Finch and another v Richardson
| Jurisdiction | England & Wales |
| Judge | Mr Justice Underhill |
| Judgment Date | 12 December 2008 |
| Neutral Citation | [2008] EWHC 3067 (QB) |
| Docket Number | Case No: 2008/L3 |
| Court | Queen's Bench Division |
| Date | 12 December 2008 |
[2008] EWHC 3067 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
IN THE MATTER OF: an Aldermanic Election for the Ward of Coleman Street
In the City of London held on 4 June 2008
and in the Representation of the People Act 1983
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat and
The Honourable Mr Justice Underhill
Case No: 2008/L3
Hearing date: 2nd December 2008
The Hon Mr Justice Tugendhat :
On 4 June 2008 the Aldermanic Election for the Ward of Coleman Street in the City of London (“the election”) was held. There were two candidates, the First Claimant, and Mr Richardson. The votes cast were 126 for the First Claimant and 102 for Mr Richardson. The First Claimant was accordingly elected. The Second Claimant was the agent of the First Claimant.
On 3 October 2008 the Claimants issued a claim form seeking relief under the Representation of the People Act 1983 (“the Act”) ss.86 and 167 from the consequences of (a) certain election expenses being incurred by or on behalf of the First Claimant in excess of the limit provided by for the Act and (b) an omission to make the necessary statements and declarations in relation to those expenses as required by the Act.
There are two relevant provisions for relief, under each of which this application is made: s.167 relates to illegal practices generally (including expenditure in excess of the permitted amount) and s.86 relates to failures as to returns and declarations.
Section 167 of the Act provides:
“(2) If it is shown to the court by such evidence as to the court seems sufficient…
(a) that any act or omission of any person would apart from this section by reason of being in contravention of this Act be an illegal practice,…
(b) that the act or omission arose from inadvertence or from accidental miscalculations or from some other reasonable cause of a like nature, and in any case did not arise from any want of good faith, …
and under the circumstances it seems to the court to be just that either that or any other person should not be subject to any of the consequences under this Act of the act or omission, the court may make an order allowing the act or omission to be an exception from the provisions of the Act making it an illegal practice,… and upon the making of the order no person shall be subject to any of the consequences under this Act of that act or omission”.
S.86 of the Act provides that a candidate or his election agent may apply for relief under that section to the High Court and that:
“(2)Relief under this section may be granted-
(a) to a candidate, in respect of any failure to deliver the return and declarations as to election expenses, or any part of them, or in respect to any error or false statement in them; or
(b) to an election agent, in a respect of the failure to deliver the return and declarations which he was required to deliver, or any part of them, or in respect to any error or false statement in them.
(3)The application for relief may be made on the ground that the failure, error or false statements arose….
(d) by reason inadvertence or any reasonable cause of a like nature and not by reason of any want of good faith on the applicant's part.
(4)The court may …..
(b)on production of such evidence of the grounds stated in the application and of the good faith of the application, and otherwise, as it considers fit, make such order for allowing an authorised excuses for the failure, error or false statement as it considers just”.
The Claim Form was served on the Lord Mayor of London and Mr Richardson. As required by the Act it was also brought to the attention of the Director of Public Prosecutions. The Crown Prosecution Service has written to say that the Director did not intend to be present at the hearing, and he has made no representations to the Court.
On 28 October 2008 the matter came before this Court (Lloyd Jones and King JJ). Submissions were made on behalf of the Claimants and on behalf of Mr Richardson. They were represented then, as they were before us, by Mr Millar QC and Mr Deane, respectively.
On 28 October an Order was made joining Mr Richardson as a defendant to the proceedings, and adjourning the matter to be re listed, as it has been before us. Orders were also made for the First Claimant to file a statement producing certain documents. It is to be noted that Mr Richardson did not present a petition in this case, and the time for presenting one had expired long before the Claimants made this application.
