Legality (2)

Edward Lui
Grounds of Review Related to Legality
(1) Relevancy
(2) Proper purpose
(3) Investigate
(4) Error of fact
(See the authorities cited below)

Note: It is important to recognise that these grounds can overlap. A single

decision can potentially engage multiple grounds of review
simultaneously.
Relevancy
“[T]he law requires, and the legislature must have intended, that the Director would
take into consideration relevant matters, and ignore irrelevant matters.”
(See C v Director of Immigration (2013) 16 HKCFAR 280, [22])

The question is: what counts as a relevant or irrelevant consideration?

The test – as set out later – will require applying the general principles of statutory
interpretation (for which see the last lecture).
Relevancy
“A useful summation of the law was given by Simon Brown LJ in R v Somerset CC, ex p
Fewings [1995] 3 All ER 20 at 32, [1995] 1 WLR 1037 at 1049, in which he identified
three categories of consideration, as follows:

‘[T]he judge speaks of “a decision-maker who fails to take account of all and only
those considerations material to his task”. It is important to bear in mind, however ...
that there are in fact three categories of consideration. First, those clearly (whether
expressly or impliedly) identified by the statute as considerations to which regard
must be had. Second, those clearly identified by the statute as considerations to which
regard must not be had. Third, those to which the decision-maker may have regard if
in his judgment and discretion he thinks it right to do so. There is, in short, a margin
of appreciation within which the decision-maker may decide just what considerations
should play a part in his reasoning process.’”
(See R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] 2 All ER 967,
[116], citing R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037, 1049-
1050)
Relevancy
“The three categories of consideration were identified by Cooke J…
‘What has to be emphasised is that it is only when the statute expressly or impliedly
identifies considerations required to be taken into account by the [relevant public
authority] as a matter of legal obligation that the court holds a decision invalid on the
ground now invoked. It is not enough that a consideration is one that may properly
be taken into account, nor even that it is one which many people, including the court
itself, would have taken into account if they had to make the decision.’
Cooke J further explained at 183 in relation to the third category of consideration
that, notwithstanding the silence of the statute, ‘there will be some matters so
obviously material to a decision on a particular project that anything short of direct
consideration of them by [the public authority] ... would not be in accordance with
the intention of the Act’.”
(See R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] 2 All ER 967,
[117], citing CREEDNZ Inc v Governor-General [1981] 1 NZLR 172, 183)
Relevancy
“[T]he test whether a consideration falling within the third category is ‘so
obviously material’ that it must be taken into account is the familiar
Wednesbury irrationality test (Associated Provincial Picture Houses Ltd v
Wednesbury Corpn [1947] 2 All ER 680, [1948] 1 KB 223…).”

(See R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] 2 All
ER 967, [119], citing Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223)
Relevancy
This is the Wednesbury test:
“[I]f a decision on a competent matter is so unreasonable that no
reasonable authority could ever have come to it, then the courts can
interfere.”

(See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]

1 KB 223, 230)

Note: This test will be discussed in a later topic.

Relevancy
“It is possible to subdivide the third category of consideration into two types of
case. First, a decision-maker may not advert at all to a particular consideration
falling within that category. In such a case, unless the consideration is
obviously material according to the Wednesbury irrationality test, the decision is
not affected by any unlawfulness…”

Secondly, a decision-maker may in fact turn their mind to a particular

consideration falling within the third category, but decide to give the
consideration no weight. As we explain below, this is what happened in the
present case. The question again is whether the decision-maker acts rationally
in doing so.”
(See R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] 2 All ER
967, [120]-[121], citing Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223)
Relevancy
“The final question to be asked is: if the TPB had taken both relevant and
irrelevant matters into consideration, how would that affect its decision? The
answer is that the decision is faulted. In Judicial Review of Administrative Action
(5th ed., 1995) by De Smith, Woolf and Jowell, para.6-086 the authors stated
that:

‘If the influence of irrelevant factors is established, it does not appear to be

necessary to prove that they were the sole or even the dominant influence. As a
general rule it is enough to prove that their influence was material or
substantial.’”
(See Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155,
[70], citing De Smith et al Sweet & Maxwell 1995, [6-086])
Relevancy
“I have already held that the TPB had relied on both financial and
planning considerations as the basis of its decision. However, I am not
convinced that the financial consideration did not have a substantial or
material influence upon the decision…Put in another way, I cannot say
that without the financial considerations, the TPB would have reached
the same conclusion based solely on the planning consideration. This
being the case. I do not consider the two bases of the decision to be so
distinct and separate that I can say with confidence that the decision was
valid based solely on planning grounds.”

