Ahmed v Kennedy; Ullah v Pagel

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Simon Brown,Lord Justice May,Lord Justice Clarke
Judgment Date12 Dec 2002
Neutral Citation[2002] EWCA Civ 1793
Docket NumberCase No: C1/2002/2242

[2002] EWCA Civ 1793

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (DIVISIONAL COURT)

(Mr Justice Hooper)

(Mr Justice Hunt)

Before

Lord Justice Simon Brown

(Vice-President of the Court of Appeal Civil Division)

Lord Justice May and

Lord Justice Clarke

Case No: C1/2002/2242

C1/2002/2243

Between
Hbib Ullah & Others
Appellant
and
(1) Martin Donald Pagel
(2) andrew Scallan
Respondents
&
Naim Ahmed
Appellant
and
Anthony Paul Kennedy
Respondent

N Pleming Esq, QC & N Giffin Esq (instructed by Messrs Patwa) for the Appellant Ahmed

N Giffin Esq (instructed by Messrs Patwa) for the Appellant Ullah

G Millar Esq, QC

(instructed by Messrs Steel Shamash) for the Respondents Pagel and Kennedy

J Goudie Esq, QC & P Oldham Esq

(instructed by City Solicitor, Manchester City Council) for the Respondent Scallan

Lord Justice Simon Brown
1

Before the court are two appeals against orders made by the Divisional Court (Hooper and Hunt JJ) on 11 October 2002 striking out the appellants' election petitions questioning the election of candidates in the local government elections held on 2 May 2002 respectively in the Aston Ward of the City of Birmingham ("the Birmingham case") and the Cheetham Ward of the City of Manchester ("the Manchester case").

2

The petitions were struck out on the grounds that the appellants in each case had failed to comply with a mandatory requirement of the Representation of the People Act 1983 (as amended) ("the 1983 Act") and of the Election Petition Rules 1960 (as amended) ("the Rules"). Put at its simplest, they had failed to serve on the respondents a notice stating the amount and nature of the security they had given.

3

The appeals are before this court by leave of the Divisional Court which expressed the view that "it is in the public interest that this matter be considered at the appellate level"; our decision upon the appeals will be "final and conclusive"—see s.157(1) of the 1983 Act.

4

The appellant petitioner in the Birmingham case is the unsuccessful candidate in that election; the respondent the successful candidate. The four appellant petitioners in the Manchester case were electors in that election; the first respondent was the successful candidate, the second respondent the returning officer. The returning officer was a necessary respondent under s.128(2) of the 1983 Act because the petition in the Manchester case made complaint of his conduct.

5

With that briefest of introductions let me next set out the most directly relevant provisions of the 1983 Act and of the Rules so as to provide the context for the comparatively few relevant facts.

The 1983 Act

6

So far as relevant the Act provides that:

"129(1)… 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.

136 Security for costs

(1) 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.

(2) The security shall be—

(b) in the case of a petition questioning an election under the local government Act, such amount not exceeding £2,500 as the High Court, or a judge of the High Court, directs on an application made by the petitioner, and shall be given in the prescribed manner by recognisance entered into by any number of sureties not exceeding four or by a deposit of money, or partly in one way and partly in the other; …

(3) 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.

(4) Within a further prescribed time the respondent may object in writing to any recognisance on the ground that any surety is insufficient or is dead or cannot be found or ascertained for want of a sufficient description in the recognisance, or that a person named in the recognisance has not duly acknowledged the recognisance.

(6) An objection to a recognisance shall be decided in the prescribed manner.

(7) If the objection is allowed, the petitioner may within a further prescribed time remove it by a deposit in the prescribed manner of such sum of money as will, in the opinion of the court or officer having cognisance of the matter, make the security sufficient.

(8) 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.

157 Appeals and jurisdiction

(2) Subject to the provisions of this Act and of the rules made under it, 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 and election court in the case of election petitions, and in particular the principles and rules with regard to

(a) agency,

(b) evidence,

(c) a scrutiny, and

(d) declaring any person elected in place of any other person declared not to have been duly elected,

shall be observed, as far as may be, in the case of a petition questioning an election under the local government Act as in the case of a parliamentary petition.

(3) 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.

182 Rules of procedure

(1) The authority having for the time being power to make rules of court for the Supreme Court may make rules for the purposes of … this Part of this Act [Part III].

185 Interpretation of Part III

In this Part of this Act, unless the context otherwise requires … 'prescribed' means prescribed by rules of court …"

The Rules

"2(4) 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.

5(1) Within three days after the presentation of the petition the petitioner shall apply without notice being served on any respondent within the meaning of Rule 6 to a master to fix the amount of security for costs which he is to give pursuant to s.136 of the Act.

6(1) Within five days after giving the security the petitioner shall serve on the respondent within the meaning of … s.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 effected.

7(1) Where the respondent intends to object to a recognisance on any ground mentioned in s.136(4) of the Act, he shall, within 14 days after service on him of the notice referred to in Rule 6, serve on the petitioner notice of his objection, stating the grounds thereof, and issue and serve on the petitioner an application notice to determine the validity or otherwise of the objection.

(2) The application shall be heard by a master, subject to an appeal to a judge within five days after the master's decision.

(3) If the objection is allowed, the master or judge having cognisance of the matter shall at the same time determine what sum of money will make the security sufficient, and the petitioner may within five days thereafter remove the objection by deposit of that sum.

13(1) An application by a respondent to dismiss a petition before the day fixed for the trial shall be made to the … Divisional Court.

19(1) Any period of time prescribed by Rules 5, 6 or 7 shall be computed in accordance with s.119 of the Act and shall not be enlarged by order or otherwise, but save as aforesaid rules 2.8 to 2.11 of the Civil Procedure Rules 1998 shall apply to any period of time prescribed by these Rules as if it were prescribed by the Civil Procedure Rules."

The Core Provisions

7

Section 136(3) and rules 6(1) and 19(1) lie at the heart of these appeals: read together, they provide on their face that "within five days after giving the security", a period which "shall not be enlarged", the petitioner shall serve on the respondent "(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".

The relevant facts

8

In each case the petition was presented within the 21 days permitted by s.129(1) and in each case the petitioners within the three days specified by s.136(1) obtained from the master an order that they should deposit £2,500 (the maximum) as security, in each case duly complying with the order in time. The petitioners in both cases thereafter had five days within which to serve on the respondent(s): "(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".

9

What in fact happened within the requisite five days was as follows:

i) In the Birmingham case there were served upon the respondent: (a) a letter from the petitioner's solicitors stating so far as relevant "I enclose an election petition by way of service"; (b) a...

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