9 Jud. Rev. 36 (2004)
Material Error of Fact - Where Are We Now

handle is hein.journals/judire9 and id is 36 raw text is: [2004] JR

Material Error of Fact - Where Are We
David Blundell
Landmark Chambers
1. It is central to the jurisdiction of the High Court in judicial review proceedings that its
function is to review the legality of the decision-making process; it may not re-
examine the factual basis of a decision or weigh in the balance the particular merits of
the case in question. In view of this fundamental principle, the courts have tradition-
ally been reluctant to review a decision on the ground that it was reached on the basis
of a fundamental error of fact.
2. Notwithstanding the natural reticence of the courts to step into the arena of reviewing
decisions for factual errors, the House of Lords seemed to take a step closer to
establishing a true doctrinal basis for this potential ground of review in R v Criminal
Injuries Compensation Board ex p. A [1999] 2 AC 330. However, the decision in ex p. A was
eventually reached on the alternative basis of a breach of the rules of natural justice,
and subsequent decisions are far from clear about the existence of the error of fact
ground of review. At present, the existence and operation of the doctrine remain
unclear, but certain principles may be extracted from the case law.'
The modern doctrine
3. The possibility of judicial review lying for material error of fact was mentioned in
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977]
AC 1014, where it was described by Scarman LJ in the Court of Appeal as misunder-
standing or ignorance of an established and relevant fact (at p. 1030). The decision was
upheld by the House of Lords, and although it did not explicitly approve Scarman LJ's
proposition, it did endorse the role of the court in verifying that precedent facts existed
and had been taken properly into account in reaching a decision.2
4. Such a jurisdiction was doubted in R v Hillingdon London Borough Council ex p. Puhlhofer
[1986] AC 484. However, although Lord Brightman considered (at p. 518) that where
the existence of a fact was left to the judgment and discretion of a public body it was
the duty of the court to leave the decision of that fact to the public body, intervention
was possible in the case of conscious or unconscious perversity.3
1 This article is concerned with recent judicial treatment of the issue in the wake of the ex p. A decision. Detailed
accounts of the origins of the material error of fact doctrine have already been the subject of academic com-
mentary and attention by other authors. See, for example, Demetriou and Houseman, Review for Error of Fact
- A Brief Guide [1997] JR 27; Kent, Widening the Scope of Review for Error of Fact [1999] JR 239; Jones,
Mistake of Fact in Administrative Law [1990] PL 307; Yeats, Findings of Fact: The Role of the Courts, in
Richardson and Glenn, Administrative Law and Government Action: The Courts and Alternative Mechanisms of
Review (Clarendon Press, 1994).
2 See, in particular, Lord Wilberforce at p. 1047 and Lord Diplock at p. 1065.
3 See, further, the recent case of Moyna v Secretary of Statefor Work and Pensions [2003] UKHL 44 [2003] 1 WLR 1929.
In revisiting the famous remarks of Lord Reid in Cozens v Brutus [1973] AC 854 at 861, on the distinction between
questions of fact and questions of law, Lord Hoffmann noted that an appeal court hearing appeals only
on points of law would not interfere with a finding of fact unless it fell outside the bounds of reasonable
judgment (at p. 1935).

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