(See Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD
155, [77])
Proper Purpose
“Parliament must have conferred the discretion with the intention that it
should be used to promote the policy and objects of the Act; the policy
and objects of the Act must be determined by construing the Act as a
whole and construction is always a matter of law for the court…if the
Minister…so uses his discretion as to thwart or run counter to the policy
and objects of the Act, then our law would be defective if persons
aggrieved were not entitled to the protection of the court. So it is
necessary first to construe the Act.”
(See Padfield v Minister of Agriculture [1968] AC 997, 1030)

Note how statutory interpretation is clearly relevant to applying Padfield,

according to Lord Reid himself.
Proper Purpose
“It has long been a basic principle of administrative law that a
discretionary power must not be used to frustrate the object of the Act
which conferred it… The importance of Padfield’s case [1968] AC 997 was
its reassertion that, even where a statute confers a discretionary power, a
failure to exercise the power will be unlawful if it is contrary to
Parliament’s intention.”

(See M v Scottish Ministers [2012] 1 WLR 3386, [42], [47], citing Padfield v
Minister of Agriculture [1968] AC 997)
Proper Purpose
“In the event, the Ministers’ failure to exercise their power to make the necessary
regulations…has had the result that, although sections 268 to 271 are technically in
force, they have no more practical effect today than they had on the date, more than
nine years ago, when the 2003 Act received Royal Assent. The Ministers' failure to
make the necessary regulations has thus thwarted the intention of the Scottish
Parliament. It therefore was, and is, unlawful.

In the present case, the exercise of the power to make regulations by 1 May 2006 was
necessary in order to bring Chapter 3 of Part 17 of the 2003 Act into effective
operation by that date, as the Scottish Parliament intended. The Ministers were
therefore under an obligation to exercise the power by that date.”
(See M v Scottish Ministers [2012] 1 WLR 3386, [43], [47], citing Mental Health (Care
and Treatment) (Scotland) Act 2003)
Proper Purpose
“It is a general principle of administrative law that a public body must
exercise a statutory power for the purpose for which the power was
conferred by Parliament, and not for any unauthorised purpose. An
unauthorised purpose may be laudable in its own right, yet still
unlawful…Where a statutory power is exercised both for the purpose for
which it was conferred and for some other purpose, the public body will
have acted unlawfully unless the authorised purpose was its dominant
purpose.”

(See R (Attfield) v Barnet London Borough Council [2013] PTSR 1559, [38])
Investigation
“[T]he question for the court is, did the Secretary of State ask himself the
right question and take reasonable steps to acquaint himself with the
relevant information to enable him to answer it correctly?”

(See Secretary of State for Education and Science v Tameside Metropolitan

Borough Council [1977] AC 1014, 1065)
Investigation
“A public body has a duty to carry out a sufficient inquiry prior to
making its decision. This is sometimes known as the Tameside duty since
the principle derives from Lord Diplock’s speech in…Tameside…”

(See R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 3 All
ER 261, [99], citing Secretary of State for Education and Science v Tameside
Metropolitan Borough Council [1977] AC 1014, 1065)
Investigation
“(1) The obligation upon the decision-maker is only to take such steps to
inform himself as are reasonable.
(2) Subject to a Wednesbury challenge (see Associated Provincial Picture Houses
Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223), it is for the
public body, and not the court to decide upon the manner and intensity
of inquiry to be undertaken…”

(See R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 3 All ER
261, [100], citing Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223 and R (Khatun) v Newham London Borough
Council [2005] QB 37, [35])
Investigation
“(3) The court should not intervene merely because it considers that further
inquiries would have been sensible or desirable. It should intervene only if no
reasonable authority could have been satisfied on the basis of the inquiries
made that it possessed the information necessary for its decision…

The Tameside test can be formulated as follows: Could a rational decision-

maker, in this statutory context, take this decision without considering these
particular facts or factors?...”
(See R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 3 All ER 261,
[100], [139], citing R v Kensington and Chelsea Royal London Borough Council, ex
parte Byanai (1990) 22 HLR 406, 415)
Investigation
“The court engages in a two-stage inquiry. First, the court must establish
what material was before the decision-maker and what he or she knew
when he made the decision. Second, the court must decide whether no
reasonable decision-maker, possessed of that material, could have
proceeded to make a decision without making further inquiries…”

