Erlam v Rahman
| Jurisdiction | England & Wales |
| Judge | Mr Justices Supperstone,Spencer,Mr Justice Supperstone |
| Judgment Date | 07 August 2014 |
| Neutral Citation | [2014] EWHC 2766 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: M/350/14 |
| Date | 07 August 2014 |
[2014] EWHC 2766 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
In the Matter of the Representation of the People Act 1983
And in the Matter of a Mayoral Election in the
London Borough of Tower Hamlets held on 22 May 2014
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honoruable Mr Justice Supperstone
The Honourable Mr Justice Spencer
(Sitting as a Divisional Court)
Case No: M/350/14
Francis Hoar for the Petitioners
James Laddie QC and Sarah Hannett (instructed by Messrs K & L Gates LLP) for the First Respondent
Timothy Straker QC (instructed by Messrs Sharpe Pritchard) for the Second Respondent
Hearing date: 28 July 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justices Supperstone & Spencer
This is the judgment of the Court to which both members have contributed.
Introduction
The Petitioners, all electors in the London Borough of Tower Hamlets ("the Borough"), have presented a petition challenging the Mayoral Election in the Borough held on 22 May 2014. The First Respondent, Mr Mohammed Lutfur Rahman, was the successful candidate. The Second Respondent, Mr John S. Williams, was the returning officer.
The petition was presented on 10 June 2014.
On 9 July 2014 the Petitioners applied for a Protective Costs Order ("PCO").
On 15 July 2014 the First Respondent applied to dismiss the petition under Rule 13 of the Election Petition Rules 1960 and/or the inherent jurisdiction of the court for want of particularity and abuse of process, on the basis that the Petitioners make a number of extremely serious allegations against him and/or his (unnamed) agents, including allegations of fraud and election offences, which are almost wholly un-particularised.
By e-mail dated 25 July 2014 Mr Francis Hoar, for the Petitioners, informed the parties that the Petitioners would apply to adjourn the PCO application at the hearing on 28 July 2014, and that if the application to adjourn was not successful, the application for a PCO would not be pursued.
On 28 July 2014 we heard the application to dismiss/strike out and the application to adjourn the application for a PCO.
On 29 July 2014 we announced our decisions in relation to the two applications in the following terms:
"First, the First Respondent's application to dismiss the petition. Having considered the submissions made by counsel and the documentation before the court, we have reached the firm conclusion, for reasons which we will give at a later date as soon as practicable, that:
(i) the petition is not a nullity, in whole or in part;
(ii) it is not appropriate to strike out any of the grounds contained in the petition for want of sufficient particularity;
(iii) however, in our discretion we shall order that further particulars of the allegations in the petition be given in response to the Request for Further Information by the First Respondent dated 15 July 2014 and in relation to paragraph 6 of the petition as requested by the Second Respondent in the letter from Sharpe Pritchard dated 18 July 2014, such further particulars to be given by 4pm on 18 August 2014.
Second, the Petitioners' application to adjourn their application for a protective costs order. We refuse this application to adjourn and dismiss the application for a protective costs order dated 9 July 2014."
We now give our reasons for the two decisions.
(1) The application to dismiss the petition
Mr James Laddie QC, for the First Respondent, submits that in breach of Rule 4(1)(d) of the Election Petition Rules 1960 ("the 1960 Rules") and in breach of common law requirements of fairness, the petition does not disclose the factual allegations with sufficient or any particularity; that being so, he submits, the petition should be struck out as being an abuse of process.
Legislative Framework
The procedure for questioning a local government election is set out in Part III of the Representation of the People Act 1983 ("the 1983 Act").
Sections 127–135A of the 1983 Act relate to the "Questioning of a local election", which includes the mayoral election which is the subject of the present petition. Section 127 provides that
" 127 Method of questioning local election
An election under the local government Act may be questioned on the ground that the person whose election is questioned—
(a) was at the time of the election disqualified, or
(b) was not duly elected,
or on the ground that the election was avoided by corrupt or illegal practices or on the grounds provided by section 164 or section 165 below, and shall not be questioned on any of those grounds except by an election petition."
