House of Lords
| Published date | 01 May 1990 |
| Date | 01 May 1990 |
| DOI | http://doi.org/10.1177/002201839005400204 |
| Subject Matter | House of Lords |
HOUSE
OF
LORDS
NO CERTIORARI IF NO PROCEDURAL IMPROPRIETY
R. v. Home Secretary, ex p. AI-Mehdawi
In R. v. Diggines, ex p. Rahmani [1985] Q.B. 1109 the court
overturned adeportation order based on a hearing at which the
appellant had not been present owing to
her
solicitor's negligence.
This, it was held, constituted abreach of natural justice.
The
same
conclusion was reached in R. v. Home Secretary, ex p. AI-Mehdawi
[1989]2 W.L.R. 1982 (a note of which appeared in 53
I.C.L.
309),
where, in similar circumstances, the Court of Appeal declared that
abreach of the principle audi alteram partem constitutes a
fundamental flaw in the decision-making process. Where that has
occurred in the absence of any fault on the part of the applicant,
certiorari will go to quash the decision, notwithstanding the
complete absence of any fault on the part of the tribunal or the
"other
side". That conclusion has now been reversed by the House
of Lords: see [1989]3 W.L.R. 1294.
The
central issue in these cases is what is required by natural
justice and, in particular, by the maxim audi alteram partem. Is
natural justice concerned solely with the propriety of the proceed-
ings which resulted in the impugned decision? Does the maxim
require the presence of the parties at the hearing?
Or
is it sufficient
that they have been presented with an opportunity by the decision-
maker to put forward their case?
For
the
Home
Secretary, it was
argued in the present case that, before it can be said that there
has been abreach of natural justice, it must be shown that
there has been some procedural impropriety arising
out
of some
irregularity in the conduct of the proceedings by the decision-
maker. It follows that the conduct of anyone to whom a party has
entrusted the conduct of his case cannot involve the decision-
maker in any procedural impropriety or breach of natural justice,
if the act or omission of the party's adviser or agent is beyond his
knowledge or control. The authorities, however, point to at least
one exception to that principle, namely a decision obtained by
237
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