(See R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 3 All
ER 261, [141]
Investigation
“But, I agree…that the intended reliance upon a ‘Tameside duty’ as such
is something of a red herring. Such a duty as it is usually understood
would not ordinarily be thought to arise in the kind of adversarial
proceedings as occurred before the Joint Tribunal. Therefore, in so far as
there was intended to be a suggestion on the part of the Solicitor that
some sort of inquisitorial steps should have been taken by the Joint
Tribunal, that suggestion is to be rejected.”

(See Siu v Joint Tribunal of Bar Council and Law Society [2022] 4 HKLRD
276, [52])
Investigation
“The Housing Ordinance (Cap.283) does not impose any duty on the
Panel to conduct an inquiry on its own volition. Its function is simply to
hear and decide an appeal under s.20 of the Housing Ordinance. There
is obviously no duty on the part of the Panel to direct further evidence to
be obtained when a party failed to adduce sufficient evidence to support
his own ground of appeal.

[T]he appeal process is primarily an adversarial one. In a situation like the

present one, we do not think it is reasonably arguable that the Panel had
a duty to intimate to the applicant that the reports and the standards he
relied upon were inadequate to prove his case.”
(See Deng v Hong Kong Housing Authority [2017] 4 HKLRD 73, [27], citing
Housing Ordinance (Cap 283))
Error of Fact
There are four overlapping ways in which an error of fact may constitute a
ground of review:
(a) Through a finding of irrationality;
(b) Through the principle in E v Secretary of State for the Home Department
[2004] QB 1044;
(c) Through the principle in R (A) v Croydon London Borough Council [2009] 1
WLR 2557; and
(d) Through the doctrine of jurisdictional fact.

(See Craig Sweet & Maxwell 2021, [17-014]; Hare et al Sweet & Maxwell, [6-
028], [6-032], [6-039])
Error of Fact: Irrationality
“A decision will be unlawful if there is…‘no evidence’ for a finding upon which a
decision depends or where the evidence, taken as a whole, is not reasonably capable
of supporting a finding of fact. Such decisions may be impugned as ‘irrational’ or
'perverse’, provided that this was a finding as to a material matter.”
(See Hare et al Sweet & Maxwell 2023, [6-039])

“[I]t is for the public authority to determine on the information available to it the
facts which are relevant to the existence and exercise of its powers, subject to review
by a court according to the usual rationality standard. The court has a supervisory
role only.”
(See Re McAleenon [2024] 3 WLR 803, [40])
Note: This obviously is related to the topic of rationality review.
Error of Fact: E [2004] QB 1044
“In our view, the time has now come to accept that a mistake of fact
giving rise to unfairness is a separate head of challenge…First, there must
have been a mistake as to an existing fact, including a mistake as to the
availability of evidence on a particular matter. Secondly, the fact or
evidence must have been 'established’, in the sense that it was
uncontentious and objectively verifiable. Thirdly, the appellant (or his
advisers) must not been have been responsible for the mistake. Fourthly,
the mistake must have played a material (not necessarily decisive) part in
the tribunal’s reasoning.”

(See E v Secretary of State for the Home Department [2004] QB 1044, [66])
Error of Fact: E [2004] QB 1044
But note a major limitation, arising from the first two conditions:
“[T]he first and second criteria from E will not be made out where there is an
ongoing dispute between the parties as to the relevant fact…This is a significant
constraint on the availability of material mistake of fact as a ground of review.”
(See Hare et al Sweet & Maxwell 2023, [6-036])

“Without more the requirement of an uncontentious point is odd. Often an

error of fact is alleged when there are no other legal disputes apart from the
factual determination. But then the very existence of active, adversarial
litigation would show that the factual question is in dispute.”
(See Ryu PL 2024, 410)
Error of Fact: E [2004] QB 1044
“Correlatively, the criteria have been found to be satisfied in cases in
which the public authority effectively concedes an error…However, the E
principle remains useful in at least two categories of case. First, where the
decision-maker acknowledges that it had made a factual error but lacks,
or believes itself to lack, the statutory power to reopen the decision.
Second, where the decision-maker concedes a factual error but refuses to
depart from its decision either because it maintains the applicant was at
fact in inducing the error or, more commonly, because it asserts that the
error did not influence its reasoning.”
(See Hare et al Sweet & Maxwell 2023, [6-036])
Error of Fact: E [2004] QB 1044
On the third condition:
“The third E criterion requires that the applicant not be responsible for
the mistake…Accordingly, applicants who fail without reasonable excuse
to provide the relevant evidence or to make use of a reasonable
opportunity to draw the decision-maker’s attention to an error, may later
be prevented from reliance on E.”

