House of Lords case law.

THE VOID COURT ORDER–ex debitojustitiae–After the District Court passesJudgment on you,

It is important to note therefore that in the case of orders of Courts with unlimited jurisdiction, an
order can never be void unless the ‘unlimited jurisdiction’ is ‘limited’ in situations where it is
expressly shown to be so. In the case of orders of the Courts of unlimited jurisdiction where the
jurisdiction is not expressly shown to be limited, the orders are either regular or irregular. If
irregular, it can be set aside by the Court that made it upon application to that Court and a person
affected by the irregular order has a right –ex debitojustitiae– to have it set aside. If it is
regular, it can only be set aside by an appellate Court upon appeal if there is one to which an
appeal lies (Lord Diplock in Isaacs v Robertson (1984) 43 W.I.R. PC at 128-130). However,
where the Court’s unlimited jurisdiction is shown to be limited (for example: a restriction on the
Court’s power by an Act of Parliament or Civil or Criminal Procedure Rule) (Peacock v
BellandKendal [1667]; Halsbury’s Laws of England) then the doctrine of nullity will apply.
Similarly, if the higher Court’s order is founded on a lower Court’s void act or invalid claim then
the higher Court’s decision will also be void (Lord Denning in MacFoy v United Africa Co. Ltd.
[1961] 3 All ER).
The main differences between a ‘void’ and ‘voidable’ order or claim is that:
(i) a ‘void’ order or claim has no legal effect ab initio (from the beginning/outset) and therefore
does not need to be appealed, although for convenience it may sometimes be necessary to have it
set aside (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] and Firman v Ellis [1978])
whereas a ‘voidable’ order or claim has legal effect unless and until it is set aside. Therefore,
while a void order or claim does not have to be obeyed and can be ignored and its nullity can be
relied on as a defence when necessary (Wandsworth London Borough Council v. Winder [1985]
A.C. 461), a voidable order or claim has to be obeyed and cannot be ignored unless and until it is
set aside; and
(ii) a ‘void’ order can be set aside by the Court which made the order because the Court has
inherent jurisdiction to set aside its own void order (Lord Greene in Craig v Kanssen [1943])
whereas a ‘voidable’ order can only be set aside by appeal to an appellate Court.
A person affected by both a void or voidable order has the right – ex debitojustitiae – to
have the order set aside (which means that the Court does not have discretion to refuse to set aside
the order or to go into the merits of the case) (Lord Greene in Craig v Kanssen [1943]).
The procedure for setting aside a void order is by application to the Court which made the void
order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene
in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where
available) and where damages may also be claimed.
Although an appeal is not necessary to set aside a void order, if permission to appeal is requested
and if out of time the Court should grant permission because time does not run because the order
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is void and the person affected by it has the right to have it set aside (Lord Greene in Craig v
Kanssen [1943].
A void order is incurably void and all proceedings based on the invalid claim or void act are also
void. Even a decision of the higher Courts (High Court, Court of Appeal and Supreme Court) will
be void if the decision is founded on an invalid claim or void act, because something cannot be
founded on nothing (Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).
A void order is void even if it results in a failure of natural justice or injustice to an innocent third
party (Lord Denning in Wiseman v Wiseman [1953] 1 All ER 601).
It is never too late to raise the issue of nullity and a person can ignore the void order or claim and
raise it as a defence when necessary (Wandsworth London Borough Council v. Winder [1985]
A.C. 461; Smurthwaite v Hannay [1894] A.C. 494; Upjohn LJ in Re Pritchard (deceased) [1963];
Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).
In R v. Clarke and McDaid [2008] UKHL8 the House of Lords confirmed that there is no valid
trial if the bill/Indictment has not been signed by an appropriate officer of the Court because
Parliament intended that the Indictment be signed by a proper officer of the Court.
In Bellinger v Bellinger [2003] UKHL 21 the House of Lords confirmed that a void act is void
from the outset and no Court – not even the House of Lords (now the Supreme Court) – has
jurisdiction to give legal effect to a void act no matter how unreasonable that may seem, because
doing so would mean reforming the law which no Court has power to do because such power rests
only with Parliament. The duty of the Court is to interpret and apply the law not reform or create
it.
It is important to note that if a claim is invalid the plaintiff can start all over again unless he is
prevented from doing so due to limitation as in the case of Re Pritchard (deceased) [1963] or
estoppel – for example; where the Claimant applied to the Court for permission to correct/amend
the claim and permission was refused; or the plaintiff or his solicitor had been negligent in
ignoring a material fact when filing the invalid claim so that the plaintiff is estopped by the
principle that he should not be allowed a ‘second bite at the cherry’; and in the case of a criminal
