held (Court of Appeal)

  • The Company Registrar’s appeal was allowed
  • The Company Registrar had committed an error of law in registering the charge as “instrument” in section 95(1) of the Companies Act 1948 referred to the original and not a copy
  • However, under s98(2), the registration of the charge is conclusive and not susceptible to judicial review

Slade LJ

Status of Anisminic 

  • Anisminic does not lay down an ‘absolute and unqualified rule’ that where an administrative authority has made an error of law in exercising its statutory function, then its decision is inevitably ultra vires and can accordingly be challenged by way of judicial review: p. 1175
  • Instead, it is only a presumption that ‘where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to confer such power [to decide questions of both law as well as fact]’, and the presumption is not irrebuttable: p. 1176

Current case

  • ‘In the face of the “conclusive evidence” provisions of section 98(2), I am driven to the conclusion…that sections 95 and 98 on their true construction confer upon the registrar the power to decide finally and conclusively all ancillary questions, whether they be questions of fact or law, or mixed fact and law, which fall to be decided in determining whether the requirements of Part III of the Act as to registration have been complied with in any given case.’: p. 1176
  • ‘Even the clearest evidence that he had come to a wrong conclusion in answering any of these questions would not entitle anyone…to claim that he acted beyond his powers, since section 98(2) would preclude the court from considering such evidence.’: p. 1176

Commentary

  • The Court was informed that there are about 300 such clauses (“conclusive evidence” clauses) in existence and was concerned that rendering determinations made under these clauses amenable to judicial review will upset the purpose of certainty that Parliament intended to promote by enacting these clauses