Stoddart & Hume v Gartland & Little
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone,Mr Justice Jay |
| Judgment Date | 08 May 2014 |
| Neutral Citation | [2014] EWHC 2817 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: M348/13 |
| Date | 08 May 2014 |
[2014] EWHC 2817 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Supperstone
Mr Justice Jay
Case No: M348/13
Mr G. Price-Rowlands (instructed by Public Access) appeared on behalf of the Claimant
Mr T. Straker QC (instructed by Sharpe Pritchard) appeared on behalf of the Defendants
There are two applications before the court to strike out two petitions that arise from elections held on 2 May 2013 pursuant to section 7 of the Local Government Act of 1972 in respect of 84 seats on the Cumbria County Council. The result of the elections was declared the following day, on 3 May 2013.
The council has 84 elected members, each representing a single electoral division of the county. The election was a full council election for each electoral division. There are six districts within the council's administrative area, one of which is the Allerdale district. Within that district there are sixteen electoral divisions, one of which is Merryport South; another is Moss Bay and Moorclose. Petition Number 347/13 ( Jane Gartland & Ors v Keith Anthony Little & Harry Dyke) concerns Merryport South; petition number 348/13 ( Stephen Stoddart v Gerald Humes & Harry Dyke) concerns Moss Bay & Moorclose. In both cases the application to strike out the proceedings has been taken out by Mr Dyke, the returning officer, who has been made, in accordance with section 128(2) of the Representation of the People Act 1983, a respondent to the petition.
Mr Timothy Straker QC appears on behalf of the second respondent on both applications. Mr Price-Rowlands appears for the petitioners in both sets of proceedings.
The procedure for questioning a local election is set out in Part III of the 1983 Act. The material parts of section 127(b) state that:
"An election under the Local Government Act may be questioned on the ground that the person whose election is questioned —
(b) was not duly elected …
and shall not be questioned on any [ground] except by an election petition."
Section 136(1) provides:
"(1) At the time of presenting an election petition or within three days afterwards the petitioner shall give security for all costs which may become payable by him to any witness summoned on his behalf or to any respondent."
Section 136(3) states:
"Within the prescribed time after giving the security the petitioner shall serve on the respondent in the prescribed manner—
(a) a notice of the presentation of the petition and of the amount and nature of the security, and
(b) a copy of the petition."
The prescribed time is set out in rule 6(1) of the Election Rules 1960, which provides:
"Within five days after giving the security, the petitioner shall serve on the respondent within the meaning of section 121(2) or section 128(2) of the Act and on the Director of Public Prosecutions a notice of the presentation of the petition, and of the nature and amount of the security which he has given, together with a copy of the petition and of the affidavit accompanying any recognisance."
The periods of three days and five days referred to in section 136(1), and section 136(3) and rule 6 respectively are calculated in accordance with section 119 of the Act.
The material facts in relation to the two petitions are as follows. In relation to petition 347/13, the four petitioners were persons who had a right to vote at the election. The petition was presented on Thursday, 23 May 2013 and so the petitioners had to apply to fix the amount for security for costs by Wednesday, 29 May 2013 (by virtue of section 119, Saturday, 25, Sunday, 26 and Monday, 27 May (which was the Spring Bank Holiday), are not computed when calculating the three days).
On 31 May the Senior Master, upon considering an application in relation to security for costs, ordered that the petitioners give security for costs in the sum of £2,500 by deposit of monies by 4:30pm on 5 June. It is understood that security for costs were paid on 5 June, and not therefore at the time of presenting the election petition or within three days afterwards. Moreover, the documents required to be served on the respondent by virtue of section 136(3) of the Act and rule 6 of the Rules were required to be served within five days of 24 May and the deadline for doing so lapsed on Wednesday, 5 June (Saturday 1 and Sunday 2 June were not computed when calculating the five days). However, those documents, save for a copy of the petition and the order of the Master, were not served by 5 June and indeed have never been served on either respondent.
In relation to petition number 348/13, the petitioner was a candidate in the election. The petition was presented on Thursday, 23 May, within time, and so the petitioner had to apply to fix the amount for security of costs by Wednesday, 29 May. With this petition, as with petition 347/13, the Senior Master, upon considering an application in relation to security for costs, ordered that the petitioner give security for costs in the sum of £2,500 by deposit of monies by 4:30pm on 5 June. Again, it is understood that security for costs were paid on 5 June, therefore not at the time of presenting the election petition, nor within three days afterwards. Further, the documents that were required to be served to the respondent by virtue of section of 136(3) of the Act and rule 6 of the Rules were required to be served within five days of 24 May and the deadline for doing so lapsed on Wednesday, 5 June. With the exception of a copy of the petition and the order of the Master, they too were not served within that time period.
Mr Straker submits that both petitions should be struck out on two grounds. First, the petitioners in respect of both petitions were in breach of section 136(1) by not giving security for costs at the time of presenting their election petitions or within three days afterwards. The Senior Master did not have the power or discretion to extend the time by which the security for costs was ordered to be paid. Second, the petitioners in both cases were in breach of section 136(3) of the Act and rule 6 of the Rules.
Mr Straker has drawn our attention to the decisions of the Court of Appeal in Ahmed v Kennedy [2003] 1 WLR 1821 and of Tugendhat J in Miller v Bull [2009] EWHC 2640 (QB). In both cases the petitioners had failed to serve on the respondents a notice stating the amount and nature of the security they had given. In Ahmed the Court of Appeal held that since the petitioners had not strictly complied with the statutory requirements and had fundamentally failed to effect timeous service of a proper notice, the petitions were nullified; and that accordingly, the Divisional Court was right to strike out the petitions.
In Miller Tugendhat J was persuaded that he was not bound to come to the same conclusion as that reached in Ahmed because, since the decision in Ahmed, Parliament had enacted amendments to the 1960 rules, in particular an amendment to rule 19 which, insofar as is material, now reads: "Any period of time prescribed by rules 5, 6 or 7 shall be computed in accordance with section 119 of the Act and shall not be varied by order or otherwise." The word "varied" replaced the word "enlarged" in the earlier version of the Rules.
Having regard to arguments made by reference to the Human...
To continue reading
Request your trial
-
Waghorn (Claimant/ Appellant) v Fry and Another (Defendants/ Respondents)
...existing law only strict compliance will do." 23 The solicitors for the Secretary of State also drew attention to the case of Stoddart and Hume v Gartland & Little [2014] EWHC 2817 which specifically considered the judgment in Ahmed and how it should be applied to the requirement to pay sec......