England and Wales High Court (Chancery Division) Decisions

RMT v. CD [2001] EWHC Ch 414 (25th May, 2001)

B e f o r e :

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Mr. John Hendy QC and Mr. Michael Ford (instructed by Messrs Christian Fisher for the Claimant)
Mr. Brian Langstaff QC and Mr. Adam Solomon (instructed by Messrs Pattinson and Brewer for the Defendants)

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1. On 9th December 1999 the National Union of Rail, Maritime and Transport Workers ("RMT") held an election for membership of the Council of Executives. The rules required such election to be conducted in accordance with the Single Transferable Vote system as described in Rule 13(1). Rule 13(1) provides

"1. In these Rules the single transferable vote system means:

1. when the names of two or more candidates are printed on a ballot paper each voter shall be entitled to vote for all of the candidates in the order of preference. That is to say by placing the figure 1 against the first choice of candidate then voting for the remaining candidates in descending order (2, 3, 4 etc.)
2. when the returned votes are first counted by the appointed returning officer, the candidate receiving more than half the valid votes, i.e. an absolute majority, shall be declared elected;
3. if no candidate receives an absolute majority, the appointed returning officer shall eliminate the candidate receiving the lowest number of votes and shall distribute those votes among the remaining candidates according to the preferences marked on the ballot papers credited to the eliminated candidate;
4. the process of eliminating the lowest candidates in succession and transferring their votes as described shall continue until either:

1. one of the candidates receives an absolute majority of all the valid votes received, or
2. one candidate is credited with receiving more than the combined votes of all the other candidates."

2. There were three candidates for election as the representative of Regions 2 and 3, namely Mr Tilley, Mr Grundy and Mr Puttnam. The independent scrutineer, Electoral Reform Ballot Services Ltd, reported to the President and Executive Committee of RMT on 10th December 1999 that

"The count was conducted by the Alternative Vote, with 896 being the quota required for election. At the second and final stage of the counting, [Mr Tilley] was deemed to have been elected."

The Committee of Executives accepted that report and declared Mr Tilley to have been elected. By a circular dated 16th December 1999 from the General Secretary of RMT the result of the election was communicated to all the branches and regional councils of RMT.

3. On 22nd December 1999 the General Secretary sent to Mr Grundy at his request the election result sheet compiled by the scrutineer. This showed that that at the first stage the votes cast were

1. Tilley 747
2. Grundy 713
3. Puttnam 332

Mr Puttnam's votes were then redistributed in accordance with the voters' second preferences. In respect of 44 the preferences were exhausted. Reallocation of the remainder resulted in 874 being attributed to each of Mr Tilley and Mr Grundy. The result sheet records that Mr Tilley was "elected due to having more votes at the first stage of the election".

4. This disclosure caused dissension within RMT. At its Annual General Meeting held on 19th June 2000 the delegates called for a re-run of the election. On 22nd September 2000 the Council of Executives rejected that decision. At a Special General Meeting held on 15th/16th November 2000 the delegates rejected the decision of the Council of Executives and resolved by a majority of 51 to 37 to uphold the decision of the AGM. At a meeting of the Council of Executives held on 18th January 2001 the newly elected President, the claimant Mr Boston, undertook to look into the matter. He obtained the opinion of counsel. Counsel advised that the election of Mr Tilley had not been conducted in accordance with the rules and should be re-run. The President reported this advice to the Council of Executives at a meeting held on 3rd April 2001. The majority rejected that advice. The President commenced these proceedings on 9th April 2001 in order that this court might resolve the dispute.
5. On 2nd May 2001 Park J ordered that the proceedings should be retitled so that individuals might avoid being associated with either faction. He gave directions for pleadings and evidence by witness statement. He ordered that there should be no oral evidence or cross-examination unless a party gave notice of its wish to cross-examine a witness. No such notice was given so that the action has been tried on witness statement alone. There are few, if any, issues of fact. In what follows I have sought to identify those which have arisen and express my conclusions on them.
6. The claimant, AB, and all those members of RMT who claim that the election of Mr Tilley was invalid contend that the manner in which the tie between Mr Tilley and Mr Grundy was broken was not authorised by the rules of RMT and was contrary to the express provisions of Rule 13(1). This is disputed by the defendant, CD, and all those members of RMT who claim that the election of Mr Tilley was valid. They submit that (1) the rules, as supplemented by custom and practice, did provide for the resolution of the tie by the method adopted, (2) the result of the election having been duly declared cannot now be re-opened and (3) the construction and application of Rule 13 as contended for by the claimants is untenable. I will deal with the contentions of the claimants and the first and third submissions for the defendants together and before I consider the second submission for the defendants. But first, it is necessary to explain the constitution of RMT, the position of the independent scrutineer, the background to Rule 13(1) and other relevant circumstances surrounding this dispute.
7. RMT was formed in 1990 by the merger of the National Union of Railwaymen and the National Union of Seamen. The constitution and rules with which I am concerned contain a number of material provisions, in addition to Rule 13(1) which I have already quoted. They may be summarised as follows:

