Validity of actions, notices and decisionsRe [2007] Ch 150Re [1966] Ch 236Re [2004] 2 FLR 741sub nom Crown Prosecution Service v T [2007] 1 WLR 209Re [1966] Ch 236sub nom Crown Prosecution Service v T [2007] 1 WLR 209Times 3 November
Terminology
2.50Actions, notices and decisions may all be defective. The issue may arise in connection with an appeal, referral, set aside or review. For convenience, this section refers only to decisions and appeals.
Invalidity and its significance
2.51The issue is what effect the defect has. Two questions arise. First, was the decision invalid? Second, what are the consequences? Specifically, is it of any effect until it is set aside?
2.52Generally it is not necessary to distinguish invalidity from any other ground on which a decision may be set aside on appeal. However, there are exceptions. For example: if a decision is found to be invalid on appeal, the tribunal must either declare the decision invalid or replace the decision with its own. This latter course will only be possible if the tribunal has both jurisdiction and the necessary information to do so.
1R(U) 3/88 at [10]–[12]. Also, void actions cannot be validated retrospectively.
2Re Taylor (a bankrupt) [2007] Ch 150 at [70].Logic and convenience
2.53In identifying those decisions that are invalid and determining the consequences of invalidity, the law has had to strike a balance between logic and practicality. Logically, a decision is only valid if all the conditions necessary for it to be made have been satisfied. However, that would produce the result that any defect would render a decision invalid, regardless of its significance or of the impact it has had. The law seeks to avoid this by distinguishing between decisions that were not validly made and those that were validly made but defective. This distinction is illustrated by two similar cases involving attempts by local authorities to recover overpayments of housing benefit from landlords of the benefit claimant.
2.54In
Warwick District Council v Freeman,
3(1994) 27 HLR 616. the authority had decided that benefit had been overpaid to the claimant and invoiced the landlord. When the landlord asked for a review, the local authority replied that the procedure did not apply to landlords and sued for payment in the county court. The Court of Appeal held that there was no basis for the local authority’s civil action to recover the overpayment, because the authority ‘did not go through the proper process for so doing so as to entitle them to take action in the county court’.
4(1994) 27 HLR 616 at 621.2.55In
Haringey London Borough Council v Awaritefe,
5(1999) 32 HLR 517. the authority had also sued the landlord in the county court. The landlord’s defence was that the notification of the decision was defective. The Court of Appeal distinguished
Freeman as a case in which the notification procedures had not been followed at all.
Awaritefe, in contrast, was a case in which the procedures had been followed, but defectively. In those circumstances, the test to be applied was whether the landlord had suffered ‘substantive harm’ or ‘significant prejudice’. (The members of the Court clearly regarded those terms as interchangeable.) If so, there had not been substantial compliance with the notification provisions. If not, there had been substantial compliance. On the facts of that case, there had been no prejudice.
2.56The distinction between decisions that are invalid and those that are valid but defective has produced some fine distinctions. Moreover, the cases do not always refer to other lines of authority, still less explain how they are to be reconciled.
2.57A decision is presumed to be valid in the absence of evidence to the contrary.
6Carnwath LJ in Secretary of State for Work and Pensions v Menary-Smith [2006] EWCA Civ 1751 at [53].Validity for the purpose of ruling on validity
2.58All decisions, even if invalid, retain sufficient status to allow an appeal.
7See: Calvin v Carr [1980] AC 574 at 589–591; London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182; Re Gale dec’d [1966] Ch 236; R(I) 9/63 at [20]–[22]. And in those cases in which invalid decisions may simply be ignored, they have sufficient status to allow proceedings to be brought for them to be set aside.
8Diplock LJ in Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 at 736.Validity of Upper Tribunal decision and directions
2.59The First-tier Tribunal must accept the validity of a decision and directions of the Upper Tribunal, even if it considers that they were made without jurisdiction.
9Nesbitt (David John Edwards)’s Application [2013] NIQB 111; [2014] AACR 31Decisions made in other proceedings
2.60The starting point is that a decision made in separate proceedings must be accepted as validly made until it is set aside. There may, or may not, be a statutory provision that that decision is final or conclusive.
2.61In
Isaacs v Robertson,10[1985] AC 97. the Privy Council decided that:
… an order made by a court of unlimited jurisdiction … must be obeyed unless and until it has been set aside by the court.
