Order valid unless and until revoked

In England and Wales, must Court orders be obeyed, even if they appear to have been irregularly made, and may be liable, later, to being set aside?

This article will consider this issue, in light of:

(1) Wardle Fabrics Ltd v G Myristis Ltd [1984] FSR 263 ('Wardle'), High Court (Goulding J) on 27.1.84;

(2) Isaacs v Robertson [1985] AC 97 [1984] 3 WLR 705 ('Isaacs'), Privy Council (St Vincent and the Grenadines) (Lord Diplock; Lord Keith; Lord Roskill; Lord Brightman; Lord Templeman) on 13.6.84;

(3) M v Home Office [1992] Q.B. 270 ('M v Home Office'), Court of Appeal (Lord Donaldson MR; McCowan LJ; Nolan LJ), on 29.11.91;

(4) PricewaterhouseCoopers v Saad Investments Co Ltd ('PricewaterhouseCoopers'), Privy Council (Bermuda) (Lord Neuberger; Lord Mance; Lord Clarke; Lord Sumption; Lord Collins) on 10.11.14;

(5) Attorney General v Yaxley-Lennon [2019] EWHC 1791 (QB) [2020] 3 All E.R. 477 ('Yaxley-Lennon 1791'), the Divisional Court (Dame Victoria Sharp - President of the Queen's Bench Division, and Warby J) on 9.7.19;

(6) R (Majera) v Home Secretary [2022] AC 46 ('Majera'), Supreme Court (Lord Reed PSC; Lord Sales JSC; Lord Leggatt JSC; Lord Burrows JSC; Lady Rose JSC) on 20.10.21;

(7) Johnson v Bank of Scotland [2025] EWCC 22 ('Johnson'), County Court (Bristol) - HHJ Paul Matthews on 14.5.25; 

(8) Klotho Brands Ltd v Stanford [2025] EWHC 1966 (Ch) ('Klotho 1966'), High Court (HHJ Paul Matthews (sitting as a Judge of the High Court)) on 1.8.25.

The leading case is Majera, and the judgment of Lord Reed PSC.

Wardle

In Wardle, a company ('WFL') had, on 19.1.84, issued an application for a Anton Pillar order (now called, a search order) against another company ('GML'), which, at a without notice hearing on 19.1.84, was granted. WFL sought to execute the Anton Pillar order on 20.1.84, but this as thwarted (disobeyed) by GML's director (Mr George Myristis). On 24.1.84, WFL issued an application, which, amongst other things, sought an order to commit GML's director for his actions on 20.1.84. GML applied to discharge the Anton Pillar order. On 26.1.84, Goulding J discharged the Anton Pillar order, on the basis WFL had, in effect, not given full and frank disclosure to the Court on 19.1.84. Goulding J then considered the application to commit GML's director and the issue arose, was the fact the Anton Pillar order had subsequently been discharged, material to the application to commit. Goulding J, at 271 to 273 said:

'What is the position in those circumstances? In the absence of authority, and if I were free to look at the matter from first principles, I would have thought that if the court makes an order within its jurisdiction, by which I mean in such circumstances that the purported order is not a nullity in law, then a party is bound to obey it at his risk of contempt proceedings if he does not, and that the subsequent discharge of the order as having been irregularly obtained would not in logic and principle affect the disobedient party's liability to penalties for contempt. It seems to me the system of administering justice would break down if the subjects were entitled to apply their own or their advisers' ideas to the possibilities of subsequently setting aside an order and to disobey on the strength of such private judgment and then, if the judgment turned out not to have been right, be free from all penalty.

That at an earlier period such principles were accepted is shown, I think, by a brief quotation from a book formerly in much favour, Oswald on Contempt of Court, which cannot, however, be regarded as an up-to-date statement of the law since the most recent, namely the third, edition was published in the same year in which I was born. What the learned editor then said was this:

“An order irregularly obtained cannot be treated as a nullity but must be implicitly obeyed until by a proper application it is discharged, and the case is the same where the order is alleged to have been improvidently made, and in such cases the court may merely order the offenders to pay the costs of the breach and of the application to commit.”

I have, by the industry of counsel, been directed to some of the authorities, old and new, on this matter, and I will now briefly mention them. The oldest is more than 300 years old. It is the decision of Lord Nottingham L.C., one of the founders of modern equitable jurisdiction, in the case of Woodward v. Earl Lincoln, and it is reported (long after the time it was decided) in (1818) 3 Sw. 626. There, on an application for a committal, the learned Lord Chancellor said that one of the exceptions taken to the application was that the injunction was unduly granted without order or affidavit and was also mistaken in the date. Of that contention the learned Lord Chancellor said “This I overruled, for whatever the mistakes be the subject must obey below and dispute here, for a contempt is not to be justified.”