1. The rules for the time being are binding on all members (r.1(6)).
2. The supreme government of RMT is the Annual General Meeting consisting of a number of elected officers and delegates (r.3(1) and (2)) which is entitled to exercise any of the powers of the Committee of Executives or to direct such committee how to exercise them (r.3(10)(d) and (e)). The decision of an Annual or Special General Meeting is final and binding on all members (r.3(20)).
3. During the periods between Annual General Meetings the general administration of the business of RMT is vested in an elected Council of Executives (r.4(1)) which may interpret the rules and determine all questions on which they are silent (r.4(7)(b)). The election of a member of the Committee of Executives is to be conducted in accordance with Rule 13(1) and (2). Rule 13(2) provides for the votes to be counted by an independent scrutineer.
4. Rule 24(1) makes provision for the amendment, alteration or rescission of the rules at the Annual General Meeting in every third year or in the interim if recommended by the Council of Executives.

8. The provision in Rule 13(2) for an independent scrutineer long preceded, but is supplemented by, the statutory requirements of ss.46-53 Trade Union and Labour Relations (Consolidation) Act 1992. The present scrutineer is Electoral Reform Ballot Services Ltd. That company is a wholly owned subsidiary of the Electoral Reform Society, previously known as the Proportional Representation Society, and has been the scrutineer of National Union of Railwaymen or RMT for at least the last 30 years.
9. The Electoral Reform Society has, from time to time, produced booklets describing how to conduct elections by the single transferable vote. In that published in 1955 the procedure so far as relevant was described in paragraphs 10(1) and (2) as follows:

10. (1) If at the end of any count no candidate has a surplus, or if any existing surplus need not be and is not transferred, and one or more vacancies remain to be filled:

1. The returning officer shall exclude from the poll the candidate lowest on the poll; but
2. If the total of the votes of the two or more candidates lowest on the poll together with any surplus votes not transferred is less than the number of votes credited to the candidate next above these, the returning officer may at the same count exclude the aforesaid two or more candidates lowest on the poll, provided that the exclusion of these candidates shall not reduce the number of continuing candidates below the number of vacancies remaining to be filled.

(2) If, when a candidate has to be excluded, two or more candidates have each the same number of votes and are lowest on the poll, the candidate with the lowest number of votes at the earliest count at which the candidates in question have an unequal number of votes credited to those candidates are equal at all counts, the returning officer shall determine which shall be excluded.

10. A new pamphlet was published in 1973 and ran to a second edition in 1976 and a third in 1997. In the preface to the first edition the authors indicated that they had sought to explain the purpose, operation and effect of the Single Transferable Vote. In the third edition the editors sought to simplify the structure, clarify the wording and remove some duplication. In the third edition paragraph 5 contains detailed instructions for the count. Rule 5.2.5 records that

"If the votes of two or more candidates are equal, and those candidates have the fewest votes, exclude the candidate who had the fewest votes at the first stage or at the earliest point in the count, after the transfer of a batch of papers, where they had unequal votes. If the votes of such candidates have been equal at all such points the Returning Officer shall decide which candidate to exclude by lot.

Paragraph 5.4.9 instructs those conducting the count

"considering each continuing candidate in turn in descending order of their votes, deem elected any candidate whose vote now equals or exceeds

1. the quota, or
2. the total active vote, divided by one more than the number of places not yet filled,

up to the number of places remaining to be filled, subject to paragraph 5.6.2."