11[1985] AC 97 at 101. See also: R(H) 1/07; Rochdale Metropolitan Borough Council v KW (No 2) [2016] 1 WLR 198 at [22].The same principle applies if the order was made by a court of limited jurisdiction.
12Director of Public Prosecutions v T [2001] 1 WLR 209. It applies even if the order was made without jurisdiction.
13Wall LJ in Re B (Court’s Jurisdiction) [2004] 2 FLR 741 at [68]. In that case, the court lacked jurisdiction because the child who was the subject of the residence order in question was not habitually resident in England.2.62The Privy Council in
Isaacs disapproved of the distinction between void and voidable orders,
14[1985] AC 97 at 102–103. but approved what Romer LJ said in
Hadkinson v Hadkinson:
15[1952] P 285 at 288. It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. ‘A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it … It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order, which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.’ (
per Lord Cottenham LC in
Chuck v Cremer (1846) Cooper temp. Cottenham 205, 338).
16For an example of the principle in operation, see Re Gale dec’d [1966] Ch 237.The same applies to an undertaking. In
Johnson v Walton,17[1990] 1 FLR 350. Lord Donaldson MR said:
… when an injunctive order is made or when an undertaking given, it operates until it is revoked on appeal or by the court itself, and it has to be obeyed whether or not it should have been granted or accepted in the first place.
18[1990] 1 FLR 350 at 352.2.63The decisions of the Commissioners were to the same effect.
19R(I) 9/63 at [20]–[22].2.64A collateral challenge is permissible, but only in limited circumstances. An example was
Boddington v British Transport Police.20[1999] 2 AC 143. In that case, a person convicted of an offence was allowed to challenge the validity of the byelaw that created the offence. It is not clear whether the byelaw was void or voidable.
21[1999] 2 AC 143 at 164. The key consideration was that the person concerned would not otherwise have had a fair opportunity to challenge the validity of the byelaw.
22Director of Public Prosecutions v T [2007] 1 WLR 209 at [26].2.65Despite these authorities, there are recognised but limited circumstances in which a decision can be treated as invalid.
Power to entertain proceedings
2.66A decision is invalid if there was, in the circumstances, no power to entertain or embark upon the proceedings that led to it. This may arise in two circumstances. First, the proceedings may never have been commenced. Second, the proceedings may already have been concluded.
2.67Both circumstances were considered by the Tribunal of Commissioners in
R(I) 7/94. In that case, tribunal A had decided an appeal. Tribunal B refused to set that decision aside, but it was later set aside by tribunal C and the case was reheard by tribunal D. The issue for the Tribunal of Commissioners was whether tribunal D had jurisdiction. This turned on whether tribunal C had power to embark on the further proceedings to set aside the decision made by tribunal A. The Commissioners decided that it did not and that tribunal D should have decided that it had no power to decide the appeal again. The power to consider the application to set aside had been exhausted, because: (i) there had been a valid application by a prescribed person; (ii) the application had not already have been determined; when (iii) a properly constituted tribunal (tribunal B) had sat and considered the application; and (iv) then decided the application.
23R(I) 7/94 at [30].2.68The Tribunal of Commissioners did not refer to the authorities that decide that a decision of a court is binding until quashed. Instead, it relied on a tribunal’s duty to ensure that it has jurisdiction.
24R(I) 7/94 at [27]. It also justified its power to go behind the decision of tribunal C by reference to its power to decide on the validity of secondary legislation:
If Commissioners may, incidentally to determining the issue before them, pronounce on the validity of provisions in regulations, so must they be able to pronounce on the validity of decisions of other administrative bodies.
25R(I) 7/94 at [25].The appeal tribunal was not, of course, an administrative body. The decision was made by a judicial body and, although it was not subject to an appeal, it was subject to judicial review.
2.69It is also possible that the Tribunal of Commissioners was influenced by the fact that a decision under the set aside power was a determination rather than a decision. This was the analysis relied on by the Commissioner in
R(I) 14/65. The Commissioner decided that he was not bound by a grant of leave to appeal out of time, which the tribunal had no power to do. He described the extension of time as having ‘no meaning’.