(See Hare et al Sweet & Maxwell 2023, [6-037])

Error of Fact: E [2004] QB 1044
On the fourth condition:
“[A] decision will be unlawful due to reliance on a factual error only if
that error played a material role in the decision-making… For example, a
planning inspector’s unawareness of historic noise complaints did not
render a grant of planning permission unlawful because, given the
inspector’s detailed consideration of the noise impact, the decision
‘would clearly have been the same.’”
(See Hare et al Sweet & Maxwell 2023, [6-038], citing Speers v Secretary of
State for Communities and Local Government [2014] EWHC 4121 (Admin),
[48])
Error of Fact: A [2009] 1 WLR 2557
Exceptionally (cf. Re McAleenon, cited above), the legislation may intend that
the courts may determine the question of fact itself:

There may be questions “about the respective roles of public authorities and
the courts when determining whether the conditions exist for the exercise of a
statutory power or duty…We are deciding where Parliament intended that the
lines be drawn under the Children Act 1989. The task in all these cases is to
decide what Parliament intended.”
(See R (A) v Croydon London Borough Council [2009] 1 WLR 2557, [21], [24])
Error of Fact: A [2009] 1 WLR 2557
In A, the statute provides that “Every local authority shall provide
accommodation for any child in need within their area…”: see Children
Act 1989, s 20(1). The court reasoned:

“The 1989 Act draws a clear and sensible distinction between different
kinds of question. The question whether a child is ‘in need’ requires a
number of different value judgments. What would be a reasonable
standard of health or development for this particular child? How likely is
he to achieve it? What services might bring that standard up to a
reasonable level? What amounts to a significant impairment of health or
development? How likely is that? What services might avoid it?”
(See R (A) v Croydon London Borough Council [2009] 1 WLR 2557, [26])
Error of Fact: A [2009] 1 WLR 2557
“[I]t is entirely reasonable to assume that Parliament intended such
evaluative questions to be determined by the public authority, subject to
the control of the courts on the ordinary principles of judicial review.
Within the limits of fair process and ‘Wednesbury reasonableness’ there
are no clear cut right or wrong answers.”

(See R (A) v Croydon London Borough Council [2009] 1 WLR 2557, [26],
citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223)
Error of Fact: A [2009] 1 WLR 2557
“But the question whether a person is a ‘child’ is a different kind of question.
There is a right or a wrong answer. It may be difficult to determine what the
answer is…That does not prevent them from being questions for the courts
rather than for other kinds of decision-makers. In section 17(10) a clear
distinction is drawn between whether the person is a ‘child’ and whether that
child is to be ‘taken to be’ in need within the meaning of the Act. ‘Taken to be’
imports an element of judgment…which Parliament may well have intended to
be left to the local authority rather than the courts…I reach those conclusions
on the wording of the 1989 Act…

The result is that if live issues remain about the age of a person seeking
accommodation under section 20(1) of the 1989 Act, then the court will have
to determine where the truth lies on the evidence available.”
(See R (A) v Croydon London Borough Council [2009] 1 WLR 2557, [27]-[28], [46]
citing Children Act 1989, s 17(10))
Error of Fact: A [2009] 1 WLR 2557
The effect of A:
“An asylum claimant who gives his age as under 18 is in practice likely also to
be a claimant for local authority support under the Children Act 1989…there
will be an age assessment by the social services department in any case of
doubt. If the claimant is assessed as being over 18…any legal challenge is likely
to be…against…the local authority…In such a case the court would have
jurisdiction under the Croydon case [2009] 1 WLR 2557 to determine the
question of age as a primary fact-finder under the Children Act 1989.”
(See R (AA (Afghanistan)) v Secretary of State for the Home Department [2013] 1
WLR 2224, [51])
Error of Fact: A [2009] 1 WLR 2557
How A reached its conclusion is a bit unclear. It will be difficult to tell
how this principle applies in advance, and it can only be applied on a
case-by-case basis by reference to the principles of statutory interpretation
(discussed in the last lecture).

