- VOID PROCEEDINGS and VOID ORDERS Material
- By Alberthewolf
- 13/12/2016 Make a Comment
- Contributed by: Karl ( 1 article in 2016 )
This is some useful research material for anyone wishing to unleash a Void Order or in any event for rendering a case a nullity where there is compelling evidence for declaring that a court case was either a nullity or void ‘ab initio’. A order can be void for several reasons such as for example where to ‘fraud upon the court’ had occurred with false instruments (documents used against the victim) purported to be produced by the court which in reality were produced by someone else (by either people in the legal profession or by the ‘private’ shadow court (people working within the court itself) – MORE TO COME SOON!
CASE REFERENCE
This is a useful case with cut clear claim where it occurred ‘fraud upon the court’:
Islamic Investment Company of the Gulf (Bahama) LTD v Symphony Gems NV, Rajesh Kishor Metha and Vijay Kumar Kirtilal Metha
CASE LAW – VOID AB INITIO PROCEEDINGS
There are No time limits on 'void judgments'. I rely on Wandsworth London Borough Council v. Winder [1985] A.C. 461 where it was established that (i) a person may ignore a void claim and rely on it as a defence when necessary.
GENERAL AB INITIO
1. Director of Public Prosecutions v Hutchinson [1990] 2 AC 783 ,where Lord Lowry said 'the basic principle is that an ultra vires enactment, such as a byelaw, is void ab initio and of no effect'.
2. A void order does not have to be obeyed because, for example, in Crane v Director of Public Prosecutions [1921] it was stated that if an order is void ab initio (from the beginning) then there is no real order of the Court.
3. In Firman v Ellis [1978] Lord Denning confirmed that: (i) a void act is void ab initio
GENERAL – NULLITY 1. In Fry v. Moore (1889), 23 Q.B.D. 395 Lindley, L.J. said of void and irregular proceedings that it may be difficult to draw the exact line between nullity and irregularity. If a procedure is irregular it can be waived by the defendant but if it is null it cannot be waived and all that is done afterwards is void; in general, one can easily see on which side of the line the particular case falls.
GENERAL – COURT POWER AND JURISDICTION
1. - 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])
2. - A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1) or from a ‘without jurisdiction’/ultra vires act of a public body or judicial office holder (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736).
3. - 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.
4. - In Anlaby v. Praetorius (188 20 Q.B.D. 764 at 769 Fry L.J. stated on the issue of void proceedings that: “A plaintiff has no right to obtain any judgement at all”.
5. - A ‘without jurisdiction’/ultra vires act is any act which a Court did not have power to do (Lord Denning in Firman v Ellis [1978]). per Lord Diplock (‘[The case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, [1969] 1 All ER 208, HL] is a legal landmark; it has made possible the rapid development in England of a rational and comprehensive system of administrative law on the foundation of the concept of ultra vires’;
6. - 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”.
GENERAL VS JUSTICE 2.
1. - In Re Pritchard (deceased) [1963] Upjohn LJ confirmed that: a fundamental defect in proceedings will make the whole proceedings a nullity; a nullity cannot be waived; it is never too late to raise the issue of nullity; and a person affected by a void order has the right – ex debito justitiae – to have it set aside.
2. - The decided cases make it clear that an unlawful administrative act is no act in law. Lord Reid in Ridge v Baldwin [1964] AC 40 stated: 'Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void, and that was expressly decided in Wood v Woad (1874) LR 9 Ex I 90. I see no reason to doubt these authorities'.
3. - 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]).
GENERAL X PROCEDURAL FAILURE
1. - A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1) or from a ‘without jurisdiction’/ultra vires act of a public body or judicial office holder (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736).
2. - A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494).
3. - A person affected by both a void or voidable order has the right – ex debito justitiae – 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]).
4. - In Craig v Kanssen [1943] Lord Greene confirmed that: (i) an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae 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.
5. - 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. - 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.
7. - A Void Order Is Incurably Void And All Proceedings Based On The Void Order/Invalid Claim Are Also Void. "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]
8. - 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])
9. - A person affected by both a void or voidable order has the right – ex debito justitiae – 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]).
10. - 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).
11. - A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494).
12. - In Peacock v Bell and Kendal [1667] 85 E.R. 81, pp.87:88 it was held that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly stated.
USE FOR DEFENDING VOID ORDER
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.
MATERIAL USEFUL FOR TRANSFER TO HIGH COURT
County courts County courts, on the other hand, have purely statutory powers derived from the County Courts Act 1984. The county court does not have power to punish for contempt in relation to a false statement of truth (CPR 32.14) or a false disclosure statement (CPR 31.23): in simple terms: the Act does not give it such a power.
A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in a county court may be made only:
(a) with the permission of a single judge of the Queen's Bench Division; or
(b) by the Attorney General: CPR 81.18(3) (see para CPR 81.18).
A county court has power under s 38 of the County Courts Act 1984 to punish for civil contempt but has no statutory power to deal with criminal contempts (R v Lefroy (1893) LR 8 QB 134; Bush v Green [1985] 3 All ER 721, [1985] 1 WLR 1143, CA; Manchester City Council v McCann [1999] QB 1214, CA), except those covered specifically by the Act of 1984.
