England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 October 2002

Mr Justice Hooper:

1. This is the judgment of the Court.
2. Both of these cases arise out of the local government elections held on 2 of May 2002. Although the cases were listed for a separate hearing, it became clear that the issues in the two cases were identical or almost identical and we therefore heard them together. In both cases the respondents seek an order striking out the petitions on the grounds of failure to comply with what are said by the respondents to be the mandatory requirements of the Representation of the People Act 1983 ("the Act") and of the Election Petition Rules 1960 ("the Rules").
3. We shall, for convenience, call the two cases the "Birmingham" case and the "Manchester" case. At the outset of proceedings we struck out the part of the petition containing allegations against the second respondent, the returning officer, at his request, and with the consent of the petitioner. Although allegations were made in the petition against the second respondent the petitioner made it clear, at the time of service of the petition, that he did not intend to proceed against him.
4. Before examining the law we set out the agreed facts relating to what was served within the time limits by the solicitors for the petitioners in the two cases. In the Birmingham case the solicitor for the petitioner sent a letter (page 12 of the Birmingham bundle), a photocopy of the election petition (page 1) and a notice of an application to fix a security (page 31). In the Manchester case the petitioners served on the first respondent, the successful candidate in the elections, a photocopy of the election petition (page 6 of GS1) and the application to fix a security (pages 1-2 of GS1). All that the second respondent, the returning officer, received was a photocopy of the election petition. The photocopies of the election petitions were copies of the petitions as filed and thus all bore a copy of the standard Supreme Court stamp showing the date on which the petitions had been filed. These documents were received by the respondents within the time limits laid down by the Act and the Rules. There is no dispute that in both cases there was non-compliance with the provisions of the Act and the Rules. The petitioners did not seek an order extending the time limits.
5. The thrust of the argument on behalf of the petitioners is that this court should waive the defects in the exercise of its discretion under rule 3.10 of the Civil Procedure Rules. The thrust of the case presented by the respondents is that no such waiver is possible, the requirements of the Acts and the Rules being mandatory. Compliance is a condition precedent to the petition proceeding and therefore the petitions in both cases are a nullity.
6. We turn now to the relevant sections of the Act and of the Rules made pursuant to section 182 of the Act.
7. Section 129(1) of the Act provides that a petition questioning an election under the local government Act "shall be presented within 21 days after the day on which the election was held." The petitioners complied with that provision.
8. Section 136(1) provides: "At the time of presenting an election petition or within three days afterwards the petitioner shall give security for all costs which may become payable by him to any witness summoned on his behalf or to any respondent"
9. By virtue of section 136(2) the maximum amount of the security is £2,500 and shall be given either by a recognisance or by a deposit of money, or partly in one way and partly in the other. In this case the petitioners, within the necessary three days, obtained an order from the Master that they should deposit £2,500 as security. They complied with this order in time.
10. Subsection 136(3) (as substituted by the Representation of the People Act 1985 section 24, schedule 4, paragraph 48(d)) provides:

"Within the prescribed time after giving the security the petitioner shall serve on the respondent in the prescribed manner

(a) a notice of the presentation of the petition and of the amount and nature of the security and,

(b) a copy of the petition."

Neither the Act or the Rules lay down a prescribed form for giving the notice.

11. The reference to the prescribed time is a reference to the time as prescribed by the rules. Mr Giffin accepted that the reference to the amount and nature of the security must be a reference to the security which has been given. This is made clear in Rule 6 which provides:

"(1) Within five days after giving the security the petitioner shall serve on the respondent within the meaning of section 121(2) or section 128(2) of the Act and on the Director of Public Prosecutions a notice of the presentation of the petition and of the nature and amount of the security which he has given together with a copy of the petition and of the affidavit accompanying any recognisance.

(2) Service shall be effected in the manner in which a claim form is served and a certificate of service shall be filed as soon as practicable after service has been affected."

12. Neither the Act or the Rules give any guidance as to what a "a notice of the presentation of the petition" should contain. Atkin's Encylopaedia of Court Forms in Civil Proceedings (2nd Edition, 2000, volume 18 (1), page 263, form 13) includes a suggested notice. That reads as follows:

"NOTICE of presentation of election petition

TAKE NOTICE that an election petition, a true copy whereof is annexed hereto, relating to the above-mentioned election was duly presented to the Court by A. B., the petitioner therein mentioned, on .....20......