The note contained in paragraph 5.6.2 directs that

"If, when candidates should be deemed elected under sections 5.1.7, 5.3.13 or 5.4.9, two or more have the same number of votes, and there are not sufficient places left for them all, then the one or more to be deemed elected shall be selected in descending order of votes at the first stage or at the earliest point in the count, after the transfer of a batch of papers, where they had unequal votes. If, however, their votes have been equal at all such points, then none of them shall be deemed elected at that stage."

11. The National Union of Railwaymen adopted new rules in January 1957. They provided for the election of members of the Executive Committee by "the Single Transferable Vote system". Schedule 2 explained how the system enabled every voter to express his preference for the different candidates and that no candidate could be successful unless he received the support of the majority. It then stated

"The following is a summary of rules for the election of one representative:-

1. The Voter in voting: Numbers the candidates with the figures 1,2,3, etc. according to his preference.

2. The Returning Officer in Counting the Votes:-

(1) Sorts the voting papers according to the candidates marked with the figure 1.

(2) Declares Elected any candidate who has obtained an absolute majority of the votes (i.e., one more than half the valid votes).

(3) (If no candidate has an absolute majority)- Excludes the lowest candidate and transfers his votes to the candidate marked as next available preference after the excluded candidate.

(4) Continues excluding the lowest candidates in succession, and transferring their votes, until either:-

1. Some candidate obtains an absolute majority of all the valid votes; or
2. Some candidate is credited with more votes than all other remaining candidates together."

12. These rules were replaced in 1980 and 1985 but without, for present purposes, any significant amendment. In addition to the Rules there was produced by RMT a paper entitled "Procedure for counting ballot papers" produced by the Annual General Meeting Standing Orders Committee. There was some dispute whether, as Mr Laws contended, this paper was available at all annual general meetings after 1983. Mr Milligan said that he did not recall it. I do not consider that, in the absence of cross-examination, the evidence of Mr Milligan entitles me to reject that of Mr Laws. Accordingly I find that the paper was available as claimed at all AGMs after 1983. No submissions were made as to the consequences, if any, of such paper being so available.
13. The Standing Orders Committee was elected by the same system, pursuant to Rule 3(11), to consider the agenda before the Annual General Meeting. Their report and recommendations were to be the first item on the agenda. The paper to which I have referred explained how to conduct the requisite counts. In the notes it is stated

(c) Where two or more candidates with equal votes are lowest in the poll, the following procedure should apply:-

1. If their combined votes total less than the votes of the next higher candidate then the two or more candidates may be excluded together.
2. If their combined votes do not total less, only one should be excluded at a time.
3. To decide which one should be excluded first, reference back should be made to see who was the lower at the earliest count at which they were unequal.
4. If there has not been inequality at previous count and therefore, Note (c)(iii) cannot be applied, then the Second Preferences on the papers of all the lowest equal candidates should be examined, and the one with the least support on those Second Preferences should be eliminated.
5. If there is equality on the first count the procedure under Note (c)(iv) should be applied - see Page A.117, E.C. Decisions, March, 1958, which contained the report of the P.R.S. on the Election of President, February, 1958, from which the following is extracted:-

"The order of exclusion of the candidates who tied on the first count was determined by seeing which of them had the least support on the papers credited to the others."

(d)(i) If at the final count two candidates are left with equal votes, they should be dealt with as in (c)(iii) above.

(ii) If they have been equal throughout, the Second Preferences on their papers should be examined and the one with the least support on those Second Preferences should be eliminated and the other declared elected.

