ANISMINIC LTD VS FOREIGN COMPENSATION COMMISSION [1969] 2 AC 147 ( Vital judgment – English Administrative Law ) Prepared by Danushika Lakmali Abeyrathne

SESSION OUTLINE… Background Facts Argumentation Main issues Judgment The doctrine of traditional jurisdictional error vs The doctrine of broad jurisdictional error Post - Anisminic

Besides this, this case is relating to the ‘ouster – clause’ too. BACKGROUND : GROUNDS OF JUDICIAL REVIEW Ultra vires Natural Justice Legitimate Expectation Illegality Irrationality Public Trust Doctrine Doing Wrong Thing Doing the right thing in a wrong way Doing the right thing in a right way for a wrong purpose Besides this, this case is relating to the ‘ouster – clause’ too. Factual Simple UV Question of the jurisdiction Legal Anisminic

Their property was sequestered by Egyptian government. FACTS : Appellant Anisminic was an English company which owned mining property in Egypt before 1956. Their property was sequestered by Egyptian government. Then appellants sold the mining properties to TEDO in 1957. ( an Egyptian – government owned organization ) A piece of subordinate legislation passed in 1959 under the Foreign Compensation Act 1950.

FACTS : CONT… Purpose of this was to distribute compensation paid by the Egyptian government to the UK government with respect to British properties it had nationalized. Appellants claimed that they were eligible for compensation under this subordinate legislation. This was determined by a tribunal ( the respondent in this case) set up under the Foreign Compensation Act 1950.

ARGUMENTATION : Tribunal decided : Appellants were not eligible for compensation because their “successors in title” (TEDO) did not have the British nationality. Appellant argued : The nationality of successor was irrelevant where the claimant was the original owner .

FOREIGN COMPENSATION COMMISSION NO! I’M AN EGYPTIAN YES! BRITISH NATIONAL??? COMPENSATION FROM EGYPT NO??? THEN NO ENTRY!!! ORIGINAL OWNER FOREIGN COMPENSATION COMMISSION SUCCESSOR IN TITLE

MAIN ISSUES : Whether the tribunal had made an error of law in construing the term “successors in title” ( in subordinate legislation ) Even if the tribunal had made an error of law, the House of Lords had to decide whether or not an appellate court had the jurisdiction to intervene in tribunal’s decision. (Section 4(4) of the Foreign Compensation Act 1950 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” )

JUDGMENT : ( Was given for plaintiff – House of Lords 3-2 majority ) ISSUE 01; Lord Reid gave the leading judgment and he reasoned that there were a number of ways in which a tribunal could do something to render its decision a nullity. For example ; Acting in bad faith Making a decision the tribunal has no power to make Failing to comply with the requirements of procedural fairness Failing to take account of relevant consideration or by asking wrong question Basing its decision on some matter which it had no right to take into account

JUDGMENT : CONT… ISSUE 02 ; The House of Lords decided that Sec. 4(4) of Foreign Compensation Act didn’t preclude the court from inquiring whether or not the order of the tribunal was a nullity ( even when such an exclusion is relatively clearly worded), the courts will hold that it does not preclude them from scrutinizing the decision on an error of law and quashing it when such an error occurs. This approach significantly broadened the traditional doctrine of jurisdictional error.

THE DOCTRINE OF TRADITIONAL JURISDICTIONAL ERROR vs THE DOCTRINE OF BROAD JURISDICTIONAL ERROR : TRADITIONAL JURISDICTIONAL ERROR ; EG : R VS HICKMAN ex parte Fox & Clinton [1945] 70 CLR 598 (about lorry drivers who sometimes carried coal in their lorry) LATHAM CJ; “In my opinion, the whole of the evidence shows that the employers & employees concerned are not engaged in the coal mining industry & that therefore the decision of the Local Reference Board was made without jurisdiction”

B. THE DOCTRINE OF BROAD JURISDICTIONAL ERROR (Extended by Anisminic case) Jurisdictional errors of law – Example of Anisminic LORD REID ; Acting in bad faith Making a decision the tribunal has no power to make Failing to comply with the requirements of procedural fairness Failing to take account of relevant consideration or by asking wrong question Basing its decision on some matter which it had no right to take into account

B. THE DOCTRINE OF BROAD JURISDICTIONAL ERROR CONT… LORD PEARCE ; “ There maybe an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry; Or the tribunal may of the end make an order that it has no jurisdiction to make; Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice;

LORD PEARCE ; CONT….. Or it may ask itself the wrong questions; Or it may take into account matters which it was not directed to take into account; …Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by parliament & failed to make the inquiry which parliament did direct. Any of these things would cause its purported decision to be a nullity. ”

POST – ANISMINIC : (Other countries) O’Reilly vs Mackman [1983] 2 AC 237 R vs Hull University Visitor ex p Page [1992] 3 WLR 1112 Commissioner of Police vs District Court of NSW [1993] 31 NSWLR 606 Craig vs South Australia [1995] HCA 58 MIMA vs Yusuf [2001] HCA 30

POST – ANISMINIC : CONT…. (Sri Lanka) Gunarathne vs Chandra De Silva (1998) 3 SriLR 256 Surveyors Institution of Sri Lanka vs Acting Survey General (1998) 1 SriLR 252 Edirisinghe vs Charles Singho (2000) 1 SriLR 880

POST – ANISMINIC : CONT…. OUSTER – CLAUSES : (Sri Lanka) Premachandra vs Jayawickrama (1994) 2 SriLR 90 Peter Athapaththu vs Peoples’ Bank (1997) 1 SriLR 208 Mark Fernando J Leading Judgment in the present

POST – ANISMINIC : CONT…. Interpretation Ordinance ( No. 21 of 1901 ) as amended by the Act No. 18 of 1972 Section 22 ; “Where there appears in any enactment, whether passed or made before or after the commencement of this Ordinance, the expression “shall not be called in question in any court’’ , or any other expression at similar import whether or not accompanied by words “whether by way of writ or otherwise” in relation to any order, decision, determination, direction or finding which any person, authority or tribunal is empowered to make or issue under such enactment, no court shall, in any proceedings and upon any ground whatsoever, have jurisdiction to pronounce upon the validity or legality of such order, decision, determination, direction or finding, made or issued in the exercise or the apparent exercise of the power conferred on such person, authority or tribunal”

THANK YOU!!! *******