Then in 1817 another Lord Chancellor, Lord Eldon, L.C., decided the case of Partington v. Booth (1817) 3 Mer. 148. His Lordship there said that he “was decidedly of the opinion that a breach of the injunction had been incurred by” a certain act of the party and his agent sought to be committed, and he went on “If the circumstances of the case had been fully explained to the court at the time when the injunction was granted, that injunction would not have been allowed to extend so far as it did. But, as the case then stood, the injunction, however erroneously granted, was an order of the court, and must be obeyed,” and he did not commit the respondents but he ordered them to pay the costs occasioned by the breach of the injunction and the application to commit; and the injunction was afterwards dissolved on a motion by the defendants.

The third case was decided a year later, again by Eldon L.C., Drewry v. Thacker (1818) 3 Sw. 529. At page 546 the learned Chancellor stated certain requirements as to evidence before a certain type of injunction ought to be pronounced, and he thought that an injunction had been granted by the Master of the Rolls without having the evidence he ought to have had. Then he said: “On a full explanation of the facts there might have been a difficulty in granting that application; the order, however, has been made, and must be obeyed: but on an application against persons guilty of a breach of it, the court would forget its duty, if it did not give to them the benefit of the fact that the order ought not to have been made.”

Those older authorities, as it seems to me, justify the statement in Oswald that an irregularity in obtaining an order does not excuse the party to whom the court's command is issued from obeying it, although it may be taken into account when considering what penalty should be imposed.' [bold added]

Goulding J in Wardle then went through 4 authorities: (a) Scott v. Scott [1913] AC 417 (point not dealt with expressly by House of Lords); (b) Anton Piller K.G. v. Manufacturing Process Ltd [1976] Ch. 55 (the irregularity of the order will be borne in mind by the court when it considers what penalty, if any, should be exacted for the contempt); (c) Hallmark Cards Incorporated v. Image Arts [1977] FSR 150 (observations were obiter[1]); and (d) THERMAX Ltd. v. Schott Industrial Glass Ltd [1981] F.S.R. 289, and concluded, at 275:

'Having reviewed that body of authority as best I can, it seems to me that what I would have wished to decide on principle is in accordance with the law as it stands, that an order - and I am not speaking of an order which for want of jurisdiction is a nullity ab initio, but an order of the court made within its jurisdiction - must be obeyed on pain of contempt penalties while it stands. The fact that it is subsequently discharged is no automatic answer to proceedings for contempt, although the circumstances are appropriate to be considered when the court has to decide on penalties.'

The law therefore draws a distinction between:

(1) an order which, for want of jurisdiction, is a nullity ab initio; and

(2) an order of the court made within its jurisdiction.

Goulding J in Wardle rejected that this left the law in a very unsatisfactory state '...because it would mean that if a party is confronted with a purported order that he thinks to be irregular in some way, whether he can safely disobey it must depend on whether it is void or voidable, which everyone knows can in some circumstances be a difficult question.' (275). Goulding J said, at 275:

'...I think it would be a far more unsatisfactory state of the law if a party were at liberty to disobey an order on the chance that the court might afterwards think that it ought to avoid it because of some insufficiency of evidence or the like when it was obtained.'

Isaacs

In Isaacs, Lord Diplock in the Privy Council (St Vincent and the Grenadines), giving the advice of the Board, said, at 101F:

'...the short and well established ground that an order made by a court of unlimited jurisdiction … must be obeyed unless and until it has been set aside by the court'

For this proposition, Lord Diplock in Isaacs, at 101-102, referred to a passage in the judgment of Romer LJ in Hadkinson v. Hadkinson [1952] P. 285, at 288. That passage read as follows:

'It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void - whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order, which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' (Per Lord Cottenham L.C. in Chuck v. Cremer (1846) Cooper temp. Cottenham 205, 338.) Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court ... is in contempt and may be punished by committal or attachment or otherwise.'