14. It is convenient at this stage to consider whether the method by which the tie between Mr Tilley and Mr Grundy was broken was in accordance with either the RMT rules, the ERS rules, as set out in the third edition of the pamphlet published in 1997, or the Standing Orders Committee paper.
15. With regard to the RMT rules it is clear that they fail to make express provision for what is to be done if two or more candidates tie at any stage. Rule 13(1)(c) makes no provision for a tie-breaker for those who come bottom at any stage. Rule 13(1)(d) does not deal with the position if there is a tie at the top at the final stage. There were no such provisions in the 1957 version of the Rules either. Thus I accept the submission of counsel for the defendants that although Rule 13(1) purports to state the meaning of "the single transferable vote system" it is, in fact no more than the summary described as such in the 1957 Rules.
16. It was suggested by counsel for the defendants that, if applicable, rule 5.2.5 of the ERS rules (see para.10 above), on which the independent scrutineer relied, would break the impasse. I do not agree. That rule only applies in accordance with its terms to two or more candidates tied at the bottom of the poll, not the top. It was submitted by counsel for the defendants that it would be pedantic to apply to the sub-clause "and those candidates have the fewest votes" in accordance with its terms. He suggested that the word "fewest" should be read as "fewer". But even if that submission were acceptable, which it is not, it would not help. Whether the adjective is a superlative or a comparative it requires more candidates than the two who have tied at the top.
17. The alternative is ERS rule 5.6.2. (see para 10 above). That rule, if applicable, covers the case of two candidates for one vacancy having the same number of votes. In that event the one with the fewer votes at the first or earliest stage at which they have unequal numbers of votes drops out. On the facts of this case that would be Mr Grundy. The question is whether the candidates should be deemed to be elected under one or more of the rules referred to in the opening words. In my view rule 5.4.9 (see para 10 above) would apply. The votes for both Mr Tilley and Mr Grundy (874) equalled the total active vote (1792), as defined in paragraph 6.20, divided by one more than the number of places to be filled (2).
18. I reach the same conclusion in regard to the Standing Orders Committee paper. I have quoted its terms in paragraph 13 above. It is plain that paragraph d(i) applies paragraph c(iii). It is equally plain that the application of c(iii) would result in Mr Grundy being excluded.
19. In summary, Mr Tilley was validly elected if either or both of the ERS Rules or the Standing Orders Committee paper are applicable to elections conducted in accordance with the RMT Rules because they are to be implied into the RMT Rules. For the claimants it was submitted that they cannot be so implied, first, because each is contrary to the provisions of Rule 13(1) and, second, because the grounds on which such implications may be made are not satisfied in this case.
20. I do not agree that such an implication would be contrary to the express provisions of Rule 13(1). Counsel for the claimants relied on the provision in Rule 13(1)(a) which entitles each voter to vote for all the candidates in the order of preference. In that connection he relied on the provision of Rule 13(1)(c) obliging the returning officer to eliminate the lowest candidate and distribute his votes. It is submitted that to find Mr Tilley to have been elected is to nullify all those obligations; it denies the right to vote in order of preference and it nullifies the required distribution of subsequent preferences. In my view the obligations imposed by Rule 13(1) have been duly performed even if Mr Tilley is found to have been elected. At the stage of completing the ballot paper the voter has exercised his right to vote in order of preference. Moreover such right has been recognised and effected in both the first and the second count. Similarly the obligation to distribute the votes of those eliminated at the first count has been performed because it is that which gives rise to the tie. The tie-breaker, if one is applicable, is the third stage. It is not the revocation of the earlier stages.
21. The provisions of ERS Rule 5.6.2 or the Standing Orders Committee paper are not contrary to the provisions of Rule 13(1)(d) but are supplementary to them in providing the means of breaking the deadlock. Indeed both the ERS Rules and the Standing Orders Committee paper supply the machinery for breaking ties at any stage of the procedure. Accordingly I can see nothing in the express terms of Rule 13(1) to prevent the implication of the ERS rules or the Standing Orders Committee paper if it is otherwise justified.
22. Since this dispute arose the parties have tried to ascertain whether and with what result ballots before that now disputed have produced a tie. Four such occasions have been identified to which I should refer.