trial if there has been a fundamental technical defect the Court can order a new trial (venire de
novo – may you cause to come anew).
Chronology of some case laws relating to void orders:
1888:
In Anlaby v. Praetorius (1888) Fry L.J. stated on the issue of void proceedings that:
(i) a plaintiff has no right to obtain any judgement at all.
1889:
In Fry v. Moore (1889) Lindley, L.J. said that:
(i) it might be difficult to draw the exact line between nullity and irregularity. If an order is
irregular it can be waived by the defendant but if it is null then it renders all that is done
afterwards void. In general one can easily see on which side of the line the particular case falls.
1921:
Crane v Director of Public Prosecutions [1921]:
(i) if an order is void ab initio (from the beginning) then there is no real order of the Court.
1943:
In Craig v Kanssen [1943]Lord Greene confirmed that:
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(i) an order which can properly be described as a nullity is something which the person affected
by it is entitled ex debitojustitiae to have set aside;
(ii) so far as procedure is concerned the Court in its ‘inherent jurisdiction’ can set aside its own
order and an appeal from the order is not necessary; and
(iii) if permission to appeal is requested and if out of time the Court should grant permission
because time does not run because the point is that the order is invalid and the person affected by
it has the right to have it set aside.
1953:
In Wiseman v Wiseman [1953] 1 All ER 601 – Lord Denning confirmed that:
(i) The issue of natural justice does not arise in a void order because it is void whether it causes a
failure of natural justice or not;
(ii) a claimant or defendant should not be allowed to abuse the process of Court by failing to
comply with a statutory procedure and yet keep the benefit of it and for that reason also a void act
is void even if it affects the rights of an innocent third party.
1961:
In MacFoy v United Africa Co Ltd. [1961]Lord Denning confirmed that:
(i) a void order is automatically void without more ado;
(ii) a void order does not have to be set aside by a Court to render it void although for
convenience it may sometimes be necessary to have the Court set the void order aside;
(iii) a void order is incurably void and all proceedings based on the void order/invalid claim are
also void.
1963:
In Re Pritchard (deceased) [1963]Upjohn LJ confirmed that:
(i) a fundamental defect in proceedings will make the whole proceedings a nullity;
(ii) a nullity cannot be waived;
(iii) it is never too late to raise the issue of nullity; and
(iv) a person affected by a void order has the right – ex debitojustitiae – to have it set aside.
1978:
In Firman v Ellis [1978]Lord Denning confirmed that:
(i) a void act is void ab initio
1979:
Lord Denning, in his book ‘The Discipline of Law’ – Butterworths 1979 – page 77, states:
(i) although a void order has no legal effect from the outset it may sometimes be necessary to have
it set aside because as Lord Radcliffe once said: “It bears no brand of invalidity on its forehead”.
1985:
Wandsworth London Borough Council v. Winder [1985] A.C. 461:
(i) a person may ignore a void claim and rely on it as a defence when necessary.
2003:
In Bellinger v Bellinger [2003] the House of Lords confirmed that:
(i) a void act is void from the outset; and
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(ii) no Court – not even the House of Lords (now the Supreme Court) has jurisdiction to give legal
effect to a void act no matter how unreasonable that may seem because doing so would mean
reforming the laws which no Court has power to do because such power rests only with
Parliament. The duty of the Court is to interpret and apply the law not reform it.
Conclusion based on the case laws referred to above:
(i) an application to have a void order set aside can be made to the Court which made the void
order;
(ii) the setting aside must be done under the Court’s inherent power to set aside its own void
order;
(iii) the Court does not have discretion to refuse the application because the person affected by the
void order has a right to have it set aside;
(iv) an appeal is not necessary because the order is already void;
(v) if permission to appeal is sought and if sought out of time permission should be given because
as the order is void time does not run; it is never too late to raise the issue of nullity; and the
person affected by the void order has a right to have it set aside;
(vi) a void order can be quashed or declared unlawful by Judicial Review where available and
where damages may also be claimed;
(vii) the whole proceedings is void if it was based on a void act;
(viii) a void order does not have to be obeyed because it has no legal effect from the beginning;
(ix) as it is never too late to raise the issue of nullity a person can ignore the void order and rely on
nullity as a defence when necessary;
(x) a void order is void even if the nullity is unjust or injustice occurs to an innocent third party;
(xi) an order of a Court of unlimited jurisdiction is only void if it can be expressly be shown that
the unlimited jurisdiction is limited in that situation, or the order is founded on an invalid claim or
void act;
(xii) no Court (not even the Supreme Court) has jurisdiction to give effect to a void act and the
duty of the Court is only to interpret and apply the law not to reform or create it as such power
rests only with Parliament.
© Shirley Lewald, – 10 July 2010
Updated: 6 February 2011

