Waghorn (Claimant/ Appellant) v Fry and Another (Defendants/ Respondents)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Slade |
| Judgment Date | 13 February 2015 |
| Neutral Citation | [2015] EWHC 744 (QB) |
| Docket Number | Case No: QB/2014/0373 |
| Court | Queen's Bench Division |
| Date | 13 February 2015 |
[2015] EWHC 744 (QB)
Mrs Justice Slade
Case No: QB/2014/0373
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Royal Courts of Justice
Strand
London WC2A 2LL
Mr Waghorn Appeared in Person
No representation or appearance by the Respondents
Approved Judgment
Mr Waghorn appeals from the order of Master Leslie, acting Senior Master, made on 17 June 2014 by which the Master ordered that pursuant to section 136(8) of the Representation of the People Act 1983 no further proceedings should be had on his petition. Permission to appeal was given by Popplewell J on 10 November 2014. Mr Waghorn represented himself at the hearing before me. The Treasury Solicitors for the Second Respondent, the Secretary of State, relied on written submissions set out in a letter dated 4 December 2014 and did not attend the hearing. There was no appearance or representation for the First Respondent.
The background to this appeal is that Mr Waghorn was an unsuccessful candidate in the Compton ward in the local government election held on 22 May 2014 for Plymouth City Council. He presented an election petition on 9 June 2014 challenging the election of the successful candidate for the ward, Mr Fry, the First Respondent. It was alleged that the First Respondent was aided in being elected by the actions of the Second Respondent in the run-up to the election held on 22 May 2014.
The Treasury Solicitors wrote in their submissions on behalf of the Second Respondent that Mr Waghorn may be making an allegation against the Second Respondent, the Secretary of State, that the Department for Work and Pensions applied a sanction to his Jobseeker's Allowance from 16 to 29 May 2014 in the run-up to the election because in the period between 2 to 15 May 2014 he failed actively to seek employment and that this disadvantaged him in the election that then took place.
In his election petition Mr Waghorn asserted:
"6. The election of the First Respondent was procured by corrupt and/or illegal practices of undue influence by the Second Respondent.
7. The Second Respondent as a minister of the Crown has acted in a way which is made unlawful by section 6(1) of the Human Rights Act 1998 in violation of article 3 of the First Protocol to the European Convention in not ensuring the free expression of the opinion of the people in the choice of the legislature."
The procedure governing petitions questioning a local election is set out in Part III of the Representation of the People Act 1983. The material parts provide in section 136:
"(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.
(2) The security shall be —
…
(b) in the case of a petition questioning an election under the local government Act, such amount not exceeding £2,500 as the High Court, or a judge of the High Court, directs on an application made by the petitioner,
and shall be given in the prescribed manner by recognisance entered into by any number of sureties not exceeding four or by a deposit of money, or partly in one way and partly in the other, …
(8) If no security is given as required by this section … no further proceedings shall be had on the petition."
The Election Petition Rules 1960 ( SI 1960/543), as amended by the Election Petition (Amendment) Rules 1985 ( SI 1985/1278) made under the Representation of the People Act section 182, prescribe in rule 5(1) as follows:
"Within three days after the presentation of the petition the petitioner shall apply ex parte by summons to a master to fix the amount of security for costs which he is to give pursuant to section 136 of the Act."
The period of three days in section 136(1) is calculated in accordance with section 119 of the 1983 Act.
Mr Waghorn complied with rule 5(1) by accompanying his petition by an application notice that the Senior Master make an order:
"… that there be no order for security of costs by virtue of section 136(2)(b) of the Representation of the People Act because of the actions taken upon the petitioner by the Second Respondent."
Mr Waghorn had been in receipt of Jobseeker's Allowance and housing benefit and had been issued with a food bank certificate. However, in the period between 16 to 29 May 2014 sanctions were applied to the receipt of his Jobseeker's Allowance so that his weekly cash receipts were reduced to about £15.
There are on the court file two versions of an order made by Master Leslie on the application to fix the amount of security for costs. Both fix the amount to be paid into court at £10. One is dated 9 June 2014 and sealed on 10 June. This provides the amount of £10 to be paid into court within three days of the issue of the petition. The second, which is dated and sealed on 10 June 2014, orders that:
"The security for costs of £10 to be paid into court within three days of service of this order on him."
