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 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]).
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 is void and the person affected by it has the right to have it set aside
(Lord Greene in Craig v Kanssen