AND FURTHER TAKE NOTICE that [security has been given or it is intended to give security] as required by Section 136 of the Representation of the People Act 1983 by [recognisance to be entered into by N. O. of (address) [and P.Q of (address)] as sureties in the sum of [£ ....] or deposit by payment into Court of the sum of [£ ]3].

DATED the …..20….

(signature)

of (address) [Solicitors for the] petitioner A.B

To ….of (address)

13. It will be seen that in paragraph 1 of the form the solicitor is attesting to the fact that the election petition has been presented and when it was presented. The second paragraph is dealing with the requirement on a petitioner to inform the respondent "of the nature and amount of the security which he has given".
14. No such form was used in this case. In the Birmingham case the letter accompanying the petition said: " I enclose an election petition by way of service." As we have already said, the copy petitions which were served had the Supreme Court stamp showing when they had been issued. Although both respondents in the Birmingham case and the first respondent in the Manchester case received a copy of the application for an order fixing the amount of security, the respondents did not receive any document which would have shown them "the nature and the amount of the security" which had in fact been given. In the Birmingham case the required certificate of service was inaccurate as to what had been served.
15. Section 136 (4) provides that, within the prescribed time, the respondent may object in writing to any recognisance on grounds relating to the persons who have stood as surety. Subsection 7 enables the petitioner to put the matter right should an objection be allowed. Subsection 8 provides that if no security is given or if any objection is not removed then "no further proceedings shall be had on the petition."
16. Section 137 (1) provides:

"The petition shall be at issue as from the relevant time, as defined by subsection 2 below".

17. The relevant time is defined by reference to the time of the deposit of money or, in a case where the petitioner gives recognisance, the petition is at issue when the time prescribed for the making of any objections to that recognisance expires or from the time that any objection is disallowed or removed.
18. Rule 9(1) provides that within 28 days after the first day on which a petition is at issue, the petitioner shall apply by application for a time and place to be fixed for the trial. Should the petitioner fail to do that the respondent may do so within a further 28 days. If no application to fix a time or place for the trial is made by either then the matter is referred to a rota judge to fix the trial.
19. Section 138 imposes a duty on the prescribed officer to make out a list of all election petitions "at issue".
20. In the case of local government elections the trial of a petition is conducted by an election court (see section 130 of the Act). It is agreed that a preliminary application to strike out a petition is dealt with in this court.
21. It is not necessary to go into all the consequences of a successful petition. It is sufficient to say that not only may the successful candidate's election be declared void, but any person found in the report of the election court to have been guilty of any corrupt or illegal practice is, amongst other things, prevented from holding public office and may be prosecuted.
22. One of the principal aims of the Act and the Rules is to have the matters raised by an election petition resolved as speedily as possible. It is obviously important that if a fresh election is to be ordered, that it should take place as soon as possible.
23. Section 123(2) and section 130(5) give the election court in respect of the parliamentary elections and local elections the same powers, jurisdiction and authority as a judge of the High Court. Section 157(3), which applies at this stage of the proceedings, provides:

"The High Court has, subject to the provisions of this Act, the same powers, jurisdiction and authority with respect to an election petition and the proceedings on it as if the petition were an ordinary action within its jurisdiction."

24. Rule 2(4) provides:

"Subject to the provisions of the Act and these Rules, the practice and procedure of the High Court, shall apply to a petition under these rules as if it were an ordinary claim within its jurisdiction, notwithstanding any different practice, principle or rule on which the Committee of the House of Commons used to act in dealing with election petitions."

25. There is no dispute that, by virtue of the provisions set out in the preceding two paragraphs, the Civil Procedure Rules apply to election petition proceedings, subject to the provisions of the Act. Whether or not they apply subject to the provisions of the Rules is a matter of dispute to which we return shortly.
26. Section 157(2) provides that subject to the provisions of the Act and of the Rules:

"the principles, practice and rules on which committees of the House of Commons used to act in dealing with election petitions shall be observed, so far as may be by the High Court."

