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Flashcards in Jurisdiction Deck (18)
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Re Racal (2 presumptions + ratio)

The rule that all errors of law go to jurisdiction is based on two presumptions -
a) Where a statute gives D power to decide a particular question it only gives power to decide the question as it has been defined by statute.
b) Parliament does not intend to confer power on a body to decide both questions of law and fact.
Presumptions were viewed as rebutted in cases of inferior courts of law


Page (ratio + caveat)

Ratio - Parliament had only conferred the decision-making power on the basis that it was to be exercised on the correct legal basis; a misdirection in law in making the decision therefore rendered the decision ultra-vires

Caveat - For the doctrine to apply, the error must be a relevant error of law – an error in the actual making of the decision which affected the decision itself


Page (exception)

If D] is the sole arbiter of a peculiar domestic law of which the courts have no cognisance, the court has no jurisdiction either to say that he erred in his application of the general law or to reach a contrary view as to the effect of the domestic law.”


Before Cart, what was the position on courts of law re errors of law>

In Re Racal Lord Diplock suggested the presumption that tribunals and admin bodies have no authority to conclusively determine questions of law does not apply to inferior courts whom depending on statute, may have been intended by Parliament to determine certain points of law, but in O'Reilly he appeared to resile from this position. In Page both cases were cited, LBW favouring Racal.


Cart (1st instance)

The UT's statutory designation as a superior court of record was not decisive, but combined w/ the UT's independence and expertise, Laws LJ was persuaded a narrower supervisory jurisdiction should apply.


Cart (CoA)

The decisive factor was the relative autonomy invested invested by Parliament in the tribunals, and Parliament’s intention that the tribunal system should “divorce admin justice from dept policy”. The CoA thus held that JR only lay in blatant excesses of jurisdiction or denial of fundamental justice, reviving the jurisdictional/non-jurisdictional error of law distinction.



A middle ground was found between the CoA's proposition, which ran counter to the absence of any explicit provision that the UT is to be permitted to make mistakes of law, and full JR, for this ran counter to the efficiency and finality the new Tribunal system was vested with - the criteria for determining availability of second-tier appeals in ordinary courts will now determine JR for UT.


South Yorkshire Transport . Is this an exception to Page?

A jurisdictional statutory term is capable only of one correct definition, but even correctly defined, the criterion might be so imprecise that different Ds may rationally reach different conclusions; in such a case, the court can only substitute its own opinion if D's decision is irrational.

This is not an exception to Page. It goes to the question of whether an error of law has been made at all, rather than whether an error of law is jurisdictional.



There are two kinds of question of fact; “true” questions of fact and questions of law as to which lawyers have decided that it would be inexpedient for an appellate tribunal to have to form an independent judgment. In the latter case the decision is based on the nature of the question.


E (significance)

Introduced independent review for error of fact where there was factual error leading to unfairness.


What are the 5 conditions required for E to apply?

1. The parties share an interest in cooperation to achieve the right result
2. There must be a mistake as to an existing fact.
3. The fact must have been established in the sense of being uncontentious and objectively verifiable.
4. C must not have been responsible for the mistake.
5. The mistake must have played a material, not necessarily decisive part in the tribunal’s reasoning.


If C seeks to rely on E to bring a JR claim for factual error, but needs to rely on fresh evidence, what is the position?

The following conditions from Ladd v Marshall must be generally met -
i. The evidence could not have been obtained with reasonable diligence for use at trial
ii. The evidence must be such that, if given, it would probably have an important (even if not decisive) influence on the result of the case
iii. The evidence must be apparently credible (need not be incontrovertible).
NOTE the court can depart from them in exceptional circumstances, e.g. Haile.


What is the test for unfairness in E?

The finding of unfairness is simply the necessary consequence of a finding that the 5 criteria are met, and not an independent requirement.


Lim (Craig)

Rather than attempt to distinguish jurisdictional from non-jurisdictional factual preconditions, the court chose to regard every factual condition in S.10 as both appealable and reviewable in principle but calibrate the use of JR through judicial discretion. Craig applauds this, noting that all factual jurisdictional conditions operate to condition D's abilities to decide the case on merits.


Two factors Elliott suggests for identifying jurisdictional factual conditions?

• Structure of the relevant legislation
E.g. E - The conditions precedent to the making of a control order were set out in a separate section from the condition in question – indicating Parliament did not intend the order to constitute a jurisdictional precondition
• The consequences of D’s non-compliance
E.g. Jeyeanthan - The more trivial the consequences of non-compliance with the statutory requirement, the less likely it is that Parliament intended non-compliance to deprive the decision-maker of jurisdiction



The more important the right at stake, the more willing the court to intervene by adopting substitutionary review towards the factual precondition.



a. If the factual condition is objectively ascertainable substitutionary review possible, but
b. If the condition is ependent on a degree of subjective judgment, the court determines the legal meaning of the condition but whether the facts fall within the meaning of the condition is a question of fact for the tribunal in which case the court will only intervene if the decision is unreasonable.



In assessing factual jurisdictional conditions the court must inquire whether the facts exist, whether D has properly directed himself as to those facts, whether all relevant considerations have been taken into account, always having regard to the structure of the Act