Conservative and Unionist Party v Election Commissioner
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith |
| Judgment Date | 19 February 2010 |
| Neutral Citation | [2010] EWHC 285 (Admin) |
| Docket Number | Case No: CO/3378/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 February 2010 |
[2010] EWHC 285 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Keith
Case No: CO/3378/2009
Mr David Holgate QC and Mr David Forsdick (instructed by Spenser Underhill Newmark LLP) for the Claimant
Mr Gavin Millar QC (instructed by Steel & Shamash) for the First Interested Party
Hearing dates: 12 and 13 January 2010
Mr Justice Keith:
Introduction
This case is all about a local election. It was won by the Conservative candidate. One of the defeated candidates was the Labour candidate. She claimed that the Conservative candidate had resorted to postal vote fraud. In due course, his election was set aside by an election court on a petition presented by the Labour candidate, and he was ordered to pay the costs of the Labour candidate on an indemnity basis. He did not do so, and the Labour candidate now wants to get an order for her costs to be paid by the Conservative Party and the local Conservative association. The important issue which this claim for judicial review raises relates to the extent to which an order for costs can be made against someone who was not a party to the election petition, in particular against the political party of the candidate whose election was set aside.
There is a subsidiary question which the court is being asked to answer. If an order for costs can be made against someone who was not a party to the election petition, can the application for such an order be heard by the Election Commissioner who tried the petition in the election court (whether sitting as an Election Commissioner in the election court or sitting as a deputy High Court Judge in the High Court) or has it got to be heard by a High Court Judge sitting in the High Court? The Labour candidate wants the application to be heard by the Election Commissioner who tried the petition, perhaps because those who are advising her think that the application will have a better chance of success before him. The Conservative Party contends that the Election Commissioner cannot and should not hear the application because
(a) the election court convened to hear the Labour candidate's petition ceased to exist when it ruled on the petition, and the role of the Election Commissioner is now over, and
(b) it would not be appropriate for the Election Commissioner who tried the petition to consider the application – whether in the election court or the High Court – in view of observations he previously made, including some comments about political parties funding the costs of parties to an election petition.
Although not relevant to any of the issues I have to decide, it should be recorded that the Conservative candidate was eventually prosecuted for postal vote fraud. He was convicted and sentenced to a term of imprisonment. The defeated Labour candidate did not stand in the subsequent by-election which took place. I was told that by then “she had probably had enough”. The by-election was won by a different Labour candidate. All references in this judgment to sections of an Act are references to sections of the Representation of the People Act 1983 (“the Act”) unless otherwise stated.
The relevant facts
The election. The election with which this case is concerned was an election in the Central Borough Ward of Slough Borough Council. There were five candidates. They included Eshaq Khan, the Conservative candidate, and Lydia Simmons, the Labour candidate. The election took place on 3 May 2007. Mr Khan won the election with a majority of 120 votes over Ms Simmons who came second.
The election petition. On 24 May 2007, Ms Simmons presented an election petition questioning Mr Khan's election. Section 130(1) required the petition to be tried by “an election court” consisting of a commissioner assigned under section 130(3)(b) to try it by the judges on the rota for the trial of parliamentary election petitions. Mr Richard Mawrey QC was appointed the Election Commissioner to try the petition. He is the defendant to this claim by the Conservative Party, though he has taken no part in the proceedings. The trial of the petition took place over ten days in January and February 2008 at Slough Town Hall. Mr Khan was represented by solicitors (Penningtons) and leading counsel. It was subsequently said that they were regularly instructed by the Conservative Party in matters of election law, and this was not disputed. Mr Mawrey gave judgment on 18 March 2008. He found that Mr Khan and his agents 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. In doing so they had been guilty of corrupt and illegal practices, including the corrupt practice of impersonation. These practices could reasonably be supposed to have affected the result of the election, and he therefore declared Mr Khan's election void. He ordered Mr Khan to pay Ms Simmons’ costs of the petition, which were to be assessed on an indemnity basis unless otherwise agreed. It should be made clear that when Mr Mawrey referred to Mr Khan's agents, he was referring to Mr Khan's supporters, not to his official agent who no-one had suggested had been a party to the frauds or had known about them. The same goes for both the Conservative Party and the Slough Conservative Association.
In his report to the High Court of the same date, Mr Mawrey made scathing remarks about the systems of electoral registration and postal voting, which in his view did not contain any effective safeguards against the kinds of fraud which Mr Khan and his supporters had practised. These systems, he said, were as vulnerable to systematic and widespread fraud as they had been when he had reported to the High Court at the conclusion of the trial of two election petitions relating to postal vote frauds in two wards of Birmingham City Council at local elections in 2004. Statutory reforms introduced since then had failed to address all but one of the frauds in Birmingham, and had not addressed at all the problem of fraudulent electoral registration which had marred the election in Slough. He added for good measure that the election petition was an inadequate and inappropriate mechanism to combat electoral fraud. It was not acceptable for electoral probity to be policed by what were, in effect, private civil actions brought at the expense of the unsuccessful candidate.
The inquiries about funding. In due course, a bill of Ms Simmons’ costs was submitted in the sum of £215,775.95. Since Penningtons did not raise any points of dispute about them, a default costs certificate was issued for that amount (plus £130.00 being the fixed costs on the judgment) on 13 May 2008. Attempts to enforce payment were unsuccessful, and in due course Mr Khan was adjudged bankrupt on a petition presented by Ms Simmons as a result of this debt. The Official Receiver was eventually to say that there was no apparent prospect of the distribution of funds to creditors. Accordingly, Ms Simmons decided to investigate how Mr Khan's defence of the election petition had been funded with a view to making an application for costs against, among others, the Conservative Party or the Slough Conservative Association, even though they had not been parties to the petition.
To that end, Ms Simmons’ solicitors asked Penningtons who had funded Mr Khan's defence. They responded that their fees had been paid by insurers, and that the policy limit had been exhausted, but that they were without instructions from Mr Khan, and could not disclose any further information. On being notified that Ms Simmons’ solicitors were proposing to apply to Mr Mawrey for an order requiring Mr Khan and Penningtons to disclose the information it sought, Penningtons said that the Election Commissioner was now functus officio, and that therefore Mr Mawrey had no power to consider the application. They cited the decision of the Court of Appeal in R v Cripps ex p Muldoon [1984] 1 QB 686 in support of that proposition.
In the meantime, Ms Simmons’ solicitors had decided to approach the Conservative Party and the Slough Conservative Association. Her solicitors said that they believed that the funding of Mr Khan's defence had been arranged by the Conservative Party, and they requested the Conservative Party or the Slough Conservative Association to meet Mr Khan's liability for Ms Simmons’ costs. Although they were told that Mr Khan had been able to obtain partial funding of his defence from insurers, no mention was initially made of who had arranged the insurance, though subsequently the Conservative Party's Treasurer informed Ms Simmons’ solicitors that the insurance had been taken out by the Slough Conservative Association, and that Conservative Party Campaign Headquarters (“CCHQ”) had simply collected the premium from the local association and had sent it on to the brokers. He added that when an association informs CCHQ of a potential claim, underwriters pass the claim to Penningtons who are the designated solicitors under the policy. Provided that Penningtons have the association's permission, they may “keep CCHQ informed of the incurring of costs from time to time from an insurance-cost point of view, as claims have a detrimental effect on further policy premiums”. He also said:
“Before the case went to trial, CCHQ were warned by Penningtons that the limit of insurance cover would be...
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