''Anisminic Ltd v Foreign Compensation Commission''
969
Year 969 ( CMLXIX) was a common year starting on Friday (link will display the full calendar) of the Julian calendar, the 969th year of the Common Era (CE) and ''Anno Domini'' (AD) designations, the 969th year of the 1st millennium, the 69th ...
2 AC 147 is a
UK constitutional law
The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain and Northern Ireland. With the oldest continuous political system on Earth, the British constitution is not contained in a single code but princ ...
case from the House of Lords in
English administrative law
United Kingdom administrative law is part of UK constitutional law that is designed through judicial review to hold executive power and public bodies accountable under the law. A person can apply to the High Court to challenge a public body's dec ...
. It established the "
collateral fact doctrine", that any
error of law Errors of various types may occur in legal proceedings and may or may not constitute grounds for appeal.
Types of error
* Harmless error is one considered not to have affected the trial's outcome and is thus not grounds for appeal. Harmless error i ...
made by a public body will make its decision a nullity and that a statutory exclusion clause (known as an
ouster clause
An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the ...
) does not deprive the courts from their jurisdiction in
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
unless it expressly states this.
Facts
As a result of the
Suez Crisis some mining properties of the appellant Anisminic (renamed from Sinai Mining Co.) located in the
Sinai
Sinai commonly refers to:
* Sinai Peninsula, Egypt
* Mount Sinai, a mountain in the Sinai Peninsula, Egypt
* Biblical Mount Sinai, the site in the Bible where Moses received the Law of God
Sinai may also refer to:
* Sinai, South Dakota, a place ...
peninsula were seized by the
Egypt
Egypt ( ar, مصر , ), officially the Arab Republic of Egypt, is a transcontinental country spanning the northeast corner of Africa and southwest corner of Asia via a land bridge formed by the Sinai Peninsula. It is bordered by the Medit ...
ian government before November 1956. Anisminic then sold the mining properties to The Economic Development Organisation (TEDO), owned by the Egyptian government, in 1957.
In 1959 and 1962,
Orders in Council
An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council (''King ...
were made under the
Foreign Compensation Act 1950
Foreign may refer to:
Government
* Foreign policy, how a country interacts with other countries
* Ministry of Foreign Affairs, in many countries
** Foreign Office, a department of the UK government
** Foreign office and foreign minister
* Unit ...
to distribute compensation paid by the Egyptian government to the UK government with respect to British properties it had nationalised. Anisminic claimed that they were eligible for compensation under the Orders, and the claim was determined by a tribunal (the respondents in this case) set up under the Foreign Compensation Act.
The tribunal decided that Anisminic were not eligible for compensation, because their "successors in title" (TEDO) did not have British nationality, as required by the Orders.
Anisminic sought
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
of the tribunal's decision. Anisminic were successful in the
High Court (
Browne J), but this decision was reversed by the
Court of Appeal; Anisminic then appealed to the House of Lords.
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
An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the ...
" 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."
Judgment
By a 3-2 majority, the House of Lords decided that section 4(4) of the Foreign Compensation Act did not preclude a court from reviewing the tribunal's decision. It said that a court is always able to inquire whether there has actually been a "decision", meaning a legally valid decision. If there is no legally valid decision (that is, the purported decision is legally a nullity) there is no "decision" to which an ouster clause can apply. The Lords found the purported decision to be invalid (a nullity), because the tribunal had misconstrued the term "successor in title". Since the tribunal's determination that Anisminic did not qualify for compensation was null, Anisminic were entitled to a share of the compensation paid by the Egyptian government.?
Significance
The decision illustrates the courts' reluctance to give effect to any legislative provision that attempts to exclude their jurisdiction in judicial review. Even when such an exclusion is relatively clearly worded, the courts will hold that it does not preclude them from scrutinising the decision on an error of law and quashing it when such an error occurs.
It also establishes that any error of law by a public body will result in its decision being ''
ultra vires
('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...
''.
External links
Anisminic v Foreign Compensation Commission – full text of the decision
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1968 in case law
1968 in England
1968 in British law
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