26R(I) 14/65 at [7]. Unlike the Tribunal of Commissioners, he considered the authorities on the validity of decisions, but distinguished them:
But the grant, or refusal to grant, leave to appeal is not as it seems to me, a ‘decision’ in the sense that a person’s substantive rights are thereby determined; rather is it a determination as to the manner in which those rights are to be decided.
27R(I) 14/65 at [6].However, in principle this should not be relevant, as the decision was subject to judicial review.
2.70If the issue is whether any proceedings have ever been commenced, the focus is on the contents of the application and the person who made it. For example: in R(SB) 1/95, a tribunal chairman had extend the time for appealing against a decision. (As with decisions under the set aside power, the decision to extend time was not subject to an appeal.) The application had identified the date of that decision as 1991 instead of 1970. The appeal was then heard by an appeal tribunal. The Commissioner decided that the tribunal had no jurisdiction. The decision to extend time was invalid, because the application did not comply with the requirement to identify the decision under appeal.
2.71If the issue is whether proceedings have already been concluded, the focus is on the tribunal and its constitution. In
R v Secretary of State for the Home Department ex p Choudhary,
28[1978] 1 WLR 1177. an immigration officer had stamped a passport with indefinite leave to remain. The Court of Appeal decided that stamp was ‘clearly invalid’, as the officer had no power to put the stamp on the passport or to give indefinite leave.
29[1978] 1 WLR 1177 at 1182 D–E and F–G. And in
Akewushola v Secretary of State for the Home Department,
30[2000] 1 WLR 2295. the Immigration Appeal Tribunal dismissed an appeal, but the chairman purported to set aside its decision. When the case came on for rehearing, the new Immigration Appeal Tribunal decided that it did not have jurisdiction. This was confirmed by the Court of Appeal on the grounds that: (i) the rules governing the tribunal did not authorise a chairman to set aside a decision and (ii) there was no power for a tribunal to review its own decisions unless authorised by statute. This deprived the second tribunal of any jurisdiction whether or not ‘a purported decision plainly made without power can be ignored or must first be quashed by the High Court’.
31[2000] 1 WLR 2295 At 2302 in the penultimate para in Sedley LJ’s judgment. In other words, the tribunal had no jurisdiction even if the setting aside order remained valid until quashed.
32See also R v West [1964] 1 QB 15.No decision made
2.72It is possible that the decision under appeal is so lacking in the key elements required that it has never been taken. The circumstances in which this might occur were considered by the Tribunal of Commissioners in
R(IB) 2/04. The Tribunal referred to the possibility that ‘there may be some decisions of the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions at all’, but it did ‘not consider it would be helpful here to seek to identify characteristics which might lead to that conclusion in a particular case’.
33R(IB) 2/04 at [72].2.73If an appeal is lodged against a decision that has not been made, the tribunal’s only powers are to strike out the case or to declare that it has no jurisdiction on that ground.
Decision made but not notified
2.74In
R (Anufrijeva) v Secretary of State for the Home Department,
34[2004] 1 AC 604 at [26]. the House of Lords decided that a decision did not have legal effect until it was communicated. But this does not mean that an uncommunicated decision is ineffective for all purposes.
35[2004] 1 AC 604, per Lord Millett at [39]. For example: in
R(U) 7/81 a Tribunal of Commissioners held that failure to notify a decision in accordance with a statutory requirement did not render the decision invalid.
36R(U) 7/81 at [21].2.75As to the form in which notification must be made, the Tribunal of Commissioners in R(U) 7/81 considered notification under section 100(2) of the Social Security Act 1975, which required notification in writing of a decision and the reasons for it. The Tribunal decided:
Also we do not consider that notification of a Computer Centre decision must necessarily take the form of an exact copy of the original; indeed that would be confusing to many persons. But there must be accurate disclosure in clearly intelligible terms of the effect of the decision, and of course the reasons for it must be supplied to the person concerned.
37R(U) 7/81 at [21].2.76These decisions are consistent with the effect produced by UTR r7(1) and equivalent provisions. See chapter 7.
Decision made on invalid grounds
2.77A decision is not invalid just because it was made on invalid grounds.
2.78This arises if a tribunal has power to make a form of decision on limited grounds and makes a decision in that form but on other grounds. This was considered by the Tribunal of Commissioners in
R(I) 7/94. The social security appeal tribunal had power to set aside a tribunal’s decision only on procedural grounds. The Tribunal said that a decision to set aside would not be invalid just because it was made on other grounds that were outside the tribunal’s power.