Mr Gavin Millar QC told us that the principles, practice and rules relating to such matter as agency and a scrutiny (referred to in subsection (2)) are still applied by the High Court. For example, if there is an issue as to whether the candidate announced to have been successful has in fact received more votes than another candidate, then the procedure adopted by the House of Commons prior to the enactment of the Parliamentary Elections Act, 1868, is applied. By that Act Parliament handed over to the courts the jurisdiction to deal with disputed parliamentary elections subject to the provisions of that Act. Subsequently, disputed local elections were made subject to similar procedures.

27. Mr Giffin submitted that whereas the Civil Procedure Rules are to be applied in election cases subject to the provisions of the Act, their application is not subject to the provision of the Rules. In other words if the election Rules are inconsistent with the Civil Procedure Rules, the latter prevails. He based that argument on the fact that in section 157(3) there was reference only to "subject to the provisions of this Act", whereas in section 157(2) there was reference to "subject to the provisions of this Act and of the rules made under it".
28. Mr Giffin places particular reliance on rule 3.10 of the Civil Procedure Rules. That rule provides:

"Where there has been an error of procedure such as a failure to comply with the rule or practice direction-

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error"

29. That rule authorises a court to remedy errors of procedure. He submits that this rule should be applied even though it may be inconsistent with the Rules. We do not accept that argument. We take the view that rule 2(4)of the election Rules properly sets out the position, namely that this court should apply the Civil Procedure Rules, subject to the provisions of the Act and of the Rules.
30. The last rule to which we wish to refer is rule 19.1 which provides as follows: "Any period of time prescribed by Rules 5, 6 or 7 shall be computed in accordance with section 119 of the Act and shall not be enlarged by order or otherwise "
31. Mr Giffin did not submit that rule 19 was "ultra vires". Thus, as we have indicated, the petitioners do not seek an order granting them an extension of time in which to file the necessary documents. Mr Giffin did, however, submit that rule 19 should not be interpreted so as to prevent the court from exercising its powers under rule 3.10 of the Civil Procedure Rules to waive the admitted errors. He argued that any such interpretation would run foul of the principles laid down in The Queen v The Secretary of State for the Home Department ex parte Saleem [2001] 1 WLR 443 (CA). For reasons which will become clear later, we do not need to decide that issue. We doubt very much, however, that the provisions of Rule 19 and any such interpretation can be said to be outside the powers of the rule making body by reference to the principles laid down in that case. Rule 19 does not deny the right of appeal, it merely regulates it.
32. Although Mr Giffin argued that there was a discretion under Rule 3.10 to waive any procedural irregularities, he accepted that, in practice, no court would permit the proceedings to continue if a necessary respondent had not been served in due time with a copy of the election petition. He submitted that the failure to serve a document telling the respondents "the nature and amount of the security" which had been given could properly be waived. In so far as the notice of presentation of the petition is concerned, he submitted that the service of a copy of the petition with the Supreme Court date stamp on it (together with a letter in the Birmingham case) sufficiently met the requirements of a notice of the presentation of the petition. In the alternative he submitted that if a signed notice of the kind in Atkin's Court Forms was required, then the failure to do so could properly be waived in particular in the light of the stamp on the petition.
33. We now turn to the authorities. We start with Williams v The Mayor of Tenby and Others (1879 5 CPD 135). This was an appeal from the order of Lopes J that a municipal election petition should be dismissed on the grounds of failure to comply with the procedural requirements. During the course of argument counsel for the petitioner, Sir H Giffard SG accepted that the time for presenting the petition could probably not be extended. He accepted:

" the policy of the statute would strictly limit the time within which proceedings may be taken to impeach the validity of an election, that the person elected may not be kept in uncertainty as to whether they will instituted or not."

34. He submitted that in so far as there had been a failure within due time to serve a notice of the petition, the petition had been published in the borough with the consequence, so he argued, that the respondents must have been aware of it.
35. The appeal was heard by Grove J and Lopes J. Grove J, in his judgment with which Lopes J agreed, examined the language of five of the provisions of the 1868 Act. He held that the requirement that the petition be presented within 21 days was a condition precedent and could not be dispensed with by the court (pages 136-137).
36. He held that the requirement to give security for costs within three days fell into the same category. He said:

"The petition must be presented within 21 days, and during that time the petitioners should read the Act and ascertain what they have to do."