Note, Lord Diplock in Isaacs also said, in short[2], that, in relation to orders of a court of unlimited jurisdiction, concepts of 'voidness' and 'voidability' do not apply. 'They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies.' (103)

PricewaterhouseCoopers

In PricewaterhouseCoopers concerned whether or not an auditor had standing to apply to set aside a winding up order made against a company (S). However, for the purposes of this article, what is relevant is that:

(1) The Supreme Court of Bermuda made a winding up order against S, a company incorporated in the Cayman Islands;

(2) the Privy Council held that the Supreme Court of Bermuda had had no jurisdiction to wind up S (as it was an overseas company which did not trade or carry on business in Bermuda);

(3) But, somewhat confusingly, the Supreme Court of Bermuda was a court of unlimited jurisdiction (paragraph 25).

The result of this was that, the Supreme Court of Bermuda winding up order against S was effective in law. Lord Neuberger, giving the advice of the Board, said, at paragraph 25:

'The Board accepts that, even though the Supreme Court did not in fact have jurisdiction to wind up [S], the order it made to wind [S] up and to appoint the respondents as joint official liquidators on 14 September 2012 must, at least until it is set aside by a subsequent order, be treated as effective in law. This is because of “the short and well established ground that an order made by a court of unlimited jurisdiction … must be obeyed unless and until it has been set aside by the court”: per Lord Diplock giving the advice of the Board in Isaacs v Robertson [1985] AC 97, 101F. Consistently with this, there is a number of cases in which judges have held that they cannot “go behind” a winding up order, ie that it must be treated as valid and effective, albeit until it is set aside or in some way stayed: see eg In re Dover & Deal Railway Co (1854) 4 De GM & G 411, 420, per Knight Bruce LJ and In re London Marine Insurance Association (1869) LR 8 Eq 176, 193, per James V-C.'

Accordingly, even though the Supreme Court of Bermuda had not had jurisdiction to wind up S, the Supreme Court of Bermuda's winding-up order had to be treated as effective, at least until it was set aside by a subsequent order, applying Isaacs.

M v Home Office 

Lord Donaldson in M v Home Office said, at 307, in point (10):

'An order by the High Court, which is a court of unlimited jurisdiction, is binding, until set aside even if it is subsequently held that it was wrong or irregular. Disobedience or frustration of it can therefore constitute a contempt of court: see ante, pp. 298G-300E.'

In M v Home Office, a High Court Judge (Garland J), sitting in the High Court (so a Court of unlimited jurisdiction) made a without notice (ex parte) order on 2.5.91 (at 1:30 am). That order was, on 3.5.91, set aside. In the intervening period, the order was 'fully binding' (299; Lord Donaldson relying on a passage from Lord Diplock in Isaacs). Lord Donaldson addressed a dilema generated by this rule:

'Although the operation of this inflexible rule as to the binding effect of orders of courts of unlimited jurisdiction should have created no problem in this particular case, there are undoubtedly situations in which it can produce a dilemma for the persons bound by them. This was considered by this court in WEA Records Ltd. v. Visions Channel 4 Ltd. [1983] 1 W.L.R. 721 and in Hallmark Cards Inc. v. Image Arts Ltd. [1977] F.S.R. 150. Both involved Anton Piller orders and information which the respondents wished to remain confidential. The problem which arises in such cases is that compliance with the order renders the right to apply to have the order set aside nugatory. What has been done in accordance with the order can never be undone. On the other hand, if the existence of an express or implied right to apply to set the order aside is treated as having a suspensory effect upon it, the respondent would be free meanwhile to create a situation in which, if the order were later affirmed, its objective had already been frustrated by the destruction of papers or otherwise.

These two decisions of this court read together put the burden of decision firmly on the person to whom the order is addressed. If he does not immediately comply with its terms, he will technically be in contempt. If, however, he preserves the situation pending the result of a prompt application to the court, no penalty would be imposed if the order were subsequently set aside and in all likelihood no penalty would be imposed if, in the event of it being affirmed, there was full and immediate compliance. On the other hand he would be liable to severe penalties if, pending such an application, he acted to frustrate the order, whether or not it was affirmed.' (299-300)

Yaxley-Lennon 1791

In Yaxley-Lennon 1791, the Divisional Court heard an application by Her Majesty's Attorney General for an order, committing the respondent Mr Yaxley-Lennon to prison for contempt of court. In summary, the Attorney General alleged that the respondent's conduct amounted to contempt of court in three different respects. First, the online publication - a live streamed video (paragraph 2) - involved a breach of a reporting restriction order ("the RRO") that had been imposed under s 4(2) of the Contempt of Court Act 1981, and which prohibited any reporting of a particular trial (the Akhtar trial) until after the conclusion of that trial and all related trials (paragraph 3).

