Miller v Bull & Others

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Tugendhat
Judgment Date28 Oct 2009
Neutral Citation[2009] EWHC 2640 (QB)
Docket NumberCase No: M339/03

[2009] EWHC 2640 (QB)

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Tugendhat

Case No: M339/03

Between
Jim Miller
Claimant
and
(1) Chris Bull (Returning Officer of Herefordshire Council)
(2) Benson Ferrari
(3) Director of Public Prosecutions
Respondents

David Lock (instructed by Leigh Day) for the Petitioner

Ms Estelle Dehon (instructed by Legal and Democratic Services County of Herefordshire DC) for the Returning Officer

The Second and Third Respondents did not appear and were not represented

Mr Justice Tugendhat
1

The Petitioner applies for an extension of time for him to comply with the provisions of rule 6 of the Election Petition Rules 1960 (1960 SI 1960/543) (“the 1960 Rules”) as amended. That rule required him to serve notice on the Respondents of the amount and nature of the security which he had given in respect of the Petition which he had presented on 16 July 2009. The rule also required him to serve notice of the presentation of the petition, and a copy of the petition. He did that in time. He gave, in time, the security required, in the form of a money payment. By an error he failed to serve on the Respondents a further notice required by rule 6, namely notice of the amount and nature of the security. He sought to correct this error in respect of the First and Second Respondents by a notice dated 24 July, which he served about one week out of time. But by a second error, he omitted to serve that notice on the Director of Public Prosecutions (“the DPP”). He finally sought to correct that error by notice dated 20 August, which he served about four weeks out of time.

2

He therefore applies for an extension of time which would be of about four weeks.

3

If an extension of time, or relief from the sanction, is not granted, then, as is agreed between the parties, the legislation requires that the Petition be struck out. It is agreed that this is a case where there has been a compete failure to give the required notice in time. It is not suggested that this could be a case of a notice that is defective in some minor respect which the court might have some power to remedy. Because there is this agreement between the parties it is not necessary for me to set out the facts in any detail.

4

It is not uncommon for petitioners acting in person to make mistakes in attempting to comply with the rules, notwithstanding the fact that to a lawyer the rules appear clear enough. In this case the Petitioner simply made mistakes while doing his best.

5

The First Respondent (“the Returning Officer”) appears by Ms Dehon. She submits that the court has no jurisdiction, or power, to grant the extension, because that is what the Court of Appeal decided in Ahmed v Kennedy [2002] EWCA Civ 1793; [2003] 1 WLR 1820. But if the court does have power to grant an extension, the Returning Officer would not oppose the grant.

6

The Second Respondent (“Mr Ferrari”) is the successful candidate. The events that have given rise to the Petition and to this application are no way attributable to him. He finds himself involved in legal proceedings for which he has no personal responsibility. Nor could he avoid the litigation by reaching an agreement with the Petitioner (even if he were minded to do so). Parties to private law actions are free to compromise them, but that is not possible in proceedings relating to elections, where the outcome affects the public. He has courteously written to the court, but has not appeared, and did not need to appear. His stance is that he will accept whatever outcome or judgment the court thinks fit.

7

The DPP has also caused a letter to be written to the court stating that, while he cannot consent, neither does he have any objection to the grant of an extension of time, if the court has power to make such a grant.

8

It follows that none of the parties has submitted that the circumstances of this case are such that, if the court does have power to grant relief, then it should not do so. Nevertheless, I have considered the evidence, and the letter from Mr Ferrari to the court, in the light of CPR r.3.9. It is unnecessary to recite each sub-paragraph of that rule separately. There is no circumstance in this case which would weigh against granting relief, if the court has power to do that.

9

If the law today is as it was held to be in Ahmed, then the application before me is bound to fail. But in Ahmed at para 43 Simon Brown LJ said:

“… I would note that the question whether there should be “some limited judicial discretion to extend time” in cases like this (as suggested by the Divisional Court in Absalom v Gillett [1995] 1 WLR 128) can only be for Parliament”.

