Anisminic Ltd v Foreign Compensation Commission
An ouster clause does not protect a decision made on the basis of an error of law, because such a decision is a nullity: one of the most important cases in public law.
Facts
Anisminic, a British company, owned mining property in Egypt that was seized by the Egyptian government during the Suez crisis in 1956. Under a later treaty, Egypt paid compensation to the UK, which was distributed by the Foreign Compensation Commission under rules set out in an Order in Council. The Commission rejected Anisminic's claim, on the basis that its successor in title, an Egyptian company to which Anisminic had sold the property, was not a British national. Section 4(4) of the Foreign Compensation Act 1950 provided that the determination by the commission of any application made to them under this Act shall not be called in question in any court of law.
Legal principle
The House of Lords held, by a majority, that the Commission's decision was a nullity and could be challenged despite the ouster clause. The Commission had misinterpreted the Order in Council by asking whether Anisminic's successor in title was a British national, which was a question it had no right to consider. By asking itself the wrong question, it had made an error of law that took it outside its jurisdiction, so its decision was not a determination within the meaning of the ouster clause, which protected only real determinations, not purported determinations. Lord Reid explained that a tribunal may lose jurisdiction in many ways, including by acting in bad faith, failing to comply with natural justice, misconstruing its powers or taking irrelevant matters into account. The case effectively established that all errors of law are reviewable.
Related cases on judicial review: scope, standing and ouster clauses
- O'Reilly v Mackman [1983] 2 AC 237
- R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663
- R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] AC 491
- R (Walton) v Scottish Ministers [2012] UKSC 44
- R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909
- R v Hull University Visitor, ex p Page [1993] AC 682
- R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617
- R v Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329
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