I will suggest reasoning by reference to A, in trying to apply this principle.

In other words: you are recommended to read A itself, and ask yourself
whether the scenario you are facing is analogous or disanalogous to A
itself. If you do conclude that a scenario is only in part analogous to A,
this is something you should well explain and point out.
Error of Fact: Jurisdictional Fact
“It was accepted that review could lie for jurisdictional fact. These were facts
that related to the existence of the public body’s power over the relevant
area…A classic factual precondition is that a person should be of a particular
age to qualify for a benefit…”
(See Craig Sweet & Maxwell 2021, [17-006])

“There is an important exception. Namely, where legislation is interpreted as

creating a ‘jurisdictional’ fact. In such cases, courts will consider the primary
evidence afresh to make their own findings of fact.”
(See Hare et al Sweet & Maxwell 2023, [6-028])
Error of Fact: Jurisdictional Fact
The key question is then what a jurisdictional fact is:
“Where the charge laid before the magistrate, as stated in the
information, does not amount in law to the offence over which the
statute gives him jurisdiction, his finding the party guilty by his
conviction in the very terms of the statute would not avail to give him
jurisdiction; the conviction would be bad on the face of the proceedings,
all being returned before us…a charge has been presented to the
magistrate over which he had no jurisdiction; he had no right to
entertain the question, or commence an inquiry into the merits; and his
proceeding to a conclusion will not give him jurisdiction…”

(See R v Bolton 113 ER 1054, 1057)

Error of Fact: Jurisdictional Fact
“But, where a charge has been well laid before a magistrate, on its face bringing
itself within his jurisdiction, he is bound to commence the inquiry: in so doing
he undoubtedly acts within his jurisdiction: but in the course of the enquiry,
evidence being offered for and against the charge, the proper, or it may be the
irresistible, conclusion to be drawn may be that the offence has not been
committed...Now to receive affidavits for the purpose of shewing this is clearly
in effect to shew that the magistrate's decision was wrong if he affirms the
charge, and not to shew that he acted without jurisdiction: for they would
admit that, in every stage of the inquiry up to the conclusion, he could not but
have proceeded, and that if he had come to a different conclusion his judgment
of acquittal would have been a binding judgment, and barred another
proceeding for the same offence. Upon principle, therefore, affidavits cannot
be received under such circumstances. The question of jurisdiction does not
depend on the truth or falsehood of the charge, but upon its nature: it is
determinable on the commencement, not at the conclusion, of the inquiry:
and affidavits, to be receivable, must be directed to what appears at the former
stage, and not to the facts disclosed in the progress of the inquiry.”
(See R v Bolton 113 ER 1054, 1057)
Error of Fact: Jurisdictional Fact
“But of course it still requires us to decide which questions are to be
regarded as setting the limits to the jurisdiction of the public authority
and which questions simply relate to the exercise of that jurisdiction. This
too must be a question of statutory construction, although Wade and
Forsyth on Administrative Law 9th ed (2004), p 257 suggest that ‘As a
general rule, limiting conditions stated in objective terms will be treated
as jurisdictional’.”

(See R (A) v Croydon London Borough Council [2009] 1 WLR 2557, [31],
citing HWR Wade and CF Forsyth, Administrative Law (9th edn, OUP
2004), 257)
Error of Fact: Jurisdictional Fact
“However, as already explained, the Act does draw a distinction between a
‘child’ and a ‘child in need’ and even does so in terms which suggest that
they are two different kinds of question. The word ‘child’ is undoubtedly
defined in wholly objective terms (however hard it may be to decide upon
the facts of the particular case). With a few limited extensions, it defines
the outer boundaries of the jurisdiction of both courts and local
authorities under the 1989 Act. This is an Act for and about children. If
ever there were a jurisdictional fact, it might be thought, this is it.”
(See R (A) v Croydon London Borough Council [2009] 1 WLR 2557, [32])
Ouster Clauses
There is a very big academic topic, but here we will just cover the basics.