10

Since the decision in Ahmed, Parliament has enacted amendments to the 1960 Rules. The issue before me depends upon arguments addressed to me upon the rules as amended in 2003.

THE CHRONOLOGY OF THIS CASE

11

The essential facts as alleged in the petition are as follows. On 25 June 2009 an election was held of a Parish Councillor for the Leominster Town Council South Ward. On 15 June 2009 the Returning Officer declared that Mr Ferrari had been elected without contest. The Petitioner had wished to contest the election. He claims in his Petition that he was a candidate. He consulted officials at Leominster Town Council and received information about the completion of nomination papers. He submitted his papers on 28 May. On 29 May he was told by officials that he had been given the wrong guidance. On 3 June he in fact received from the Returning Officer a notice that the Returning Officer had decided that the paper nominating the Petitioner as a candidate was valid. But on 15 June he was informed that this paper was invalid. He wishes to challenge the decision that his nomination was invalid, and by his Petition dated 14 July 2009 he asks the court to determine that Mr Ferrari was not duly elected.

12

Nothing in this judgment is to be taken as expressing any view of mine as to the likely outcome of any trial of the petition. But the allegations are ones which it might be in the public interest to have investigated, whatever may be the outcome of any trial.

13

The period of 21 days for presentation of the Petition expired on 16 July, and the Petitioner duly presented his Petition within that time, on Wednesday 15 July. And it is accepted that on the same day he gave the security required in accordance with s.136(1) and (2) and Rule 5. As has generally been the case for some years now, security was given by deposit of money into court. It was ordered in the sum of £1,500, the maximum for a Parish Council Election. I am not aware of any election petition in respect of which the court has ordered security in a sum less than the maximum. I have therefore not cited the provisions of the legislation relating to security by recognisance.

14

Section 137 of the 1983 Act provides that, where the petitioner gives security for costs as required by deposit of money, then the petition shall be at issue from the time when the security is so given. In this case the Petition has therefore been at issue from 15 July 2009.

15

The Petitioner acted in person, without the benefit of legal advice until after the events that have given rise to this application. He has no legal training. Following a meeting and telephone conversations with officials of the Court, the Petitioner gave the series of notices in purported compliance with s.136(3) described above. Much space is devoted by the petitioner in his evidence to his dealings with court officials. There is no evidence from the court officials concerned, nor was there any need for it. Most of the petitioner's evidence does not advance his case. The fact that petitioners are so often acting in person means that court officials are commonly asked for assistance. And they do provide assistance. They are encouraged to, for example in Ahmed at para 41. But court officials are not legal advisers. The responsibility for compliance with the rules lies upon the petitioner and the petitioner alone. Having read the Petitioner's account of his communications with the court, it seems clear to me that the officials were going out of their way to try to help the Petitioner and are not in any way to be held responsible for the events that have occurred.

16

On 16 July 2009 the Court official sent to the Petitioner by email a form of notice, but there was an error in the address (it contained a full stop which should not have been there) and it did not reach him until it was resent on 23 July 2009.

17

On Friday 17 July the Petitioner served on each of the Respondents notice of the presentation of the petition, and a copy of the petition. But there was no reference to, and he gave no notice of, the amount and nature of the security that had been given, as required by s.136(3)(a). He therefore failed at that stage to comply with the remaining requirements of s.136(3).

18

On Friday 24 July he served on each of the First and Second Respondents (but not on the Director of Public Prosecutions) notice of the amount and nature of the security that he had given. This was as required by s.136(3)(a), save that he was out of time by about a week.

19

On 20 August 2009, the Petitioner gave the required notice to the Director of Public Prosecutions. But, as already noted, by that date, the five days prescribed by rule 6 for the service of such notices had long since expired.

THE LEGISLATION

20

The procedure for questioning a local election is set out in Part III of the Representation of the People Act 1983 (“the 1983 Act”). By section 127 of the 1983 Act, an election under the Local Government Act may be questioned on the ground that the person whose election is questioned was not duly elected, but this may not be done except by an election petition.

21

Section 128 provides for a petition to be presented only by...

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