Section 164 states:
" 164 Avoidance of election for general corruption etc
(1) Where on an election petition it is shown that corrupt or illegal practices or illegal payments, employments or hirings committed in reference to the election for the purpose of promoting or procuring the election of any person at that election have so extensively prevailed that they may be reasonably supposed to have affected the result—
(a) his election, if he has been elected, shall be void, and
(b) he shall be incapable of being elected to fill the vacancy or any of the vacancies for which the election was held.
(2) An election shall not be liable to be avoided otherwise than under this section by reason of general corruption, bribery, treating or intimidation.
(3) An election under the local government Act may be questioned on the ground that it is avoided under this section."
Section 165 states:
" 165 Avoidance of election for employing corrupt agent
(1) If at a parliamentary or local government election a candidate or his election agent personally engages as a canvasser or agent for the conduct or management of the election any person whom he knows or has reasonable grounds for supposing to be subject to an incapacity to vote at the election by reason—
(a) of his having been convicted or reported of any corrupt or illegal practice within the meaning of this Act…
the candidate shall be incapable of being elected to fill the vacancy or any of the vacancies for which the election is held.
(2) A local government election may be questioned on the ground that the person whose election is questioned was, at the time of the election, by virtue of this section incapable of being elected."
Section 129 of the 1983 Act provides, so far as is material:
" 129 Time for presentation or amendment of petition questioning local election
(1) Subject to the provisions of this section, 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.
(2) If the petition complains of the election—
(a) on the ground of a corrupt practice, and
(b) specifically alleges that a payment of money or other reward has been made or promised since the election by a candidate elected at the election, or on his account or with his privity, in pursuance or furtherance of corrupt practice,
it may be presented at any time within 28 days after the date of the alleged payment or promise, whether or not any other petition against that person has been previously presented or tried.
(3) If the petition complains of the election—
(a) on the ground of an illegal practice, and
(b) specifically alleges a payment of money or other act made or done since the election by the candidate elected at the election, or by an agent of the candidate or with the privity of the candidate or his election agent, in pursuance or in furtherance of that illegal practice,
it may be presented at any time within 28 days after the date of that payment or act, whether or not any other petition against that person has been previously presented or tried.
(4) If the petition complains of an election where election expenses are allowed on the ground of an illegal practice, it may be presented at any time within 14 days after the day specified in sub-section (5) below.
(5) ………
(6) An election petition presented within the time limited by sub-section (1) or sub-section (2) above may for the purpose of complaining of the election upon an allegation of an illegal practice, be amended with the leave of the High Court within the time within which a petition complaining of the election on the ground of that illegal practice could, under this section, be presented. …"
Section 182 provides for the making of rules of procedure. The relevant rules are the 1960 Rules.
Section 128(3) of the 1983 Act provides:
"(3) The petition shall be in the prescribed form signed by the petitioner and shall be presented in the prescribed manner—
(a) in England and Wales, to the High Court;"
Section 185 provides that "prescribed" means "prescribed by rules of court". This is a reference to the 1960 Rules.
The Election Petition Rules 1960
Rule 4 of the Election Petition Rules 1960 provides as follows:
" 4.–(1) A petition shall be in the form set out in the Schedule to these Rules or a form to the like effect with such variations as the circumstances may require, and shall state—
…
(d) the grounds on which relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved;
and shall conclude with a prayer setting out particulars of the relief claimed."
The Petition
The material parts of the petition read as follows:
"4. At the election the first named Respondent and/or his agents were...
To continue reading
Request your trial
-
Michael Greene v Lisa Forbes
...them. This is not a question of degree of specificity or particularity, which was the subject of discussion by the Court in Erlam and Others v Rahman and Others [2015] 1 WLR 231 at [20] – [40]. It is a question of the entitlement to make the allegation at all. This is all the more importan......