1. The first was in 1932. The occasion was the election of 8 parliamentary candidates. The detailed statement of the result shows that on the fourth count for the first vacancy there were two candidates with the fewest votes. Only one was eliminated before the fifth count; he was the candidate with the fewer votes on the first and the third count.
2. The second was in 1957. The occasion was the election of two representatives for the AGM. The detailed return shows that on the first, fourth, fifth and sixth counts there were two or more candidates with the fewest votes. Instead of determining one candidate for exclusion all such candidates were excluded and their votes redistributed in accordance with subsequent preferences.
3. The third was in 1958. The occasion was the election of the President. There were 14 candidates. They were placed in order in accordance with the first preferences and then redistributed in accordance with the subsequent preferences until after the twelfth count a winner emerged. The note indicates that ties were dealt with by excluding he who had the least support on the papers credited to the others.
4. The fourth was in 1996. The occasion was the election of members to the Standing Orders Committee. There were five vacancies and 45 voters. There was a tie for the fourth vacancy between J MacDonald and D Gott. The former was elected but the return does not indicate why. It did not matter because D Gott was elected to fill the fifth vacancy.
5. There was a fifth occasion when, in 2000 after this dispute had arisen, there was a tie for a vacancy on the Standing Orders Committee. This was resolved by requiring a re-ballot.

23. These examples (omitting (e) because this dispute had by then already arisen) demonstrate a number of points of some importance. First, though a tie had arisen on a number of occasions it had never been broken by a re-ballot. Second, on all occasions except the first (when there is no evidence on the point) the rules of RMT then in force made no provision for breaking a tie either in the manner in which it was broken or in any other way. Third, paragraph (c)(v) of the Standing Orders Committee paper shows that the tie which arose on the third occasion was broken by the specific application of the ERS rules. Fourth it does not appear that on the fourth occasion it would have made a difference which of ERS Rules of the Standing Orders Committee paper was applied to break the tie.
24. Accordingly the question arises whether either or both ERS Rules or the Standing Orders Committee paper should be implied into the RMT rules. Counsel for the defendants submits that they should be implied on the basis of custom or practice and necessity. This is disputed by counsel for the claimants.
25. It was common ground that an implication on the basis of custom and practice could only be made in cases where the custom was both reasonable and certain. But there was much debate as to the extent to which the custom must be known. Counsel for the claimants contended that it must be notorious amongst all those engaged in the trade. Counsel for the defendants submitted that it was enough if the custom or practice was known to those responsible for operating the procedures. The materiality of the distinction is plain from the evidence. The claimants point to a substantial body of direct and indirect evidence to the effect that the alleged custom and practice was unknown to them. This is unsurprising because most of them would not have had any experience of balloting procedures or how to break a tie.
26. Counsel for the defendants supports his submission by reference to the speech of Lord Wilberforce in Heatons Transport v TGWU [1972] ICR 308, 393/4. The issue in that case was the extent of the authority of shop stewards to be implied from custom and practice. At page 394 Lord Wilberforce referred with approval to a paragraph in the Handbook on the Industrial Relations Act produced by TUC that

"Trade union government does not however rely solely on what is written down in the rule book. It also depends upon custom and practice, by procedures which have developed over the years and which, although well understood by those who operate them, are not formally set out in the rules. Custom and practice may operate either by modifying a union's rules as they operate in practice, or by compensating for the absence of formal rules. Furthermore, the procedures which custom and practice lays down very often vary from workplace to workplace within the same industry, and even within different branches of the same union."

I was also referred to Harvey on Industrial Relations Vol. 4 paras 410-415 for the propositions that the Rule Book of a Union is often supplemented by other documents and by custom and practice.

27. Counsel for the claimants submitted that too great emphasis was being placed on the paragraph in the handbook to which Lord Wilberforce referred. He pointed out that the House of Lords were not called on to decide the extent to which the custom or practice must be known to the members.
28. I agree with counsel for the claimants. If it is asserted that custom or practice warrants the implication of a term into a contract then, in principle, it must be known to or readily ascertainable by all the parties to the contract. Sagar v Ridehalgh [1931] 1 Ch.310 is an example of the extent of the knowledge or notoriety required. A custom or practice alleged to justify an implication into the contract between all the members of the union and the union itself must, therefore, be known to or readily ascertainable by all the members not only those concerned with the conduct of elections.
29. But it does not follow from this conclusion that the implication of the ERS Rules or the Standing Orders Committee paper into the RMT rules should not be made. In Liverpool Corporation v Irwin [1977] AC 239, 253 Lord Wilberforce pointed out that there are a variety of implications the court thinks fit to make and they do not involve the same process. He pointed out that one of the other processes was the implication of terms needed to make the express terms work. This principle was amplified by Lord Coulsfield in Quinn v Calder Industrial Materials Ltd [1996] IRLR 126 para. 6 where he said

