Conservative and Unionist Party v Election Commissioner
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson,Lady Justice Smith,Lord Justice Maurice Kay |
| Judgment Date | 23 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1332 |
| Docket Number | Case No: C1/2010/0570 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2010 |
[2010] EWCA Civ 1332
IN THE COURT OF APPEAL (CIVIL DIVISION)
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Hon. Mr Justice Keith
Before: Lord Justice Maurice Kay (Vice President of the Court of Appeal Civil Division)
Lady Justice Smith
and
Lord Justice Leveson
Case No: C1/2010/0570
CO/3378/2009
Mr Gavin Millar QC (instructed by Steel & Shamash) for the 1 st Interested Party
Mr David Holgate QC and Mr David Forsdick (instructed by Spenser Underhill Newmark LLP) for the Claimant
The Respondent and the 2 nd Interested Party did not appear and were not represented.
Hearing date: 4 November 2010
Lord Justice Leveson:
On the face of it, this appeal concerns the construction of technical provisions contained within the Representation of the People Act 1983 (“the 1983 Act”) in connection with the costs of an election petition and the inter-relationship between those provisions and the wider jurisdiction relating to costs set out in the Senior Courts Act 1981 (“the 1981 Act”) and the Civil Procedure Rules. In the appellant's skeleton argument, the point is made that underlying this apparently dry issue of construction is a far more significant concern relating to the policing of electoral probity and the responsibility that political parties have in relation to the costs of any challenge to that probity.
The issue arises in this way. On 3 May 2007, there was an election in the Central Borough Ward of Slough Borough Council which was contested by five candidates including Eshaq Khan for the Conservative Party and Lydia Simmons for the Labour Party. After the count, it appeared that Ms Simmons had come second to Mr Khan who had won with a majority of 120 votes. Thereafter Ms Simmons presented an election petition alleging corrupt and illegal practices relating to the entry of non-existent people on the electoral roll who had then applied for postal votes. After a 10 day hearing at which both sides were represented by leading counsel, Mr Richard Mawrey QC, the Election Commissioner assigned under s. 130(3)(b) of the 1983 Act (“the Commissioner”), determined that Mr Khan was guilty of such practices and he declared Mr Khan's election void. He also concluded that a number of Mr Khan's supporters were similarly guilty but it is important to emphasise immediately that it has never been suggested that Mr Khan's official agent or the Conservative Party or the Slough Conservative Association either were party to the frauds or had known anything about them.
By his judgment dated 18 March 2008, in addition to making the determinations to which I have referred, the Commissioner issued a Report to the High Court under s. 145(3) of the 1983 Act and ordered Mr Khan to pay Ms Simmons’ costs of the petition on an indemnity basis; these costs were subsequently assessed at £215,775.95 and, on 13 May 2008, a default costs judgment was issued for that amount (together with £130 being fixed costs). Attempts to enforce payment were unsuccessful and ultimately, Mr Khan was adjudged bankrupt with no apparent prospect of any distribution of funds to creditors. In addition, arising out of the election and its aftermath, Mr Khan was subsequently prosecuted; he was convicted and sentenced to a term of imprisonment.
Ms Simmons and her advisers then looked further for payment of the costs. They learned that an insurance policy effected by the Slough Conservative Association facilitated through Conservative Party Campaign Headquarters (“CCHQ”), had provided partial funding for Mr Khan's defence. They then sought an order from the Commissioner for disclosure from Mr Khan and his solicitors (“Penningtons”) of information relating to the insurance. Penningtons raised the question whether, as an election commissioner, Mr Mawrey QC was functus officio. By judgment dated 9 October 2008, he concluded that he was not but observed that, in any event, as a deputy judge of the Queen's Bench Division, he had jurisdiction to make “an order ancillary to a possible future application for payment of costs by a non party”. He made the order sought.