In response to the committed application, the Respondent's counsel:

(1) accepted that a breach of a s 4(2) order (a RRO) was capable of amounting to contempt (paragraph 48); but 

(2) argued, amongst other things, that (paragraph 48):

(a) '...contempt of this variety can only be made out on proof of "disobedience to an order of the court properly made".' and 

(b) the Divisional Court ought to conclude that on a proper analysis, this RRO was not "properly made" 

At paragraph 49, Dame Victoria Sharp PQBD in Yaxley-Lennon 1791 said:

'We cannot accept either of [the Respondent's counsel] first two propositions. It is a fundamental principle of long standing that orders of the court must be obeyed whilst they remain in force; disobedience to an order will therefore amount to a breach, capable of amounting to contempt, even if on later examination it proves to have been wrongly made: see Woodward v Earl Lincoln (1674) 3 Swan App 626, 36 ER 1000, and other authorities cited in Arlidge, Eady & Smith at 7-173 and 9-230 to 9-235. More than this, Mr Furlong's submission is contrary to authority. In the Horsham Justices case, the majority of the Court of Appeal (Ackner and Shaw LJJ) rejected a submission advanced by Mr Beloff QC on behalf of the appellant journalists that the Court confronted with a committal application could and should reconsider the decision to make a s 4(2) order: see [1982] 1 QB 798B-C (Shaw LJ), 805B-E, 806E-F (Ackner LJ). See also the obiter remarks of Brooke LJ in Attorney General v Guardian Newspapers Ltd (No 3) [1992] 1 WLR 874, 884H-885A, which are to the same effect. We agree with the conclusion of the editors of Arlidge, Eady & Smith (at 7-319) that "the validity of a s 4(2) order cannot be made the subject of challenge in contempt proceedings based upon a breach."...'

In Secretary of State for Transport v Cuciurean [2021] EWCA Civ 357, the Court of Appeal (Lewison LJ; Edis LJ; Warby LJ) heard an appeal against, amongst other things, findings that Mr Cuciurean was in contempt of court, by breach of an injunction prohibiting trespass on land (paragraph 1). 

Under the heading 'The Legal Framework' and subheading 'Context', Warby LJ said, at paragraph 9(4):

'Where the Court, having conducted the necessary balancing process, has granted an injunction, that order must be obeyed unless and until it has been set aside. The issue was examined, and this principle was re-affirmed, by the Divisional Court in Re Yaxley-Lennon (No 2) [2019] EWHC 1791 (QB) [2020] 3 All ER 477 [49]. It follows that a person accused of contempt by disobedience to an order may not seek to revisit the merits of the original injunction as a means of securing an acquittal, although these matters may in some cases be relevant to sanction.'

Majera

In Majera, the Supreme Court was concerned with the order of a court or tribunal, particularly, a bail order made by the First Tier Tribunal. Under the heading 'The legal issues' and subheading 'The duty to obey court orders', Lord Reed (with whom all the other Supreme Court justices sitting agreed) said, at paragraph 44:

'It is a well established principle of our constitutional law that a court order must be obeyed unless and until it has been set aside or varied by the court (or, conceivably, overruled by legislation). The principle was authoritatively stated in Chuck v Cremer (1846) 1 Coop temp Cott 338, in terms which have been repeated time and again in later authorities. The case was one where the plaintiff's solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been intended to give effect to an agreement between the parties, but had mistakenly allowed the defendant longer to file a defence than had been agreed. The Lord Chancellor, Lord Cottenham, set aside the attachment, and stated at pp 342–343:

“A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it … It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid—whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.”

45. Three important points can be taken from this passage. First, there is a legal duty to obey a court order which has not been set aside: “it must not be disobeyed.” As the mandatory language makes clear, this is a rule of law, not merely a matter of good practice. Secondly, the rationale of according such authority to court orders, as explained in the second and third sentences, is what would now be described as the rule of law. As was said in R (Evans) v Attorney General [2015] AC 1787, para 52, “subject to being overruled by a higher court or (given Parliamentary supremacy) a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive”. This principle was described (ibid) as “fundamental to the rule of law”. Thirdly, as the Lord Chancellor made clear in Chuck v Cremer, the rule applies to orders which are “null”, as well as to orders which are merely irregular. Notwithstanding the paradox involved in this use of language, a court order which is “null” must be obeyed unless and until it is set aside.

