Julie Green v Patricia Josephine Hannah-Wood

Hearing date: 13 July 2023

Judgment Approved by the court for handing down (subject to editorial corrections)

Factual background: the election

On 4 May 2023, an election was held for the Town Council of Nelson in Lancashire. As the statement of the Second Respondent, the Returning Officer Ms Rouse, states, the Town Council is a parish council. The election on 4 May included election to represent the Marsden West Ward. The candidates were the Petitioner, Julie Green, standing for the Conversative Party and the First Respondent, Patricia Hannah-Wood, standing for the Labour Party.

It is not in dispute that Ms Green received 242 votes and Ms Hannah-Wood received 177 votes.

However, when the result was declared by the Returning Officer on 5 May 2023, the votes were transposed and it was declared that Ms Hannah-Wood had been elected and not Ms Green.

As Ms Rouse explained in her statement, the error arose because of the way in which the Count Supervisor recorded the votes. On the ballot paper Ms Green's name (Conservative) appeared first and Ms Hannah-Wood's name (Labour) appeared second. The Count Supervisor wrote the figures on a blank sheet of paper recording first the vote for Labour as 177 votes and then the vote for the Conservatives as 242. No names were given and this was in the opposite order from how they appeared on the ballot paper.

The results were then transposed on to the Declaration of Result of Poll which also gave Ms Green's name first and Ms Hannah-Wood's second. When the results were entered in the Declaration of Result of Poll, they were entered in the same order in which they appeared on the piece of paper. As a result, 177 votes was entered against Ms Green's name and 242 against Ms Hannah-Wood's.

The result was declared in accordance with the Declaration of Result of Poll. As the Returning Officer left the podium, the Count Supervisor informed her of the error. Legal advice was taken almost immediately and that advice was that the Returning Officer could not change what she had announced.

The petition

Section 127 of the Representation of the People Act 1983 provides the means by which a local election may be questioned. There is no issue that the election in this case fell within the definition of an election under “the local government Act” (which is a defined term in the Act).

Section 127 provides as follows:

“ 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.”

It is only section 127(b) which is engaged in this case. In accordance with section 129(1), a petition questioning an election on such grounds shall be presented within 21 days of the date on which the election was held. On 23 May 2023 Ms Green filed a petition in the Election Petitions Office of the King's Bench Division.

The petition sought relief including production and inspection of documents and a recount but, in my view, principally, that:

“…. it may be determined that Patricia Josephine Hannah-Wood was not duly elected and that Julie Green was duly elected and ought to have been returned, or in the alternative that the election was void.”

The petition alleged that there had been breaches of the statutory rules governing the conduct of elections, namely the Local Elections (Parishes and Communities) (England and Wales) Rules 2006/3055 and, specifically, of Rule 50, to which I refer further below. The petition alleged that:

(i) The Returning Officer did not declare to be elected the candidate to whom more votes had been given than to the other candidates in accordance with rule 50(1)(a).

(ii) The Returning Officer did not give notice of the name of such candidate to the proper officers of the Nelson Town Council and the proper officer of the district in which it is situated in accordance with rule 50(1)(b).

(iii) The Returning Officer did not give notice of the name of such candidate elected and of the total number of votes given for each candidate (whether elected or not) in accordance with rule 50(1)(c).

The resignation and events thereafter

On 2 June 2023, Ms Hannah-Wood resigned from her office of town councillor and she has taken no part in these proceedings.

It does not appear to be in dispute that, on 19 June 2023, notice was given, on the council's website, of a casual vacancy.

Also on 19 June 2023, Ms Green applied for re-count and for the trial date to be fixed in accordance with the Rule 9 of the Election Petition Rules 1960 which requires the application to be made by the petitioner to a rota judge within 28 days of the date on which the petition is at issue. The rule makes provision for the respondent to apply, if the petitioner fails to do so, and, if no application is made, for the matter to be referred to a rota judge who shall fix a time and place for trial.

On 7 July, the period allowed for electors to seek an election to fill the casual vacancy expired. No request for an election was made and the possibility of co-option to the Council arose. To date no-one has been co-opted to the Council.

On 7 July 2023, the Petitioner made an application for summary judgment under CPR Part 24.

There was correspondence between the solicitors for the Petitioner and the Returning Officer in which, amongst other things, the Returning Officer contended that summary judgment was not a procedural route available in respect of an election petition. On 10 July 2023, the Returning Officer made an application for the petition to be stated as a special case pursuant to section 146 of the Representation of the People Act 1983.

The procedural issue

In advance of the hearing of the summary judgment application, an issue arose between the parties as to whether an application for summary judgment was a procedural route open to the Petitioner.

The Returning Officer's position was that it was not. As Mr Straker KC submitted, in his skeleton argument, Part III of the Representation of the People Act 1983 provides a comprehensive mechanism for dealing with all legal questions arising on or after an election.

I do not intend to set out the provisions of the Act at length. As set out above, section 127 makes provision for questioning a local government election by petition. Section 130 makes provision for the appointment of commissioners for such trials and for the holding of such trials within the relevant local authority area (although the High Court may, in special circumstances direct otherwise). Section 136 makes special provisions for the petitioner giving security for costs. Section 139 deals with the trial of the petition.

Section 145 provides what happens at the conclusion of the trial and provides:

“(1) At the conclusion of the trial of a petition questioning an election under the local government Act, the election court shall determine whether the person whose election is complained of, or any and what other person, was duly elected, or whether the election was void, and the determination so certified shall be final to all intents as to the matter at issue on the petition.

…”

Section 146 (Special case for determination of High Court) provides:

“(1) If, on the application of any party to a petition made in the prescribed manner to the High Court, it appears that the case raised by the petition can be conveniently stated as a special case, the High Court may direct it to be stated accordingly and the special case shall be heard before the High Court.

…”

The Election Petition Rules, rule 11, provide simply that an application for a special case to be stated, pursuant to section 146(1), shall be made by application notice to a Divisional Court.

The stating of a special case is a means of enabling the court to determine the petition where it turns on a point of law and no facts are in issue. The decision on the point of law is the determination of the petition and it seems to me self-evident, therefore, that what the court must do is the same as what it must do following a trial – in other words that the provisions of section 145 apply equally to the determination of the petition by special case as they do to the trial of the petition.

The statutory provisions, however, also include:

(i) Section 157(3) as follows:

“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.”

(ii) Section 182 (Rules of procedure):

“(1) The authority having for the time being power to make rules of court for the Senior Courts may make rules for the purposes of Part II and this Part of this Act.

(2) In relation to the power conferred by subsection (1) above to make rules —

(a) that power shall be exercisable by statutory...