37. Grove J then turned to the provision which required the petitioner within five days after the presentation of a petition to serve on the respondent in the prescribed manner "a notice of the presentation and of the nature of the proposed security and a copy of petition". This provision is similar to section 136(3) of the Act, which, however, requires notice of the amount and nature of the security which has been given, rather than of the nature of the proposed security. Grove J stated: "It is said that there would be hardship supposing money deposited, if mere omission of notices should prevent a petition. I see no more hardship than may occur in any case where a definite time is to be observed, and I see good reason why it should be so. There are two alternatives given, and it is reasonable that the parties should know which has been adopted, viz deposit or recognisance, and, if the latter, that he should be set instantly on inquiry whether the securities are good and valid or not."
38. Grove J then referred to the rule requiring any objection to the security to be made within five days and continued:

"So not only is the person depositing security limited by the rules as to time, but the person objecting to security is limited likewise. If we were to carve out of this procedure what is permissive and what is peremptory, we should launch persons into greater litigation than even they embark on, for we should be asked to vary the particular time in each case. I think the petitioners in these cases are advised by competent persons and ought to pursue the provisions of the Act." (pages 137-138)

39. Grove J concluded by saying that the provisions of the Act are peremptory, the terms to which he had referred were conditions precedent and had to be complied with for the petition to be heard.
40. Mr Giffin sought to distinguish that case. He submitted that it differed from this case in that no copy of the petition had been served on the respondent. Whilst accepting that difference, the judgment of Grove J makes it very clear that the requirement to serve a notice of the proposed security was a condition precedent. It would be a signal departure from that case to hold that the current requirement to inform the respondents of the nature and amount of security which has been given is a requirement that can be waived.
41. We turn to Devan Nair v Yong Kuan Teik [1966] 2 AC 31. In that case the Privy Council on appeal from the Federal Court of Malaysia held that in an election case the failure to observe the time for service rendered the proceedings a nullity. The Privy Council considered the case of Williams v The Mayor of Tenby and said that the case:

" has stood the test of nearly 90 years and seems to their Lordships plainly rightly decided ...." (page 45)

42. The relevant provisions of the Ordinance provided that the election petition shall be presented within 21 days of the published result of the election in the Gazette. The rules provided that if it was not possible to serve the respondent personally or through his solicitor, then the petitioners shall publish a notice in the Gazette stating that a petition had been presented. This was not done within the 21 days. The Privy Council concluded that the provisions of the rule were mandatory and the failure to observe the time for service rendered the proceedings a nullity. Reference was also made to the need for the respondent to know the case against him "so that he may collect his evidence as soon as possible" (page 45).
43. We turn to Absalom v Gillett [1995] 1 WLR 128 (Divisional Court). The case concerned an election in the City of London. The petitioners had been nominated as candidates in two wards and sought to withdraw from one of the wards. The alderman who was the presiding officer refused to accept the notices of withdrawal because they had not been attested. The petitioners had served the election petition on the alderman but not on the successful candidate. The court held that a successful candidate whose election was impugned by an election petition had the right to be heard and must be made a respondent to it. The court held that it had no power to enlarge the time for service of the petition on the successful candidate. It further held that the requirement of service on the candidate was mandatory and that having not been done, the court had no jurisdiction to entertain the petition. The court considered the cases of Williams and Devan Nair, amongst others, and concluded there was no material difference between the statutory provisions and rules in play in these authorities and those with which the court was concerned (page 137). Laws J giving the judgment of the court stated at the conclusion of the judgment:

"We greatly doubt whether the public interest in the speedy determination of election disputes -an interest which we readily acknowledge requires so draconian a regime as regards time for service as that created by rule 19 of the Election Petition Rules 1960. We should have thought that there should be scope for some limited judicial discretion to extend time, though no doubt it would be sparingly exercised, and only if very good cause were shown. But that is not the present position. Given the state of the law, the application to strike out must succeed."

44. Mr Giffin submitted that the approach to procedural requirements of the kind in this case has been substantially altered by the decision of the Court of Appeal in Secretary of State for the Home Department v Ravichandran (1999) 11 Admin LR 824. The Court in that case referred to the conventional approach of asking whether a procedural requirement should be categorised as "directory or mandatory" (page 826). Lord Woolf MR continued:

"Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped the provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances ... ." (pages 826-827)

45. Later in his judgment and following consideration of the speech of Lord Hailsham in London and Clydesdale Estates Ltd v Aberdeen District Council [1981] WLR 182,188-190, Lord Woolf concluded:

"Bearing in mind Lord Hailsham's helpful guidance I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test. The questions which are likely to arise are as follows:

(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)

(b) Is the non-compliance capable of being waived and, if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.

