Contemporary English administrative law has got itself in a mess over the distinction between
errors of law (generally reviewable) and errors of fact (generally not renewable). Perhaps the low point came in R (Jones) v First-tier Tribunal [2013] 2 AC 48, where the Supreme Court suggested the distinction between the two types of error can be manipulated by the courts to control the availability of judicial review. As such, a factual finding made by an administrator has become a version of the famous duck-rabbit illusion: whether a court sees an error of law or error of fact depends on its psychological predisposition to review.
Looking back over the early history of English administrative law, the courts seemed to have less of a problem in review for error of fact. Whether an error made by an administrator was of law or of fact didn’t really matter that much. The key issue was what the significance of that error was to the decision-maker’s power to act.
At a time when legal historians and contemporary public law scholars are increasingly turning to the history of administrative law as a site for productive study, this paper seeks to review the history of error of fact review from the middle of 17th century through to the early part of the 20th century. It will chart developments in the jurisprudence of the Court of King’s Bench when reviewing factual errors under the prerogative writs, especially certiorari and prohibition, and try to identify what really led to modern law’s confusion over error of fact review.
--Dan Ernst