46. This rule was applied by the Court of Appeal in Hadkinson v Hadkinson [1952] P 285. In a well-known passage, Romer LJ stated at p 288:'

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

Romer LJ then cited Lord Cottenham's dictum in Chuck v Cremer. That passage in the judgment of Romer LJ was approved by the Privy Council in Isaacs v Robertson [1985] AC 97, 101–102, which in turn was cited with approval by the House of Lords in M v Home Office [1994] 1 AC 377, 423, and by the Privy Council in Mossell (Jamaica) Ltd (trading as Digicel) v Office of Utilities Regulations [2010] UKPC 1 at [43].

47. This rule was not engaged in the case of Boddington (nor, for that matter, in Hoffmann-La Roche), since that case was not concerned with a court order. That was one of the grounds on which the Divisional Court correctly distinguished Boddington in Director of Public Prosecutions v T [2007] 1 WLR 209, where the defendant was charged with breaching an anti-social behaviour order which was alleged to be invalid. Richards LJ cited Boddington and observed, at para 27:

“Very different considerations apply in the present context. First, the normal rule in relation to an order of the court is that it must be treated as valid and be obeyed unless and until it is set aside. Even if the order should not have been made in the first place, a person may be liable for any breach of it committed before it is set aside.”

The same distinction was also drawn by the Privy Council in Mossell (Jamaica) Ltd (trading as Digicel) v Office of Utilities Regulations, at para 43:

“The Board would reject entirely [the appellant's] submission that the principle established in Boddington is relevant only in the context of criminal prosecutions and not, as here, Ministerial Directions. The Board would reject too the suggested analogy between Ministerial Directions and the orders of superior courts which, it is well established (see for example, Isaacs v Robertson [1985] AC 97) must always be obeyed, whatever their defects, until set aside.”

48. As Richards LJ pointed out in Director of Public Prosecutions v T at paras 30–31, although Romer LJ referred in Hadkinson v Hadkinson to “a court of competent jurisdiction” (para 46 above), and although that case, like Isaacs v Robertson and M v Home Office, was concerned with a court of unlimited jurisdiction, the rule has also been applied to courts of limited jurisdiction: see, for example, Johnson v Walton [1990] 1 FLR 350 and In re B (Court's Jurisdiction) [2004] 2 FLR 741.

49. That is consistent with the rationale of the rule. As explained in para 45 above, it is based on the importance of the authority of court orders to the maintenance of the rule of law: a consideration which applies to orders made by courts of limited jurisdiction as well as to those made by courts possessing unlimited jurisdiction. In the present case, the First-tier Tribunal was in any event a court of competent jurisdiction: it possessed jurisdiction under paragraph 22 of Schedule 2 to the 1971 Act to hear and determine applications for bail.

50. It is relevant to note some other recent examples of the application of this approach, in contexts more closely analogous to that of the present case. First, the case of R v Central London County Court, Ex p London [1999] QB 1260 concerned the compulsory detention of a patient in hospital under mental health legislation. The application for his admission by the hospital managers was made by the local social services authority, which had been authorised to make the application by orders made by the county court. The patient subsequently applied for judicial review to quash the court orders and the compulsory admission based upon them. The Court of Appeal concluded that the orders were valid, but went on to consider what the position would be if the county court had no jurisdiction to make them. Stuart-Smith LJ, with whom Robert Walker and Henry LJJ agreed, cited Hadkinson v Hadkinson, Isaacs v Robertson, Boddington and Percy v Hall, and concluded at para 36 that even if the county court had no jurisdiction to make the orders in question, the decision of the hospital managers to admit the applicant was valid. As he explained at para 30, if the orders were made by the county court without jurisdiction, then the applicant was entitled to have them quashed, but he was not entitled to a declaration that the decision to admit him was unlawful: that decision could only be quashed if it was ultra vires the hospital managers at the time when it was made, and it was not.

51. Another recent example, which also illustrates the point that the rule set out in Chuck v Cremer is not confined to orders made by courts possessing unlimited jurisdiction, is the decision of the Court of Appeal (Simon Brown, Mummery and Dyson LJJ) in R (H) v Ashworth Special Hospital Authority [2003] 1 WLR 127. The case arose out of the decision of a hospital authority to re-detain a patient after a mental health tribunal had ordered his discharge from detention. The hospital authority then applied for judicial review of the tribunal's order, on the ground that it was unreasonable and unsupported by adequate reasons, and the patient applied for judicial review of the authority's decision, on the basis that it was incompatible with the tribunal's order. Both applications succeeded: the tribunal's order was held to be unlawful and was quashed, but the authority was also held to have acted unlawfully in making a decision which was inconsistent with the tribunal's order at a time when that order had not been set aside. The mental health tribunal was, of course, a body exercising a limited jurisdiction.