______________________________________________________________

Void Orders
(... with considerable thanks to Guy Taylor, and his copy of Archbold)

This is all largely nothing more than Common Sense, of course ..except for the constant and
consistent gross assumption that "Courts" and "the Judiciary" have 'power' over the
situation (i.e. as if they could make any Law). Law only comes from sworn Statements of
Truth and Juries ... not Judges of any kind, high or low.

("Law", coming from a Judge, is indistinguishable from "tyranny" ... unless it completely
matches Common Sense ... which everything below actually does ... in which case ... since it's
 4

nothing more than Common Sense ... why did it need a Judge to say it? We all have as much
Common Sense as anyone else).

It is, therefore, only the Common Sense expressed below, that has any LAWFUL validity,
and "deference + forelock-tugging to Courts/Judiciaries" is nothing more than "legal
bollox".

Pritchard (deceased) [1963] Upjohn LJ confirmed that:

(i) a fundamental defect in proceedings will make the whole proceedings a nullity;

(ii) a nullity cannot be waived;

(iii) it is never too late to raise the issue of nullity; and

(iv) a person affected by a void order has the right – ex debitojustitiae("as of Right" ... i.e. a
litigant is entitled to it merely upon the asking for it - as opposed to something which may be a
matter of judicial discretion or determination.) – to have it set aside.

A 'voidable' Order is one that could be voided if brought to the attention of a Higher Court.

1978: Although a void order has no legal effect from the outset, it may sometimes be necessary to
have it set aside because as Lord Radcliffe once said: “It bears no brand of invalidity on its
forehead”.

In Bellinger v Bellinger [2003] the House of Lords confirmed that:

(i) a void act is void from the outset; and

(ii) no Court – not even the House of Lords (now the Supreme Court) has jurisdiction to give legal
effect to a void act no matter how unreasonable that may seem because doing so would mean
reforming the laws which no Court has power to do because such power rests only with
Parliament. The duty of the Court is to interpret and apply the law not reform it(*).

[* Not true, of course: Only a Jury (in a Court de jure), or sworn Statements of Truth, have
the power to make Law. No? OK ... then what's the point of a Jury, then?]

A ‘void’ order or claim has no legal effect ab initio (from the beginning/outset) and therefore does
not need to be appealed, although for convenience it may sometimes be necessary to have it set
aside (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] and Firman v Ellis [1978]),
whereas a ‘voidable’ order or claim has legal effect unless and until it is set aside.

Therefore, while a void order or claim does not have to be obeyed, and can be ignored and its
nullity can be relied on as a defence when necessary (Wandsworth London Borough Council v.
Winder [1985] A.C. 461), a voidable order or claim has to be obeyed and cannot be ignored
unless and until it is set aside.
 5

A ‘void’ order can be set aside by the Court which made the order, because the Court has inherent
jurisdiction to set aside its own void order (Lord Greene in Craig v Kanssen [1943]), whereas a
‘voidable’ order can only be set aside by appeal to an appellate Court.

A void order is incurably void, and all proceedings based on the invalid claim or void act are also
void. Even a decision of the higher Courts (High Court, Court of Appeal and Supreme Court) will
be void if the decision is founded on an invalid claim or void act, because something cannot be
founded on nothing (Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).

It is never too late to raise the issue of nullity, and a person can ignore the void order or claim and
raise it as a defence when necessary (Wandsworth London Borough Council v. Winder [1985]
A.C. 461; Smurthwaite v Hannay [1894] A.C. 494; Upjohn LJ in Re Pritchard (deceased)
[1963]; Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).

Some of the case precedents relating to Void Orders:-

Crane v Director of Public Prosecutions [1921]: If an order is void ab initio (from the
beginning) then there is no real order of the Court.

In MacFoy v United Africa Co Ltd. [1961]Lord Denning confirmed that:

(i) a void order is automatically void without more ado;

(ii) a void order does not have to be set aside by a Court to render it void - although for
convenience it may sometimes be necessary to have the Court set the void order aside;

(iii) a void order is incurably void and all proceedings based on the void order/invalid claim are
also void.
 6

1. Jurisdiction can be challenged at any time and once challenged, cannot be assumed and
must be decided. Basso v. Utah Power& Light Co., 495 F 2d 906, 910.

2. “…there is, as well, no discretion to ignore that lack of jurisdiction.” Joyce v. US, 474 F2d
215

3. “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any
stage of the proceedings in which it becomes apparent that jurisdiction is lacking.”
Bradbury v. Dennis, 310 F.2d 73 (10th Cir. 1962)

4. When it clearly appears that the court lacks jurisdiction, the court has no authority to
reach the merits. In such a situation the action should be dismissed for want of
jurisdiction.” Melo v. United States, 505 F. 2d 1026

5. Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted.
Latana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150

6. No officer can acquire jurisdiction by deciding he has it. The officer, whether judicial or
ministerial, decides at his own peril.” Middleton v. Low (1866), 30 C. 596, citing Prosser
v.Secor(1849), 5 Barb.(N.Y) 607, 608

7. Where a court has jurisdiction, it has a right to decide any question which occurs in the
cause, and whether its decision be correct or otherwise, its judgments, until reversed, are
regarded as binding in every other court.But if it acts without authority, its judgments
and orders are regarded as nullities. They are not voidable, but simply void, and
form no bar to a remedy sought in opposition to them, even prior to a reversal.
They constitute no justification, and all persons concerned in executing such
judgments or sentences are considered in law as trespassers.Elliott v Peirsol, 1 Pet.
328, 340, 26 U.S. 328, 340, 7L.Ed. 164 (1828)

8. Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it
assumes to act, its proceedings are absolutely void in the fullest sense of the term.” Dillon v.
Dillon, 187 P 27

9. A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case
before a tribunal is its power to act, and a court must have the authority to decide that
question in the first instance.” Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8;
331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409

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