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Anisminic v Foreign Compensation Commission

[1968] 2 QB 862 (CA)

Case summary last updated at 07/01/2020 18:15 by the Oxbridge Notes in-house law team.

Judgement for the case Anisminic v Foreign Compensation Commission

  The Egyptian government nationalized P’s properties in Egypt.  P then sold the mining properties to an Egyptian government-owned company. A piece of subordinate legislation was passed under the Foreign Compensation Act 1950, to distribute compensation paid by the Egyptian government to the UK government with respect to British properties it had nationalised. P said it was eligible for compensation under this piece of subordinate legislation, which was determined by a tribunal (the respondents in this case) set up under the Foreign Compensation Act 1950. The tribunal however, decided that the appellants were not eligible for compensation, because their "successors in title" did not have the British nationality as required under one of the provisions of the subordinate legislation. There was a clause in the statute saying that "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".

 HL held that (1) the word “determination” in the statutory “ouster” clause did not include conclusions reached outside of the tribunal’s jurisdiction i.e. a determination made without jurisdiction was not a determination; (2) jurisdiction was construed broadly, including embarking on unauthorised enquiry/ exercising powers in an unauthorised manner e.g. going against rules of natural justice; and (3) A mistake of law (apart from some exceptional circumstances, per Lord Wilberforce) was a factor on which the tribunal’s jurisdiction depended. 

Lord Reid: Jurisdiction has a narrow meaning: is the tribunal entitled to enter on the inquiry in question. However sometimes, even where the tribunal had jurisdiction it may do something that renders its decision a nullity e.g. giving a decision in bad faith, making a decision that it had no power to make, failure of “natural justice”, error of law, failure to take into account a relevant fact, taking into account a fact when it was not entitled to do so- non exhaustive list. Provided DM has jurisdiction and doesn’t fall foul of the these elements, DM is “as much entitled to decide that question wrongly as it is to decide it rightly”. Here the tribunal made an error in law i.e. misconstrued the meaning of “successor in title” in the act. 

Lord Pearce: He uses a broad definition of “jurisdiction”, saying that there is no jurisdiction where the elements mentioned by Lord Reid are included e.g. there is no jurisdiction if there is no natural justice. 

Lord Wilberforce: He supports Lord Reid, saying that a tribunal might properly operate within its jurisdiction (i.e. make an enquiry that it is entitled to make) but nevertheless make a decision that is void (not merely erroneous) e.g. the points made by Lord Reid. 

Whether the majority considered that “jurisdiction” is narrow but there are many other grounds for voiding a decision or that jurisdiction is broad, including what Lord Reid considers other matters, is irrelevant. Lord Wilberforce even said we shouldn’t get too caught up in the debate about what exactly “jurisdiction” means. The important point is that the courts assume a wide berth of scrutiny and minimise area of non-justiciability.

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