Anisminic Ltd v Foreign Compensation Commission

JurisdictionEngland & Wales
Judgment Date22 March 1967
Judgment citation (vLex)[1967] EWCA Civ J0322-1
Date22 March 1967
CourtCourt of Appeal (Civil Division)
Anisminic Limited
The Foreign Compensation Commission
Cecil Frank Cooper

[1967] EWCA Civ J0322-1


Lord Justice Sellers

Lord Justice Diplock and

Lord Justice Russell

In The Supreme Court of Judicature

The Court of Appeal

(Civil Division)

(From: Mr. Justice Browne - London)

Mr. SYDNEY W. TEMPLEMAN, Q.C., Mr. NIGEL BRIDGE and Mr. C.D. COCHRANE (instructed by the Treasury Solicitor) appeared on behalf of the Appellants (Defendants).

Mr. ROGER PARKER, Q.C. and Mr. F.P. NEILL, Q.C. (instructed by Messrs. Linklaters & Paines) appeared on behalf of the Respondents (Plaintiffs).


LORD JUSTICE SELLERS (Judgment read by Lord Justice Russell):


The extensive judgments of Mr. Justice Browne in the Queen's Bench and of Lord Justice Diplock in this Court, which I have already had an opportunity of reading, permit me to turn almost at once to my conclusions on this appeal, in so doing adopting as widely as possible the surveys in the judgments of these two learned judges, including their statements of the facts and the issues.


The plaintiffs have appealed from a decision, unfavourable to them, of the Foreign Compensation Commission. Mr. Justice Browne entertained the appeal and made a declaration favourable to the plaintiffs (now respondents) notwithstanding that section 4 sub-section 4 of the Foreign Compensation Act, 1950, provides 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".


Further, the Tribunals and Inquiries Act, 1958, constituted a Council on tribunals and provided for appeals to the Courts from decisions of, or on appeal from, certain tribunals; required the giving of reasons for certain decisions of tribunals and ministries, and extended the supervisory powers of the High Court. Section 11 sub-section 1 enacts: "As respects England and Wales or Northern Ireland, any provision in an Act passed before the commencement of this Act that any order or determination shall not be called into question in any court, or any provision in such an Act which by similar words excludes any of the powers of the High Court, shall not have effect so as to prevent the removal of the proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus". But, it is to be noted, section 11 sub-section 3 expressly stipulates that subsection I shall not apply to any order or determination of the Foreign Compensation Commission. Those are clear and emphatic statutory provisions and the question in this case is whetherthe Courts can disregard them and if so in what circumstances and to what extent.


This action seeks declarations which undoubtedly call in question the determination by the Foreign Compensation Commission of an application made to the tribunal under the 1950 Act. Nothing relevant to the appeal turns on the fact that the determination was provisional. The application was in proper form, the proceedings were regularly conducted, and the tribunal, properly constituted, reached a reasoned decision which it made available to the parties, as I am inclined to think, unnecessarily and perhaps undesirably.


On what, then, is this action at law based? It is alleged that the Commission have misconstrued the terms of the Order in Council stipulating the matters to be proved by an applicant in order to establish a claim. They have, it is said, required more to be proved than the Order warrants or considered matters which do not arise on a true construction of the Order and have failed to make the proper order when the requirements of the Order in Council had been fulfilled by the applicants. The respondents did not shrink from submitting that whether the Commission had so erred or not could not be ascertained until the facts, the relevant statutes and Orders in Council had been fully analysed and considered. Consequently both Courts, here and below, have been subjected to a complete consideration of all the matters which arose before the Commission, as well as the ample authorities dealing with the circum-stances in which the Courts have interfered with the decisions of inferior tribunals where there has been a statutory clause similar, or with the like effect, to section 4 (4) of the 1950 Act.


I am of opinion that the Courts cannot substitute their views on the construction of the Order in Council for that of the Commission who alone have to be satisfied that a claim has been established. A determination may in the view of some be wrong either in fact or in law but it may none the less be adetermination. The Foreign Compensation Commission is not an inferior court administering the general law of the land. It is a special Commission of Selected Commissioners called upon in its present relevant jurisdiction to adjudicate upon claims made by applicants to participate in a sum of £27,500,000 (supplemented by moneys provided by Parliament) which the Government have received from the Egyptian Government following the events at Suez in 1956.