52. Dyson LJ based his reasoning upon article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms, but it was entirely consistent with the common law. He stated at para 56:

“In the absence of material circumstances of which the tribunal is not aware when it orders discharge, in my judgment it is not open to the professionals, at any rate until and unless the tribunal's decision has been quashed by a court, to resection a patient … To countenance such a course as lawful would be to permit the professionals and their legal advisers to determine whether a decision by a court to discharge a detained person should have effect.”

Simon Brown LJ based his reasoning on the rule of law, stating at para 102: “the tribunal's view must prevail; the authority cannot simply overrule the discharge order. Court orders must be respected—the rule of law is the imperative here.” The authority's decision was therefore unlawful, notwithstanding the Court of Appeal's conclusion that the tribunal's order was also unlawful and had rightly been quashed by the court below.

53. Reference might also be made to the judgment of the Court of Appeal in R (Lunn) v Governor of Moorland Prison [2006] 1 WLR 2870, which concerned an error in a warrant of imprisonment. Moore-Bick LJ, giving the judgment of the court, stated at para 22:

“It is an important principle of the administration of justice that an order of a court of competent jurisdiction made in the exercise of that jurisdiction, as it was in this case, is valid and binding until it is varied or set aside, either on appeal or in the proper exercise of the court's own jurisdiction. (It is unnecessary in this case to consider the position in relation to an order which is unlawful on its face or which is made in excess of jurisdiction, though, as appears from the authorities, an order which is valid on its face is binding even if it was made in excess of jurisdiction and is therefore liable to be set aside.) It is necessary that that should be the case, both in order to preserve the authority of the courts and thereby the orderly administration of justice and to ensure that those who have to take action on the basis of the court's orders may be confident that they can lawfully do so.”

The sentence in parentheses is supported by a line of authority going back to the 17th century concerned with the execution of warrants issued in excess of jurisdiction, summarised by Lord Alverstone CJ in Demer v Cook (1903) 88 LT 629, 631.

54. Another recent example is the case of Rochdale Metropolitan Borough Council v KW (No 2) [2016] 1 WLR 198, where a judge of the Family Division took the view that a decision of the Court of Appeal was ultra vires. Lord Dyson MR, giving the judgment of the Court of Appeal, stated at para 22:

“An order of any court is binding until it is set aside or varied. This is consistent with principles of finality and certainty which are necessary for the administration of justice: R (Lunn) v Governor of Moorland Prison [2006] 1 WLR 2870, para 22; Serious Organised Crime Agency v O’Docherty [2013] CP Rep 35, para 69. Such an order would still be binding even if there were doubt as to the court's jurisdiction to make the order: M v Home Office [1994] 1 AC 377, 423; Isaacs v Robertson [1985] AC 97, 101–103.”

55. A further example is the decision of the Court of Appeal in R v Kirby (John Martin) [2019] 4 WLR 131, which concerned convictions for the breach of a non-molestation order that was subsequently set aside because of a procedural irregularity. The convictions were upheld. Singh LJ, giving the judgment of the court, based the decision on “a long-standing principle of our law that there is an obligation to obey an apparently valid order of a court unless and until that order is set aside. This is a crucial feature of a civilized society which has respect for the rule of law” (para 13). In that regard, Singh LJ cited Chuck v Cremer, Hadkinson v Hadkinson, Isaacs v Robertson and M v Home Office, among other authorities, and followed Director of Public Prosecutions v T in distinguishing the case of Boddington.

Lord Reed then said, in Majera, at paragraph 56:

56. In the light of this consistent body of authority stretching back to 1846, it is apparent that the alleged invalidity of the order made by the First-tier Tribunal had no bearing on the challenge to the decision of the Secretary of State. Even assuming that the order was invalid, the Secretary of State was nevertheless obliged to comply with it, unless and until it was varied or set aside. The allegation that the order was invalid was not, therefore, a relevant defence to the application for judicial review of the Secretary of State's decision. As there was no other basis on which the Court of Appeal reversed the Upper Tribunal, and the Secretary of State does not ask the court to dismiss the appeal on other grounds, it follows that the appeal should be allowed.'

(on Johnson v Walton [1990] 1 FLR 350 and In re B (Court's Jurisdiction) [2004] 2 FLR 741, see footnote[4]).