"Secondly, where parties have entered into a contract, but some situation emerges for which they have made no provision, it may be necessary for the court to work out, from the terms which they have actually agreed, what, by implication, they would have agreed as appropriate if they had applied their minds to the situation which has actually arisen. This form of implication also is not relevant in the present case. Again, there are cases in which it can be suggested that a contract is unworkable without the implication of a particular term, and that the absence of express provision for the term can be explained on the basis that it was so obvious that if the point had been mentioned, by an 'officious bystander', when the contract was being made, the parties would have agreed to it as a matter of course."

30. The same principles are apparent in paragraphs 13-001 to 13-008 of Chitty on Contracts 28th Edition where individual reasons for implying a term are described as to give efficacy to the contract, to be an obvious inference from the express terms or to complete the contract the parties made.
31. In my view each of those reasons justifies the requisite implication in this case. First, it is plain from the nature of the system called "the single transferable vote" that ties are likely to occur at any stage of the proceedings. All editions of the rules published by the Electoral Reform Society demonstrated both the need for a tie-breaker and the rules necessary to provide one. Second, it is obvious from the terms of Rule 13(1) that the provisions of that rule are incomplete as the means whereby to operate the system of "the single transferable vote" because they do not include an express tie-breaker either at the last stage of the process or at any of the earlier stages at which a tie may arise. Third, it is clear from the terms of Rule 13(1) that "the single transferable vote system" is literally unworkable in the events which have happened because Rule 13(1)(d) requires the process prescribed by Rule 13(1) to continue for ever. Without some implication there can be no tie-break or re-ballot. Fourth given the need for some implication the obvious implication is a tie-breaker and not a re-ballot both because that is what has always happened and because a re-ballot whenever a tie arose at an intermediate stage would be absurd. Fifth, as there does not appear to be any difference relevant to the circumstances of this case between the Rules of ERS and those of the Standing Orders Committee paper the form of implication required is obvious too. The simplest, and in my view the most straightforward and convenient to operate is the latter.
32. It follows that in my judgment the election of Mr Tilley was properly conducted in accordance with the rules of RMT. I will dismiss the claim of the claimants for a declaration to the opposite effect. Though there is no counterclaim it seems to me to be appropriate to make an affirmative declaration that Mr Tilley was validly elected. The other matter raised by the claim has not been pursued. Accordingly I will dismiss the claim in its entirety.
33. In these circumstances the second submission for the defendants referred to in paragraph 5 above does not arise. In case this matter goes further it may help if I indicate my views very briefly. The argument is founded on a dictum of Walton J in Brown v Amalgamated Union of Engineering Workers [1976] ICR 147, 159 that once the result is declared the election is at an end so that no fresh ballot may be ordered. This dictum has been followed in Veness and Chalkley v National Union of Public Employees [1992] ICR 193, 196-7; Douglas v Graphical, Paper and Media Union [IRLR 426 and Wise v Union of Shop, Distributive and Allied Workers [1996] ICR 691.
34. But as Walton J recognised the finality of the election cannot validate an election which was a nullity because it was not conducted in accordance with the rules. If contrary to my view the implication of the tie-breaker is not permissible then Rule 13(1)(d) has not operated to bring the election to an end. But even if it had, on this assumption, the result of the election declared by the Council of Executives on receipt of the election result sheet would not have accorded with the rules of RMT and must have been a nullity. Insofar as it is material the fact that the election had not been conducted in accordance with the rules was apparent on the face of the election result sheet.
35. In this connection the defendants also suggested that the only recourse open to the claimants would have been to apply to the Certification Officer or to the Court under ss.55 and 56 Trade Union and Labour Relations (Consolidation) Act 1992 and that it was now too late to do so. But this could only be so if the Union had failed to comply with any of the requirements of Chapter IV. It was not shown to my satisfaction that what happened in this case amounted to a failure to comply with a requirement of the Act. Accordingly I would reject this submission too.