No payment into court was made by Mr Waghorn.
On 17 June 2014 Master Leslie ordered that:
"Pursuant to section 136(8) of the Representation of the People Act 1983 no further proceedings shall be had on his petition."
By e-mail of 18 June 2014 Mr Waghorn informed Geraint Evans, the clerk to the Election Petition Office, that he had received on that day the order of 17 June 2014. He wrote that he had not received the Order of 10 June 2014 regarding the giving of security for costs. On 20 June 2014 Mr Evans e-mailed Mr Waghorn a scanned copy of the order dated 10 June 2014. As Mr Waghorn has included in his bundle for the hearing of this appeal the order dated 10 June, not 9 June, and Mr Evans also sent to him the order dated 10 June 2014, it must be inferred that the Order sent required payment into court within three days of the service of the Order on Mr Waghorn rather than that which stated that payment was to be paid into court within three days of issuing the petition.
Mr Waghorn acknowledged that the Order of 10 June 2014 was served on him on 20 June. He tried to deliver a postal order for £10 to the office of the senior master in the Election Petition Office on 23 June 2014. He said that this was the earliest he could comply as 20 June 2014 was a Friday. The payment of £10 was not accepted as by order of Master Leslie on 17 June 2014 no further action was to be taken on the petition.
The appeal before this court is from the Order of 17 June 2014 that there be no further proceedings on Mr Waghorn's petition. Mr Waghorn stated that he did not receive an order from the court fixing the amount of security in the prescribed time. He tried to pay the deposit of £10 within the time specified in the order, namely:
"… within three days of service of this order on him."
The grounds of appeal in the appellant's notice are stated as follows:
"The petitioner makes grounds for appeal under the principle that the procedure for challenges to follow from bringing the challenge up to its determination, should be simple. And that as such it is necessary to eliminate formalism and avoid decisions of inadmissibility on account of the court's or a challenger's procedural error."
In this regard Mr Waghorn cited excerpts from the "Code of Good Practice in Electoral Matters (Guidelines and Explanatory Report)" adopted by the European Commission for Democracy Through Law (the Venice Commission) at the 51st and 52nd sessions which include the statement from the Organisation for Security and Co-operation in Europe, the office for Democratic Institutions and Human Rights. Mr Waghorn stated:
"8. The statutory requirements within the English legal system are complex and formal and failure fully to comply with them has led to decisions of inadmissibility. This is inconsistent with internationally recognised best practice and precludes the court's duty to uphold the 'European electoral heritage' in ensuring universal, equal, free, secret and direct sufferage by providing effective procedural guarantees."
Mr Waghorn prepared a skeleton argument which cites extensively from the Law Commission consultation paper on electoral law published on 9 December 2014. Reference is made, amongst other paragraphs, to paragraph 1.175 in which the paper commented on the case of Scarfe v Amin [2008] EWHC 2886 (QB) in which a returning officer applied to strike out a petition on grounds of formal defects and late service. Mr Waghorn cited paragraph 1.176 in which the Law Commission observed:
"… the Bill of Rights Act 1688 and the European Convention on Human Rights, was that free elections should include a procedure questioning elections. The Court held that it was wrong in principle to adopt an interpretation of the 1960 Rules which placed conditions upon the presentation of valid petitions which were more restrictive than necessary to achieve the certainty than is required, and which obstructed the determination of what opinion the voters had expressed."
Mr Waghorn also relied on the case of Miller v Bull [2010] 1 WLR 1861 of which the Law Commission observed at paragraph 1.179:
"Tugendhat J considered the public interest in the certain and swift resolution of disputes as to the validity and outcome of the elections, as formulated in case law. He concluded that the mandatory time limits were disproportionate to that legitimate aim, held that it could disregard the...
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董健莉 對 吳定霖及另二人
...v Gillett案並非闡述新論點，而是在追溯《區議會條例》第51條由來時，發現RPA 1983第128(2)條與第51條非常相似，並於該案有所詮釋，所以認為有助法庭。 28. 鐘大律師於補充書面陳詞中援引英國案例包括Waghorn v Fry and anor [2015] EWHC 744 (QB)及Akhtar and others v Jahan and others, Igbal and others v Islam and others [2005] All ER (D)...