(c) If it is not capable of being waived or is not waived, then what is the consequence of the non-compliance? ( The consequences question.)

Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependent on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver."

46. Mr Giffin argued that the present case fell to be considered within paragraph (b). He submitted that this was not one of those rare cases referred to in the earlier cited portion of Lord Woolf's judgment in which the consequence of non-compliance is a nullity.
47. Mr Giffin also relied on the provisions of section 136(8). That provides: "If no security is given as required by this section or any objection is allowed and not removed as mentioned above, no further proceedings shall be had on the petition." He submitted that if Parliament had intended the same consequences to apply to a failure to comply with section 136(3), Parliament would have said so.
48. Mr Millar, on the other hand argued that the law relating to elections is unique and that Parliament intended the consequences of non-compliance with the principal procedural requirements to be the dismissal of the petition. He took us through the history of election law and pointed out how time limits were regarded as crucial, both before the 1868 Act and in the 1868 Act, the provisions of which we have already examined when looking at the case of Williams. Mr Millar submitted that the intention of Parliament is clear and that the Civil Procedure Rules cannot be used to circumvent the provisions. As to section 136(8), he submitted that this is a prelude to section 137 (the time when the petition is "at issue") and cannot be read to have the consequences for which Mr Giffin contended.
49. In our judgment the requirement in section 136(3) to serve, within the prescribed time, a notice of the presentation of the petition and of the amount and nature of the security which has been given does fall into that rare category of requirements, non-compliance with which makes the petition a nullity. We reach that conclusion based on the Act and not on the Rules. To assist in the speedy resolution of election petitions and to assist the respondent in gathering his evidence as soon as possible, it is vital that he is given the information from which he will learn that the petition is now "at issue". When he is told that the security has been given, then he knows that the petition is "at issue" (see section 137(1)) and he should start preparing his case. Furthermore if dissatisfied with any recognisance given, then he only has 14 days in which to object (rule 7(1)). Our conclusion accords with the authorities on election law which we have cited, the first two of which predate the 1983 Act. We do not agree with Mr Giffin that section 138(8) has the consequences for which he contends, namely that it is only a failure to give security in the manner required that has the consequence that the proceedings are brought to an end. He reads too much into the subsection.
50. No notice of the amount and nature of the security which had been given having been served on the respondents within the appropriate time the respondents' applications to strike out these petitions must succeed.
51. In those circumstances it is not necessary for us to consider whether the petition should also be struck out on the grounds that there was no notice of the presentation of the petition. Although section 136(3) refers to a "prescribed manner", there is, as we have said, no prescribed form in the Act or Rules. In the absence of a prescribed form we would have been minded to hold that serving on the respondents a copy of the petition duly stamped by the Supreme Court constituted sufficient notice of the presentation of the petition. The stamp tells the respondents that the petition has been duly presented to the court and upon which date.
52. We were shown a copy of the guide issued by the Election Petitions Office, a guide on which the solicitor for the petitioners in the Birmingham case says that she placed reliance. In answer to the question "How do I serve the election petition?", the guide states:

"You must serve a notice of the issue of the petition together with a copy of the petition and on the recognisance of any surety of each of the respondents in one of the following ways…"

We think that those who read the guide would be helped by a description of "a notice of issue of the petition" and what they should do in order to inform the respondents "of the nature and amount of the security" which they have given. As it stands the guide is not as helpful as it should be when, as in this case, a deposit of money has been made. The guide does, however, rightly make it very clear that failure to serve the required documents within five days of giving security for costs will have the consequence that no further action can be taken on the petition.

53. Whilst we share the doubts as expressed by Laws J in the last paragraph of the judgment in Absalom (set out earlier in paragraph 43 of this judgment), we have no doubt that the present state of the law permits no latitude if there is a failure to comply with the requirements of section 136(3) within the time prescribed by rule 6(1), namely five days after giving the security.
54. For these reasons we order the striking out of the petitions in both cases.