Chapter 12 Guidance on answering the pop quizzes

Is an incorrect decision of the Upper Tribunal a nullity?

Page 487: Isn’t a decision based on an error of law a nullity? Imagine that the Upper Tribunal hears an appeal from the First-tier Tribunal, and decides against you, and you are not given permission to appeal to the Court of Appeal, because the case does not raise any important point of principle or practice. Remember the doctrine developed by Lord Denning and Lord Diplock, that an error of law by an administrative tribunal makes its decision a nullity (see 9.1.2). Can you ask the Administrative Court in judicial review for a declaration that the decision is a nullity?

• You could try, and you would be able to seek support from some of the things that Lord Denning and Lord Diplock said in the cases asserting general doctrine that an error of law makes a decision a nullity. But that would be absurd, and the absurdity shows the instability in the doctrine. The Tribunals, Courts and Enforcement Act 2007 set up a complex scheme involving appeals designed to give recourse against errors in the First-tier Tribunal and in the Upper Tribunal. Just as it would be wrong for the courts to allow judicial review of a tribunal decision when there is an appeal available, it would be wrong for the courts to allow judicial review of a decision that does not meet the criteria for judicial review established by the Supreme Court in the Cart case (12.4.9). That would provide unsatisfied litigants with disproportionate process (that is, with an opportunity for a further hearing over an issue, where there is no reason of procedural justice for allowing the litigant another hearing).