Johnson

In Johnson, under the heading 'Defective court orders', the Judge said, paragraph 20 to 28:

'I turn to the question of the effectiveness in law of an order of the court which may be thought to be in some way defective, for example because not complying in some way with the provisions under which it is made. As to this, there is a long and consistent line of high authority dealing with the point. Thus, in Chuck v Cremer (1846) 1 Coop t Cott 338, Lord Cottenham LC said, at 342-343:

"A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it … It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid - whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed".

In Hadkinson v Hadkinson [1952] P 285, Romer LJ said, at 288:

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void".

Romer LJ then set out the statement of Lord Cottenham LC cited above as authority for his proposition.

In Isaacs v Robertson [1985] AC 97, at 101-102, Lord Diplock, giving the advice of the Judicial Committee of the Privy Council, cited the statement of Romer LJ in Hadkinson (including the quotation from Lord Cottenham LC), and then added:

"This, in their Lordships' view, says all that needs to be said upon this topic. It is in itself sufficient reason for dismissing this appeal."

In Johnson v Walton [1990] 1 FLR 350, a non-molestation undertaking had been given to the county court, and then breached. An application to commit the defendant for that breach failed in that court on the ground that the court had had no jurisdiction to accept the undertaking. The Court of Appeal held that the judge had been wrong to dismiss the application on that ground. Lord Donaldson of Lymington MR said (at 352):

"If it had been an injunction, no question could have arisen before him as to whether the injunction was rightly imposed. That could only have arisen if the defendant had either appealed against the injunction if one had been granted or, which is the equivalent in the case of an undertaking, had been asked to be released from his undertaking. It cannot be too clearly stated that, when an injunctive order is made or when an undertaking is given, it operates until it is revoked on appeal or by the court itself, and it has to be obeyed whether or not it should have been granted or accepted in the first place."

In M v Home Office [1994] 1 AC 377, HL, Lord Woolf (with whom the whole judicial committee of the House of Lords agreed) said, at 423:

"Having come to the conclusion that Garland J.'s order was properly made, the next question which has to be considered is the effect of the advice which was understandably given to [the Home Secretary] that the order was made without jurisdiction. Here there are two important considerations. The first is that the order was made by the High Court and therefore has to be treated as a perfectly valid order and one which has to be obeyed until it is set aside."

For this proposition Lord Woolf referred to the advice of Lord Diplock in Isaacs v Robertson.

In B v B [2004] EWCA Civ 681, an order had been made by the county court without jurisdiction to do so. Wall LJ (with whom Arden LJ agreed) said:

"68. In my judgment, although made without jurisdiction, the order was not a nullity. The normal rule about orders which, on their face, are regular, but which are in fact made without jurisdiction is that they remain in force until such time as they are discharged: - see Hadkinson v Hadkinson [1952] 285, 288 per Romer LJ … "

In R (Lunn) v Governor of Moorland Prison [2006] 1 WLR 2870, CA, a warrant of imprisonment contained an error. Moore-Bick LJ, giving the judgment of the court, said:

"22. It is an important principle of the administration of justice that an order of a court of competent jurisdiction made in the exercise of that jurisdiction, as it was in this case, is valid and binding until it is varied or set aside, either on appeal or in the proper exercise of the court's own jurisdiction. (It is unnecessary in this case to consider the position in relation to an order which is unlawful on its face or which is made in excess of jurisdiction, though, as appears from the authorities, an order which is valid on its face is binding even if it was made in excess of jurisdiction and is therefore liable to be set aside.) It is necessary that that should be the case, both in order to preserve the authority of the courts and thereby the orderly administration of justice and to ensure that those who have to take action on the basis of the court's orders may be confident that they can lawfully do so."

In R v Kirby (John Martin) [2019] 4 WLR 131, CA, the question was whether convictions could stand for the breach of a non-molestation order that was subsequently set aside because of a procedural irregularity. The court held that they could and should. Singh LJ, giving the judgment of the court, said:

"13. In approaching this appeal, we remind ourselves that there is a long-standing principle of our law that there is an obligation to obey an apparently valid order of a court unless and until that order is set aside. This is a crucial feature of a civilized society which has respect for the rule of law. The authorities amply demonstrate that that is the long-standing principle of our legal system."