At the close of the hearing before us, we made an Order that the Claimants be relieved from all consequences of:
i) The election expenses incurred by or on behalf of the First Claimant at the election in the aggregate exceeding the maximum amount specified in s.76 of the Act as identified in the statements filed on behalf of the Claimants, and;
ii) The errors and/or false statements in the return and declarations as to election expenses delivered by them to the appropriate officer after the above election pursuant to sections 81 and 82 of the Act as identified in the statements filed on behalf of the Claimants.
We stated then that we would give our reasons in writing, as we now do.
The statements referred to in the Order are a statement dated 9 October 2008 by the First Claimant, a statement dated 8 October 2008 by the Second Claimant, a second witness statement by the First Claimant dated 7 October 2008 and a third witness statement of the First Claimant dated 12 November 2008. The second statement of the First Claimant had been made in response to a statement by Mr Richardson, and the statement dated 12 November 2008 was made in compliance with the order of this court made on 28 October 2008.
On 20 June 2008 the Second Claimant signed a return of expenses as required by s.81 of the Act. He gave the “amount of expenses incurred” as £145.38. This was accompanied by an invoice from Liberty International PLC (“Liberty”) addressed to the First Claimant in respect of stationery. The invoice was for a total of £130.48 for paper and envelopes. The First Claimant became chairman of Liberty in July 2005, amongst other responsibilities and positions that he holds. The difference between £145.38 and £130.48 is made up of items to the value of less than £20.00 for which no invoice or receipt is required. Also on 20 June 2008, the Second Claimant made a declaration pursuant to s.82 of the Act to the effect that the return of the election expenses was complete and accurate as required by law.
It is common ground that the permitted election expenses were a total of £305.26 in accordance with the Representation of the People (Variation of Limits of Candidates Election Expenses) (City of London) Order 2005. That is made up of 5.2 pence for each of the 755 electors, namely £39.26, plus a fixed amount of £266.
As already mentioned, the declared expenditure of £145.38 is made up of paper and stationery in the sum of £130.48, and a further sum £14.90. This sum was in respect of telephone calls the First Claimant made, and use of electricity, and one journey which he made from Wimbledon to Bank. He states, and it is not in dispute, that he did not use any postage. If these figures had been complete, then, given the limit of election expenses at £305.26, there would have remained at his disposal a further possible expenditure of £158.88.
The First Claimant qualified as a solicitor in 1969, and he has spent his professional life as a solicitor. First he was working for, and then he became a partner in, the firm now known as Linklaters. He became a senior partner, Head of Commercial Real Estate. He was a member of the firm's governing policy committee until shortly before his election as Sheriff. He left the firm in July 2005 to become Chairman of Liberty, and he remains a consultant both to the firm Linklaters and to Liberty.
As part of his employment with Liberty the First Claimant was required to be based at 40 Broadway, London, SW1. He was provided by Liberty with a car and driver for his exclusive use on a five days a week full time basis, in addition to secretarial support. His commitments to Liberty left him free to continue with a number of other commitments, both charitable and otherwise, with the agreement and knowledge of Liberty. As at June 2008 he estimates that he was attending approximately 150 meetings per year. Mr Adams was his driver, and he was employed wholly by Liberty. At the First Claimant's request, Mr Adams carried out a number of tasks for the election, including delivering election address documents to the electorate and “Vote Today” cards to the non-solicitor members of the electorate, and a small number of letters. Mr Adams also drove the First Claimant to five meetings. No money was paid by the First Claimant to Mr Adams or to Liberty, and no overtime was paid to Mr Adams by Liberty as a result of this work. It was largely carried out during his normal working hours.
Part II of the Act contains provision relating to services provided free of charge to a candidate. S.90C(2) provides that where this section applies, an amount of election expenses determined in accordance with this section is to be treated as incurred by the candidate, and the candidate's election agent is required to make a declaration of that amount, unless it is not more than £ 50. S.90C(1) provides that, where services are provided for the use or benefit of the candidate free of charge, and are made use of by the candidate in circumstances such that, if any expenses were to be (or are) actually incurred by the...
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