Absalom v Gillett
| Jurisdiction | England & Wales |
| Date | 1994 |
| Court | Queen's Bench Division |
Local Government - Election - Petition - City of London ward election - Presiding officer notifying petitioners that candidature deemed withdrawn - Poll rendered unnecessary - Whether presiding officer in ward election “returning officer” - Whether petition incompetent for failure to join successful candidates as respondents - Whether time limit for service on respondent mandatory -
The petitioners were nominated as candidates in two ward elections in the City of London. Shortly before the date on which the elections were due to be held, the petitioners' election agent delivered their signed notices of withdrawal from one of the wards, but the alderman who was the presiding officer refused to accept the notices because they had not been attested. Since a candidate who was nominated for more than one ward was required to withdraw his candidature from all wards except one and if he did not do so he was deemed to have withdrawn from all, the presiding officer accordingly notified the petitioners that they were deemed to have withdrawn their candidature from both wards. In the event there were no more candidates than vacancies in the second ward and those candidates were declared elected without any poll being held. By an election petition to which the alderman was the sole respondent, as being the “returning officer” for the purposes of section 128(2) of the Representation of the People Act 1983F1 as applied to ward elections in the City of London by section 191(1), the petitioners sought the court's determination that their notices of withdrawal were valid and that they had been validly nominated for the second ward.
On an application by the respondent to strike out the petition:—
Held, (1) that a candidate in a City of London ward election was entitled to have recourse to the petition procedure under section 128(2) of the Representation of the People Act 1983 despite the absence of a poll; that “returning officer” in section 128(2) referred to the person in charge of the election procedure whether or not a poll was taken; and that, accordingly, the alderman was the returning officer for the purposes of section 128(2) and had been properly joined (post, p. 134D–F, G).
But (2), dismissing the petition, that a successful candidate whose election was impugned by an election petition had a right to be heard and should be made a respondent to it; that since the court had no power to enlarge the time for service of the petition on the successful candidates it was too late to join them as respondents; and that, accordingly, since the requirement of service in section 136(3) of the Act of 1983 was mandatory the court had no jurisdiction to entertain the petition (post, pp. 135A–D, E, H–136B, C, 138A–D).
The following cases are referred to in the judgment:
Carter v. Griffiths (unreported), 28 July 1981,
Copeland v. Jackson (unreported), July 1933
Devan Nair v. Yong Kuan Teik [
Greenway-Stanley v. Paterson [
Line v. Warren (
Melton Mowbray (Egerton Ward) Urban District Council Election, In re [
Williams v. Mayor of Tenby (
No additional cases were cited in argument.
MOTION
By an election petition dated 22 December 1993 the petitioners, John David Absalom, John William Brewster, Edwin Keith Graves and Peter Joseph Martinelli, sought the following relief: (a) that it be determined that their notices of withdrawal of their candidatures in Farringdon Without ward were valid, (b) that it be determined that the returning officer for Bassishaw ward invalidly rejected the petitioners' notices of withdrawal of their candidatures in Farringdon Without ward, (c) that it be determined that the petitioners had been validly nominated candidates at the election for Bassishaw ward and (d) that it be determined that David William Brewer and Ronald Derek Keep Edwards had not been duly elected as common councilmen for the Bassishaw ward for the ensuing year and that the election was void.
By a notice of motion dated 25 February 1994 the respondent, Sir Robin Danvers Penrose Gillett, sought an order pursuant to rule 13 of the
The facts are stated in the judgment.
Richard M. Price for the respondent.
Michael J. Burrell for the petitioners.
25 March. LAWS J. read the following judgment of the court. This is a respondent's application to have an election petition dismissed or struck out. It is made pursuant to rule 13 of the
It is necessary first to describe the relevant facts which, so far as we are aware, are not in dispute. The four petitioners were candidates at an election for four common councilmen for the Bassishaw ward of the City of London for 1994, the election, or wardmote, for which was held on 3 December 1993. Before noon on 17 November 1993, the petitioner's election agent had delivered their nomination papers and consent to nomination to the ward clerk of Farringdon Without ward, where there was also to be a wardmote, in this case for the election of 12 common councilmen, for the ensuing year. He had also delivered similar papers on the petitioners' behalf to the ward clerk of Bassishaw ward. It appears from the election agent's affidavit that there is nothing strange or sinister in the submission of candidates' papers for two ward elections. This is apparently a common practice in the City of London and, when it is done, those who have put their names forward, given the number of candidates known to be in the field in each election and the strength of support from the voters which it is thought they may enjoy, a tactical decision is made as to which election should be contested; then, notice of withdrawal from one or other ward election is given, so that in the result the persons in question advance their candidature in one ward only.
That is what the petitioners proposed to do in this case. They decided to withdraw as candidates in Farringdon Without ward. Accordingly, in the afternoon of 17 November 1993 their agent delivered notices of withdrawal signed by each of them to the ward clerk of Farringdon Without. But the notices were not attested by the signature of a witness.
Section 11(1) of the Act of Common Council of 14 July 1960 provides: “A candidate at a ward election may withdraw his candidature by notice of withdrawal signed by him and attested by one witness …” It is convenient also at this stage to set out section 11(3):
“A candidate who is validly nominated for more than one ward in the City must duly withdraw from his candidature in all those wards except one, and if he does not so withdraw he shall be deemed to have withdrawn from his candidature in all those wards.”
When the agent delivered the notice of withdrawal he was not, according to his...
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