THE VOID ORDER
by
Shirley Lewald
Solicitor Advocate
Higher Rights (Civil and Criminal Courts),
MSc (Psych), PGDip (SocSc), PGCPSE, LLB (Hons)
The interesting and important nature of a ‘void’ order of a Court is not fully understood
and appreciated in England and this article is written to assist the understanding of a ‘void’
order and to assist legal professionals in any concerns they may have in submitting to a
Court that its order is void, if indeed it is void.
In Anlaby v. Praetorius (1888) 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”.
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.
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.
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).