For this proposition, Singh LJ relied on Chuck v Cremer, Hadkinson v Hadkinson, Isaacs v Robertson, and M v Home Office

Finally, in R (Majera) v Home Secretary [2022] AC 461, SC, Lord Reed (with whom all the other Supreme Court justices sitting agreed) considered all these cases (and indeed others), and concluded:

"56. In the light of this consistent body of authority stretching back to 1846, it is apparent that the alleged invalidity of the order made by the First-tier Tribunal had no bearing on the challenge to the decision of the Secretary of State. Even assuming that the order was invalid, the Secretary of State was nevertheless obliged to comply with it, unless and until it was varied or set aside. The allegation that the order was invalid was not, therefore, a relevant defence to the application for judicial review of the Secretary of State's decision."'

Klotho 1966

In Klotho 1966, the respondent said '...the respondent makes the allegation that the order was obtained by the false evidence' (paragraph 57). After noting that the order was never set aside, the Judge said, at paragraph 57, that, moreover:

'...the injunction is one granted by a court of competent jurisdiction, and so, unless and until it is overturned or set aside, or at least varied in a material way, the respondent is obliged to obey it: see Chuck v Cremer (1846) 1 Coop t Cott 338, 342-343; Isaacs v Robertson [1985] AC 97, at 101-102; M v Home Office [1994] 1 AC 377, 423; R v Kirby (John Martin) [2019] 4 WLR 131, [13]; R (Majera) v Home Secretary [2022] AC 461, [56]. Even if it were subsequently overturned or set aside, it would still be a contempt of court to have disobeyed it in the meantime.'[3]

Conclusion 

Where the Court has unlimited jurisdiction, an order cannot be in excess of jurisdiciton (it cannot be a nullity ab initio). The order can only be irregular. Concepts such as 'void' and 'voidable' do not apply. Even though irregular, the order must be obeyed, unless and until it is set aside (even if characterised as a 'null', the same applies). Notwithstanding the paradox involved in this use of language, a court order which is “null” must be obeyed unless and until it is set aside. This rule, Lord Reed in Majera, referred to as 'the rule set out in Chuck v Cremer' (paragraph 51). A aggrieved person, with standing, can apply to the Court for the (irregular) order to be discharged (set aside). The Court, on such an application, can set aside (discharge) the (irregular) order (or, may not, or may regularise it).

Where the Court has limited jurisdiction, the law law has not always been clear. But, Lord Reed in Majera has made clear that the the rule applies. Lord Reed in Majera said, at paragraphs 48 and 49:

'...the rule has also been applied to courts of limited jurisdiction: see, for example, Johnson v Walton [1990] 1 FLR 350 and In re B (Court's Jurisdiction) [2004] 2 FLR 741.

That is consistent with the rationale of the rule. As explained in para 45 above, it is based on the importance of the authority of court orders to the maintenance of the rule of law: a consideration which applies to orders made by courts of limited jurisdiction as well as to those made by courts possessing unlimited jurisdiction.'

(1) R (H) v Ashworth Special Hospital Authority [2003] 1 WLR 127 - mental health tribunal (limited jurisdiction) (2) R v Central London County Court, Ex p London [1999] QB 1260 (obiter) - the county court (limited jurisdiction), are illistrations of a body, making orders which without jurisdiction, but those orders still being valid until set aside/discharged. 

Lord Reed did not disavow the notion that the position might be different if the order is 'unlawful on its face' or invalid 'on its face', but rather, seemed tacitly to supported the notion (Majera, paragraph 53). If correct, consideration will need to be given to whether the order is unlawful on its face. For even an order made in excess of jurisdiction, but which is valid on its face, will be is binding and effective (and so, must be obeyed by the person(s) against whom it is made, in the normal way, unless and until it is set aside).

Further authorities

In Warnick v Mughal [2026] EWHC 1667 (KB), Master Byass in the High Court, on 28.4.26, said, paragraph 26:

'Whilst I accept that the default judgment in this case may have been capable of being set aside by the first defendant, the fact remains that no application to set aside the default judgment was made by the first defendant, nor by the claimant's solicitors, having appreciated that the original proceedings in the first claim were not properly served on the first defendant. In my judgment and view, the default judgment could still have been enforced, even if improperly obtained, until and unless it had been set aside. In other words the judgment was, and remained, a judgment granted by the court, until such time as it had been set aside. In that regard, Mr Meredith-Hardy is correct in has reliance on the case of Regina (Majera (formerly SM (Rwanda))) v Secretary of State for the Home Department (Bail for Immigratioin Detainees intervening) [2021] UKSC 46 the headnote of which says:

"….that it was a well-established principle of constitutional law that a court order had to be obeyed unless and until it had been set aside or varied by the court, or overruled by legislation, regardless''

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