38R(I) 7/94 at [32].Decision made in error of law
2.79A decision is not invalid merely because it contains an error of law.
Decisions made without due process
2.80A decision is not invalid just because there was unfairness in the procedure that led to it. In
R(I) 7/94, the Tribunal of Commissioners said that a breach of natural justice ‘however gross’ did not render a decision invalid.
39R(I) 7/94 at [32]. However, in
CGU International Insurance plc v AstraZeneca Insurance Co Ltd40(2006) Times 3 November. the Court of Appeal said that an unfairness could be such a substantial defect as to invalidate the decision. This was in the context of the Court of Appeal’s residual power to set aside a refusal of leave to appeal from an arbitration.
Failure to apply the procedure correctly
2.81In the case of procedural requirements, the trend of authorities has been to focus on the effects of the defect rather than on its nature, and on the impact on those affected rather than on its significance for the essence of the decision. This has at least three consequences. First, the validity of a decision can only be decided in retrospect, once its effects are known. Second, the decision may be valid as against one party or for one purpose, but not against another party or for another purpose. Third, in order to decide the validity of a decision, it may be necessary to balance the competing interests of the persons concerned.
2.82
R (P) v Haringey London Borough Council41[2009] ELR 49. is a good illustration of this approach to invalidity. The case concerned notification of a decision not to reinstate a pupil who had been excluded from a school. The judge held:
The notices, though defective, are not so defective as not to comply substantially with the legal requirement of notifying the claimant of his right to appeal and are not invalid. Considering the facts, and the absence of any waiver, the consequences which flow from the defects are not critical in this case. If, however, the notices had been given in a form which had misled P’s mother into thinking that she had more time to appeal than in fact she had, then the position might have been different.
42[2009] ELR 49 at [19].2.83Many authorities have analysed this issue in terms of whether he decision made was ‘void’, ‘voidable’ and ‘nullity’. They have been disapproved on the ground that the terms can only be understood as stating the consequence of a judicial determination rather than the basis for it.
43Lord Diplock in Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 366. The context was the validity of a statutory instrument rather than a decision, but the point is valid for all public law contexts. However, Lord Diplock’s historical explanation for the terms is probably not correct.2.84For a long time, the effect of a failure to comply with a provision depended on whether it was ‘mandatory’ and ‘directory’. Compliance with a mandatory provision was essential to validity, whereas a failure to comply with a directory provision was regarded as a mere irregularity that did not affect the validity of what had been done.
2.85This distinction was disapproved on the ground that mandatory and directory were not rigid categories but points on a spectrum of non-compliance.
44Lord Hailsham in London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 at 189–190. They were replaced by a test of whether there had been ‘substantial compliance’ with the provision.
45Lord Woolf MR in R v Secretary of State for the Home Department ex p Jeyeanthan [2000] 1 WLR 354 at 362.2.86This test was in turn replaced by the House of Lords in
R v Soneji.
46[2005] 4 All ER 321. The test now depends on statutory interpretation. Lord Steyn summarised the law:
… the rigid mandatory and directory distinction, and its many technical refinements have outlived their usefulness. Instead, … the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction.
47[2005] 4 All ER 321 at [23].However, Lord Carswell said that there might still be some value in the concept of substantial performance.
48[2005] 4 All ER 321 at [63].2.87The House of Lords has confirmed the importance of a proper analysis of the governing statute, which may indicate the effect of non-compliance and thereby render irrelevant any consideration of the consequences of non-compliance.
49R v Clarke [2008] 2 All ER 665.2.88The significance of the failure is determined in the context of the case as a whole. In
R v Sekhon,50[2003] 1 WLR 1655. Lord Woolf CJ said that the issue in that case was:
… the type of issue that courts regularly are required to determine when engaged in case management. The strict compliance with procedural requirements relating to issues of this nature would not normally be expected to go to jurisdiction. The provisions tell the judge the order in which he must deal with matters and the considerations he must have in mind. Any default by the judge can be satisfactorily dealt with on appeal when it is to be expected that the court would examine the circumstances and not focus on technicalities. The issue would be what did justice require having regard to the Parliamentary code.
51[2003] 1 WLR 1655 at [37].2.89The particular issue of failure to comply with rules of procedure is discussed in chapter 7.