Void Or Voidable?—Natural Justice and Unnatural Meanings

Publication Date01 January 1968
DOIhttp://doi.org/10.1111/j.1468-2230.1968.tb01171.x
AuthorM. B. Akehurst
VOID
OR
VOIDABLE?-NATURAL
JUSTICE
AND UNNATURAL MEANINGS
MANY
of the rules
of
English administrative law are based
on
the
analogy of rules governing judicial decisions.
In
particular, the
question whether a defect in an administrative act renders that act
void
or
voidable
is
usually answered by applying the corresponding
rfiles applicable. to defects in judicial decisions. According to the
traditional rule laid down by Coke in
The Marshalsea,l
a judgment
is
void only
if
made without jurisdiction; other defects merely
render the judgment voidable. The decision in
The Marshalsea
goes
on
to explain the effects of this distinction;
a
voidable judgment
is by definition open to direct attack, but
it
is not open to collateral
attack;
only
a void judgment may be impugned in collateral as
well as direct proceedings.
Unfortunately, the courts have not applied these rules in
a
consistent manner. The distinction between direct and collateral
attack has frequently been distorted
or
even ignored,' and the
definition
of
jurisdictisn has varied,widely from case to case.' Such
fluctuations are largely explicable in terms
'
of
judicial policy;-at
difierent times the
courts
have shown different degrees
of
readiness
to interfere with the decisions of inferior tribunals and administra-
tive agencies. But the introduction of these contradictions has
been
a
great source of confusion in later cases; the policy reasons
underlying the earlier judgments are lost sight of, and much
muddled thinking is expended
in
a vain attempt
to
reconcile the
irreconcilable, which usually makes confusion worse confounded.
The uncertainty reaches a climax over the rules
of
natural
justice. Historical research indicates that breach of those rules
was attacked by means of the writ of error before the prerogative
writs were well developed, and for this purpose such breach wss
classified as error in fact, which rendered the resulting judgment
voidable, not void.4
As
long as the writ of error and the prerogative
1
(1612) 10 Co.Rep. 68b.
a
Often
it
is
not clear whether or not the courts regard the succesa of collaterel
attack
as
being dependent
on
the voidness
of
the decision; the allow collaterel
attack, frequently without
atsting
whether the decision
is
voiz or voidable.
8
The distinction between jurisdictional and non-jurisdictional question8
becomes progressively harder to establish
as
the process of administrative
determination ceases
to
reaemblp, that
of
an
ylinary court. Moreover, 17th-
century lawyers used the word jurisdiction
in
a
sense
ve different
from
the modern
mnse:
Edith
Q.
Henderson,
Foundatiom
of
En&h
Admhktra-
tiwe
Law,
Hamar!
University
Press.
1963, pp. 119-169.
4
D.
M.
Gordon,
Certiorari and the Revival
of
Error in Fact
"
(1926) 42
L.Q.R.
6%l.
Error in fact does
not
mean that the tribunal pt the facts
wrong. arises from
matters which are not
only
outside the issues befor: the trial court9 but
as
to
which ordinarily that court does
not
inquire at
all
(Gordon,
Zoo.
cit.
p.
626)
It
is not easy to define; the essential thing
is
that
it
2

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