“The supervisory jurisdiction…can only be ousted ‘by the most clear and
explicit words’: see per Denning LJ in R v Medical Appeal Tribunal, Ex p
Gilmore [1957] 1 QB 574, 583.”

(See R (Cart) v Upper Tribunal [2010] 2 WLR 1012, [31], citing R v Medical
Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574, 583)
Ouster Clauses
Section 4(4) Foreign Compensation Act 1950: “The determination by the
commission of any application made to them under this Act shall not be
called in question in any court of law.”

“Undoubtedly such a provision protects every determination which is not

a nullity. But I do not think that it is necessary or even reasonable to
construe the word ‘determination’ as including everything which
purports to be a determination but which is in fact no determination at
all.”
(See Anisminic v Foreign Compensation Commission [1969] 2 AC 147, 170)
Ouster Clauses
“[T]here are many cases where, although the tribunal had jurisdiction to
enter on the inquiry, it has done or failed to do something in the course
of the inquiry which is of such a nature that its decision is a nullity. It
may have given its decision in bad faith. It may have made a decision
which it had no power to make. It may have failed in the course of the
inquiry to comply with the requirements of natural justice. It may in
perfect good faith have misconstrued the provisions giving it power to act
so that it failed to deal with the question remitted to it and decided some
question which was not remitted to it. It may have refused to take into
account something which it was required to take into account. Or it may
have based its decision on some matter which, under the provisions
setting it up, it had no right to take into account.”
(See Anisminic v Foreign Compensation Commission [1969] 2 AC 147, 171)
Ouster Clauses
“…[T]he concept of ‘nullity’ for these purposes is extended to any
decision which is erroneous in law, and in that sense legally invalid. If
one applies that approach to section 67(8)…the exclusion applies, not to
all determinations, awards or other decisions whatever their status, but
only to those which are 'legally valid’ in that sense…

The exclusion applies only to a legally valid decision relating to

jurisdiction…[A] decision which is vitiated by error of law…is no decision
at all.”
(See R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491,
[107], [109])
 Ouster Clauses
There is an alternative line of case law concerning time limits for bringing a
claim for judicial review (i.e. a time limit is specified, after which judicial
review is precluded by statute), the most famous of which is Smith v East Elloe
Rural District Court [1956] AC 736.

“I think that Smith v. East Elloe Rural District Council must still be regarded as
good and binding on this court. It is readily to be distinguished from the
Anisminic case [1969] 2 A.C. 147…a person aggrieved should have a remedy.
But he must come promptly. He must come within six weeks. If he does so,
the court can and will entertain his complaint. But if the six weeks expire
without any application being made, the court cannot entertain it
afterwards.”
(See R v Secretary of State for the Environment, ex parte Ostler [1977] 1 QB 122,
135-136)
Ouster Clauses
Both Anisminic and the Smith line of case law (e.g. Ostler) were approved in
Bahadur v Director of Immigration [2001] 3 HKLRD 225.

There are good reasons to critique Anisminic: it is a relatively artificial doctrine,

and also cannot be readily reconciled with the Smith line of case law: see R
(Privacy International) v Investigatory Powers Tribunal [2020] AC 491, [128]-[129].

There may also be good reasons in principle for an ouster clause to exist: cf. R
(Cart) v Upper Tribunal [2012] 1 AC 663, [89]-[92]. For a more nuanced view see,
e.g., Wan AsJCL 2024.
Bibliography (Academic Literature)
Paul Craig, Administrative Law (9th edn, Sweet & Maxwell 2021)

Stanley de Smith, Lord Woolf and Jeffrey Jowell, Judicial Review of

Administrative Action (5th edn, Sweet & Maxwell, 1995) (De Smith et al
Sweet & Maxwell 1995)
Bibliography (Academic Literature)
Ivan Hare, Catherine Donnelly, Joanna Bell and Robert Carnwath, De
Smith’s Judicial Review (9th edn, Sweet & Maxwell 2023) (Hare et al Sweet
& Maxwell 2023)

Angelo Ryu, ‘Is the Error of Fact Doctrine Based on a Mistake?’ [2024] PL
406 (Ryu PL 2024)

Trevor TW Wan, ‘Unshackling from Shadows of the Anisminic

Orthodoxy: Reconceptualising Approaches to Ouster Clauses in Hong
Kong’ (2024) 19 AsJCL 369 (Wan AsJCL 2024)