Nullity vs Cure: Anisminic and Section 123 MCA 1980

How HMCTS is undermining the foundations of modern public law via "ghost courts"

I am going on an unplanned crash course in public law. A year ago I didn’t know what “juridical”, “seisal”, or “nullity” meant. Now I find myself forced to master them, because the state is pretending courts exist that Parliament never created, and then using procedural trickery to silence anyone who notices. While I am heading to the High Court to challenge the self-evident abuse of power (claiming something is a “magistrates’ court” when it is not), it does not particularly matter what the legal outcome is. The crucial change is a public that is aware of the wrongdoing, and intolerant of it, whether or not the legal establishment wants to “put the garbage out.”

As part of becoming semi-literate in this area, I am learning about landmark cases that form the foundation of public law. One of these is Anisminic, a ruling in the late 1960s that inserted a hard bright line between “law” and “not law”, and stopped courts using discretion to excuse procedural impropriety. The administrative state has redefined “crime with an identifiable victim” into “policy infractions” for many cases, and industrialised the punishment of activities like personal use of soft drugs, paperwork errors, or technical violations of speeding. Cases like Anisminic are firewalls that limit the spread of state overreach.

Yet in the magistrates’ courts, a quiet corrosion has taken hold. Section 123 of the Magistrates’ Courts Act 1980 was designed to prevent trivial defects in a summons from collapsing proceedings — a misspelt name, a mis-dated form. But according to the Justices’ Clerks’ Society guidance of August this year, it is now being treated as a universal solvent: any defect, even the absence of a lawfully constituted court, is supposedly “cured.” That interpretation doesn’t just stretch the law; it eviscerates it. Anisminic says a nullity cannot be patched, while s.123 is being weaponised to insist that nullities don’t exist. The two positions cannot coexist.

If the courts cling to Anisminic, the Single Justice Procedure and much of HMCTS’s paperwork practice collapse into dust. If they abandon Anisminic, then the entire superstructure of public law goes with it. Either way, the simulation is exposed.

Here is a primer to help you get up to speed — the more people who understand the stakes, the better. Over to ChatGPT…

---

1. What Anisminic Did—and Didn’t—Change

The 1969 House of Lords decision in Anisminic Ltd v Foreign Compensation Commission is one of the pillars of modern public law. Its key contribution was to collapse the distinction between “jurisdictional” and “non-jurisdictional” errors. The court held that where a body acts outside its powers, its decision is a nullity: legally no decision at all.

This meant two things:

• No safe harbour for “errors within jurisdiction.” The old approach, which tolerated mistakes so long as they didn’t go to jurisdiction, was abandoned.

• Ouster clauses can’t block review. Even where Parliament tries to insulate decisions from challenge, courts can still intervene if the error renders the act void.

What Anisminic did not do was to make every trivial error fatal. It preserved the idea that some mistakes are minor defects in form or procedure. But once an error strikes at the root of legal authority, the act is void and cannot be cured.

2. Section 123 MCA 1980: The “Cure” Clause

Section 123(1) of the Magistrates’ Courts Act 1980 provides:

“No objection shall be allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form…”

Its purpose is modest: to stop criminal proceedings collapsing over clerical mistakes in a summons. It prevents acquittals on technicalities when the underlying court and charge are otherwise valid.

The JCS guidance paper (August 2025) instructs legal advisers to rely on s.123 as a blanket cure for defective summonses. It insists that “court names have no legal significance” and that “defects never oust jurisdiction,” citing cases like Catlin, Argos, and Chopstix. The summons, it says, is merely a mechanism to bring defendants before the court, not the source of jurisdiction itself.

3. The Conflict: Cure Versus Nullity

This creates a direct clash:

• Anisminic: Jurisdictional errors create nullities; they cannot be cured.

• s.123 (as read by JCS): Any defect, even in substance, does not affect validity.

My own case sits squarely in that conflict. The summonses I received bore three different labels—North Cumbria Magistrates’ Court, North and West Cumbria Magistrates’ Court (1752), and Carlisle Magistrates’ Court—none of which corresponds to a court constituted by statutory instrument under the Courts Act 2003.

That is not a “defect in form or substance.” It is a juridical void. No constituting instrument means no court. And if there is no court, there is nothing for s.123 to cure. In the language I have distilled: “You cannot cure what you did not seize. In a nullity there is neither form nor substance.”

4. Consequences Either Way

• If Anisminic governs:

  • The summonses and proceedings are nullities.

  • No jurisdiction was ever seized.

  • All acts of the supposed court—including the trial, the s.142 rehearing, and even any appeal—are infected.

  • The issue remains justiciable at any time, because void acts cannot be validated by delay or waiver.

• If s.123 governs (JCS reading):

  • Even a summons from a “phantom” court is valid.

  • Fraud and law become indistinguishable: any scrap of paper, with any label, would compel attendance so long as magistrates sit somewhere.

  • Anisminic would be hollowed out in magistrates’ courts, creating a pocket of law where nullities are treated as curable defects.

  • This would represent a quiet reversal of constitutional principle—an upheaval more destabilising than the collapse of the Single Justice Procedure itself.

5. The Stakes

This is why my case resonates beyond motoring law. NGOs, academics, and judges alike will recognise the constitutional fork in the road:

• Uphold Anisminic and accept that HMCTS has been simulating courts through administrative labels, exposing thousands of convictions as void.

• Or side with the JCS guidance, effectively rewriting constitutional law so that jurisdictional fraud is treated as a mere defect in form.

The former creates institutional embarrassment but preserves the rule of law. The latter avoids embarrassment in the short term but triggers revolt in the wider legal establishment, because it amounts to judicial endorsement of simulation.

---

Conclusion

Anisminic said you cannot cure a nullity. Section 123 MCA was designed to prevent trivial defects from collapsing proceedings. In my case, the two collide head-on. The High Court cannot duck the choice: either reaffirm the constitutional principle, or participate in its erosion. And either way, the consequences will ripple far beyond Cumbria.