War and confiscation and their aftermaths had brought about confusion, complications and uncertainties with regard to property and rights. The Government had negotiated this sum in the interests generally of British nationals who had suffered loss, and any distribution of that sum was at the Government's discretion and decision. By Orders in Council provisions were made as to the qualifications of claimants and the entitlement to participate in the funds. This involves the Commission in ascertaining what are the requirements to substantiate a claim. It is an inherent and indeed the initial part of their adjudication to construe the relevant Order in Council and then to review an applicant's claim and to reach their determination upon it.


The Commission have been entrusted under the 1950 Act with this special and defined task and having regard to the nature and the purpose of their adjudication Parliament has decreed that their decision shall be final. The wisdom of this is established, rather than defeated, by the nature and the extent of these proceedings and the inevitable delay so far involved.


What the Commission had to do was to determine the application made to them. I think it would be a travesty to say that they have not done so. I am in general agreement with what Lord Justice Diplock has so fully said in the judgment he is about to read and like him I do not find any satisfactory reason or authority to support the plaintiffs' endeavour to re-open this matter before the Courts.


The submission for the respondents has been that theCommission acted without jurisdiction in that its decision refusing the claim was wrong in law and invalid and therefore a nullity.


The question of jurisdiction is determinable at the commencement, not at the conclusion, of the inquiry. The test on jurisdiction, in the only sense in which it is relevant here, is whether the Commission had power to enter upon the inquiry and make a determination; not whether their determination was right or wrong in fact or in law. "The question of jurisdiction does not depend on the truth or falsehood of the charge but upon its nature; it is determinable on the commencement, not at the conclusion, of the inquiry; and affidavits, to be receivable, must be directed to what appears at the former stage, and not to the facts disclosed on the progress of the inquiry": per Lord Denman, Chief Justice: The Queen v. Bolton (1841) 1 Queen's Bench Reports, at page 74.


Lord Justice Diplock has enumerated four respects in which the authority or "jurisdiction" of a tribunal to determine matters submitted to it is limited. With these I agree. It was not suggested that any of these conditions has been infringed. The Commission was properly constituted. It held an inquiry in accordance with the statutory requirements and in a judicial manner. The plaintiffs' claim related to the subject-matter of the Commission's authority to determine. The Commission reached a conclusion and determined the claim. They did not fail in regard to any condition precedent to their adjudication.


I do not question Mr. Justice Browne's classification in his detailed and helpful review of the many authorities cited to him and to us. I apprehend that such a citation will rarely be necessary in the future as the Tribunal and Inquiries Act, 1958, will readily enable the appropriate Court to exercise an appellate or at least a supervisory control over a wide field.


It is when the learned judge concluded by saying, as he did, that if he were right in his view that the Commission'sdecision was wrong section 4 sub-section 4 does not oust the jurisdiction of the Court, that I would with respect disagree. His view was formed, as he said, after much hesitation. Unless established authority clearly requires such a conclusion, this does not seem to me to be a case where the Courts should strive to disregard the statutory provision that the determination should not be called in question in any Court of law, which prohibition received further emphasis by the Tribunals Act of 1958. The Courts, it is true, have not looked with favour on legislative provisions for ousting the jurisdiction of the Court but if the words of prohibition in this Act are to be given the meaning which they clearly express, as I read them, they do not admit of any qualification or distinguish one part of the Commission's task from another. In the performance of its duties the Commission may have to construe innumerable statutes, orders, contracts and documents of many kinds, some English, some foreign, and I see no reason for excepting from their adjudication the Order in Council whose terms, as they understand them, direct their administration.


The argument for the plaintiffs, the respondents here, in both Courts has somewhat remarkably been based...

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2 books & journal articles
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    ...9 N.S.C.C. 12; (1975) 2 S.C. 9.......................................………….49, 546 Anisminic Ltd. v. Foreign Compensation Commission (1967) 3 W.L.R. 382; (1967) 2 All E.R. 986………….......................................................................................................................
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    ...Cote, Cowansville (QC), Yvon Blais, 2011, 9 aux pp 13-28. (68) Voir Anis minie Ltd v Foreign Compensation Commission (1967), [1967] 2 All ER 986 a lap 993, [1968] 2 QB 862 (69) AV Dicey, > dans Lectures Introductory to the Study of the Law of the Constitution, Londres (R-U), Macmillan and C......

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