If anyone realises that the proceedings were conducted in abuse of process than this must be notified immdiatly to the main court manager with LEGAL NOTICE Letter
TO VOID PROCEEDINGS AS ULTRA VIRES ‘AB INITIO’
DISPUTING JURISDICTION UNDER PART 11 OF THE CPR RULES
In the assumption you have enough evidence of course.....
....more to come
CASE REFERENCE
This is a useful case with cut clear claim where it occurred ‘fraud upon the court’:
Islamic Investment Company of the Gulf (Bahama) LTD v Symphony Gems NV, Rajesh Kishor Metha and Vijay Kumar Kirtilal Metha
CASE LAW – VOID AB INITIO PROCEEDINGS
There are No time limits on 'void judgments'. I rely on Wandsworth London Borough Council v. Winder [1985] A.C. 461 where it was established that (i) a person may ignore a void claim and rely on it as a defence when necessary.
GENERAL AB INITIO
1. Director of Public Prosecutions v Hutchinson [1990] 2 AC 783 ,where Lord Lowry said 'the basic principle is that an ultra vires enactment, such as a byelaw, is void ab initio and of no effect'.
2. A void order does not have to be obeyed because, for example, in Crane v Director of Public Prosecutions [1921] it was stated that if an order is void ab initio (from the beginning) then there is no real order of the Court.
3. In Firman v Ellis [1978] Lord Denning confirmed that: (i) a void act is void ab initio
GENERAL – NULLITY 1. In Fry v. Moore (1889), 23 Q.B.D. 395 Lindley, L.J. said of void and irregular proceedings that it may be difficult to draw the exact line between nullity and irregularity. If a procedure is irregular it can be waived by the defendant but if it is null it cannot be waived and all that is done afterwards is void; in general, one can easily see on which side of the line the particular case falls.
GENERAL – COURT POWER AND JURISDICTION
1. - 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])
2. - A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1) or from a ‘without jurisdiction’/ultra vires act of a public body or judicial office holder (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736).
3. - 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.
4. - In Anlaby v. Praetorius (188 20 Q.B.D. 764 at 769 Fry L.J. stated on the issue of void proceedings that: “A plaintiff has no right to obtain any judgement at all”.
5. - A ‘without jurisdiction’/ultra vires act is any act which a Court did not have power to do (Lord Denning in Firman v Ellis [1978]). per Lord Diplock (‘[The case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, [1969] 1 All ER 208, HL] is a legal landmark; it has made possible the rapid development in England of a rational and comprehensive system of administrative law on the foundation of the concept of ultra vires’;
6. - 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”.
GENERAL VS JUSTICE 2.
1. - In Re Pritchard (deceased) [1963] Upjohn LJ confirmed that: a fundamental defect in proceedings will make the whole proceedings a nullity; a nullity cannot be waived; it is never too late to raise the issue of nullity; and a person affected by a void order has the right – ex debito justitiae – to have it set aside.
2. - The decided cases make it clear that an unlawful administrative act is no act in law. Lord Reid in Ridge v Baldwin [1964] AC 40 stated: 'Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void, and that was expressly decided in Wood v Woad (1874) LR 9 Ex I 90. I see no reason to doubt these authorities'.
3. - 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]).
GENERAL X PROCEDURAL FAILURE
1. - A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1) or from a ‘without jurisdiction’/ultra vires act of a public body or judicial office holder (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736).
2. - A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494).
3. - A person affected by both a void or voidable order has the right – ex debito justitiae – 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]).
4. - In Craig v Kanssen [1943] Lord Greene confirmed that: (i) an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae 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.
5. - 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. - 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.
7. - A Void Order Is Incurably Void And All Proceedings Based On The Void Order/Invalid Claim Are Also Void. "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]
8. - 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])
9. - A person affected by both a void or voidable order has the right – ex debito justitiae – 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]).
10. - 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).
11. - A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494).
12. - In Peacock v Bell and Kendal [1667] 85 E.R. 81, pp.87:88 it was held that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly stated.
USE FOR DEFENDING VOID ORDER
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.
MATERIAL USEFUL FOR TRANSFER TO HIGH COURT
County courts County courts, on the other hand, have purely statutory powers derived from the County Courts Act 1984. The county court does not have power to punish for contempt in relation to a false statement of truth (CPR 32.14) or a false disclosure statement (CPR 31.23): in simple terms: the Act does not give it such a power.
A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in a county court may be made only:
(a) with the permission of a single judge of the Queen's Bench Division; or
(b) by the Attorney General: CPR 81.18(3) (see para CPR 81.18).
A county court has power under s 38 of the County Courts Act 1984 to punish for civil contempt but has no statutory power to deal with criminal contempts (R v Lefroy (1893) LR 8 QB 134; Bush v Green [1985] 3 All ER 721, [1985] 1 WLR 1143, CA; Manchester City Council v McCann [1999] QB 1214, CA), except those covered specifically by the Act of 1984.
If anyone realises that the proceedings were conducted in abuse of process than this must be notified immdiatly to the main court manager with LEGAL NOTICE Letter
TO VOID PROCEEDINGS AS ULTRA VIRES ‘AB INITIO’
DISPUTING JURISDICTION UNDER PART 11 OF THE CPR RULES
In the assumption you have enough evidence of course.....
....more to come
Source: https://www.getoutofdebtfree.org/forum/viewtopic.php?f=10&t=104956
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