Penningtons complied with that order and, thereafter, Ms Simmons applied (both to the Commissioner in that capacity but also in the standard form for such notices in the High Court) to join The Conservative and Unionist Party (“the Conservative Party”) and the Slough Conservative Association to the election petition for the purpose of obtaining an order for costs. At that stage, solicitors for the Conservative Party (who had not previously been acting in the litigation) argued that Mr Mawrey was wrong to assume jurisdiction in his capacity as the Commissioner although the jurisdiction of the High Court to make such an order was accepted. Concern was also expressed whether it was appropriate for him to hear the matter given a number of his expressed views including comments about political parties funding the costs of litigants in an election petition. In the event, the Commissioner made it clear that he would follow his earlier judgment as to his jurisdiction as Election Commissioner but would hear the matter both in that capacity and as a deputy Judge of the Queen's Bench Division.
The Conservative Party was aggrieved that the Commissioner was not prepared to hear argument as to his jurisdiction as Election Commissioner notwithstanding that it had not had the opportunity to challenge the view that he expressed in his 9 October judgment. As a result, proceedings for judicial review were commenced in which it was contended that (a) an order for costs could not be made against an entity that was not a party to the election petition; (b) in any event, although this issue could be determined in the High Court, the role prescribed by the 1983 Act for the Election Commissioner had concluded; and even if both those submissions were wrong (c) in the light of his earlier observations, it was not appropriate for this particular Commissioner to hear the application given his previously expressed views.
The application came before Keith J who, following a two day hearing, accepted the proposition that the law did not permit an adverse order for the costs of an election petition to be made against a person or entity who was not a party to that petition. On the second issue, he considered himself bound by decisions of the Divisional Court and Court of Appeal in R. v. Cripps ex parte Muldoon to conclude that the Election Court ceased to exist when it made its determination under s. 145 of the 1983 Act. He declined to decide the third issue (on which Ms Simmons took a neutral stance). With the leave of Laws LJ, Ms Simmons appeals to this court against both adverse rulings; the Conservative Party seeks to raise the issue of whether the Commissioner should have recused himelf.
The Background Facts
To understand the significance of the dispute (and the reason for the attitude of the Conservative Party to the Commissioner's further consideration of it), it is necessary to say something more of the factual background which starts not with this election in Slough but with an earlier 2004 election in Birmingham in respect of which Mr Mawrey was also the election commissioner. He set out the outline of the problems of electoral fraud in that election in his judgment of 18 March 2008 in relation to the Slough election. In short, in Birmingham, he found that sections of the local Labour Party:
“…embarked on a massive programme of electoral fraud in which literally thousands of bogus postal votes were cast for the Labour candidates, securing their election by suspiciously large majorities in a year when Labour otherwise fared poorly.”
The Commissioner made it clear that there was no evidence that the national Labour Party had known of or connived in the Birmingham frauds but went on to observe that he identified no fewer than fourteen types of electoral fraud committed in the two wards concerned, commenting that postal voting on demand, however well intentioned, “had opened the floodgates to serious, organised and extensive fraud of frightening proportions”.
The Commissioner went on, in the Birmingham judgment, to criticise reassurance by the Government that the systems in place to deal with allegations of electoral fraud were “clearly working” by commenting that this “indicates a state not simply of complacency but of denial”. In the Slough judgment with which we are concerned, he considered the Electoral Administration Act 2006 which he described as “limited and unsatisfactory”, on the basis that it dealt with only one of the fourteen types of fraud in the Birmingham case but left “untouched” the other thirteen along with a fifteenth (described as ‘roll-stuffing’, that is to say casting votes by using names which appear on the Register but refer to people who have no right to be on it because they have moved away, died or been fraudulently added).
Against that background, he found that Mr Khan and his supporters had caused the names of non-existent people to be entered on the electoral register for the ward and had then applied for postal votes in their names. Further, forged tenancy agreements had been used in an attempt to establish the contrary: this was “a concerted campaign to resist the challenges to the Register”. He ended his judgment by reference back to the concerns he expressed in 2005 by saying:
“Despite ...
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