HABIB ULLAH & OTHERS v (1) MARTIN DONALD PAGEL (2) ANDREW SCALLAN [2002] EWCA Civ 1793

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (DIVISIONAL COURT)

(Mr Justice Hooper)

(Mr Justice Hunt)

[2002] EWCA Civ 1793

Case No Case No: C1/2002/2242

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Between

HABIB ULLAH & OTHERSAppellant

(1) MARTIN DONALD PAGEL (2) ANDREW SCALLANRespondents

NAIM AHMEDAppellant

ANTHONY PAUL KENNEDYRespondent

Before

Lord Justice Simon Brown

Lord Justice May

Lord Justice Clarke

N Pleming Esq, QC & N Giffin Esq (instructed by Messrs Patwa) for the Appellant Ahmed

N Giffin Esq (instructed by Messrs Patwa) for the Appellant Ullah

G Millar Esq, QC

(instructed by Messrs Gerald Shamash) for the Respondents Pagel and Kennedy

J Goudie Esq, QC & P Oldham Esq

(instructed by City Solicitor, Manchester City Council) for the Respondent Scallan

Hearing dates: 26th/27th November 2002

Date 12 December 2002

Lord Justice Simon Brown:

Before

[1]the court are two appeals against orders made by the Divisional Court (Hooper and Hunt JJ) on 11 October 2002 striking out the appellants' election petitions questioning the election of candidates in the local government elections held on 2 May 2002 respectively in the Aston Ward of the City of Birmingham ("the Birmingham case") and the Cheetham Ward of the City of Manchester ("the Manchester case").

[2]The petitions were struck out on the grounds that the appellants in each case had failed to comply with a mandatory requirement of the Representation of the People Act 1983 (as amended) ("the 1983 Act") and of the Election Petition Rules 1960 (as amended) ("the Rules"). Put at its simplest, they had failed to serve on the respondents a notice stating the amount and nature of the security they had given.

[3]The appeals are before this court by leave of the Divisional Court which expressed the view that "it is in the public interest that this matter be considered at the appellate level"; our decision upon the appeals will be "final and conclusive" - see s.157(1) of the 1983 Act.

[4]The appellant petitioner in the Birmingham case is the unsuccessful candidate in that election; the respondent the successful candidate. The four appellant petitioners in the Manchester case were electors in that election; the first respondent was the successful candidate, the second respondent the returning officer. The returning officer was a necessary respondent under s.128(2) of the 1983 Act because the petition in the Manchester case made complaint of his conduct.

[5]With that briefest of introductions let me next set out the most directly relevant provisions of the 1983 Act and of the Rules so as to provide the context for the comparatively few relevant facts. The 1983 Act

[6]So far as relevant the Act provides that:

"129(1) a petition questioning an election under the local government Act shall be presented within 21 days after the day on which the election was held. 136 Security for costs (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; (3) 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. (4) Within a further prescribed time the respondent may object in writing to any recognisance on the ground that any surety is insufficient or is dead or cannot be found or ascertained for want of a sufficient description in the recognisance, or that a person named in the recognisance has not duly acknowledged the recognisance. (6) An objection to a recognisance shall be decided in the prescribed manner. (7) If the objection is allowed, the petitioner may within a further prescribed time remove it by a deposit in the prescribed manner of such sum of money as will, in the opinion of the court or officer having cognisance of the matter, make the security sufficient. (8) If no security is given as required by this section or any objection is allowed and not removed as mentioned above, no further proceedings shall be had on the petition. 157 Appeals and jurisdiction (2) Subject to the provisions of this Act and of the rules made under it, the principles, practice and rules on which committees of the House of Commons used to act in dealing with election petitions shall be observed, so far as may be, by the High Court and election court in the case of election petitions, and in particular the principles and rules with regard to (a) agency, (b) evidence, (c) a scrutiny, and (d) declaring any person elected in place of any other person declared not to have been duly elected, shall be observed, as far as may be, in the case of a petition questioning an election under the local government Act as in the case of a parliamentary petition. (3) 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. 182 Rules of procedure (1) The authority having for the time being power to make rules of court for the Supreme Court may make rules for the purposes of this Part of this Act [Part III]. 185 Interpretation of Part III In this Part of this Act, unless the context otherwise requires 'prescribed' means prescribed by rules of court "

The Rules "2(4) Subject to the provisions of the Act and these Rules, the practice and procedure of the High Court shall apply to a petition under these Rules as if it were an ordinary claim within its jurisdiction, notwithstanding any different practice, principle or rule on which the Committee of the House of Commons used to act in dealing with election petitions. 5(1) Within three days after the presentation of the petition the petitioner shall apply without notice being served on any respondent within the meaning of Rule 6 to a master to fix the amount of security for costs which he is to give pursuant to s.136 of the Act. 6(1) Within five days after giving the security the petitioner shall serve on the respondent within the meaning of s.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. (2) Service shall be effected in the manner in which a claim form is served and a certificate of service shall be filed as soon as practicable after service has been effected. 7(1) Where the respondent intends to object to a recognisance on any ground mentioned in s.136(4) of the Act, he shall, within 14 days after service on him of the notice referred to in Rule 6, serve on the petitioner notice of his objection, stating the grounds thereof, and issue and serve on the petitioner an application notice to determine the validity or otherwise of the objection. (2) The application shall be heard by a master, subject to an appeal to a judge within five days after the master's decision. (3) If the objection is allowed, the master or judge having cognisance of the matter shall at the same time determine what sum of money will make the security sufficient, and the petitioner may within five days thereafter remove the objection by deposit of that sum. 13(1) An application by a respondent to dismiss a petition before the day fixed for the trial shall be made to the Divisional Court. 19(1) Any period of time prescribed by Rules 5, 6 or 7 shall be computed in accordance with s.119 of the Act and shall not be enlarged by order or otherwise, but save as aforesaid rules 2.8 to 2.11 of the Civil Procedure Rules 1998 shall apply to any period of time prescribed by these Rules as if it were prescribed by the Civil Procedure Rules." The Core Provisions

[7]Section 136(3) and rules 6(1) and 19(1) lie at the heart of these appeals: read together, they provide on their face that "within five days after giving the security", a period which "shall not be enlarged", the petitioner shall serve on the respondent "(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 relevant facts

[8]In each case the petition was presented within the 21 days permitted by s.129(1) and in each case the petitioners within the three days specified by s.136(1) obtained from the master an order that they should deposit £2,500 (the maximum) as security, in each case duly complying with the order in time. The petitioners in both cases thereafter had five days within which to serve on the respondent(s): "(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".

[9]What in fact happened within the requisite five days was as follows: i) In the Birmingham case there were served upon the respondent:(a) a letter from the petitioner's solicitors stating so far as relevant "I enclose an election petition by way of service";

(b) a photocopy of the election petition duly stamped by the Senior Master's Department of the Supreme Court; and

(c) a copy of the application notice to fix the amount of security in which the petitioner had stated amongst other things that he was in receipt of incapacity benefit with a weekly income of only £84.40, and also in receipt of a public funding certificate subject to ratification by the Legal Services Commission, and in which he asked that the amount of security for costs should be fixed "bearing in mind that I am on a low income and any order for costs is likely to be on the basis that it is not enforced without permission of the Court". ii) In the Manchester case, in which the petitioners were acting in person, copies of the election petition bearing the Supreme Court seal were posted through the first respondent's letter box and hand-delivered to the second respondent, in each case without any covering letter or other accompanying document. The judgment below - now reported at

[2002] 4 All ER 764

[10]I would pay tribute to the Divisional Court's judgment which, right or wrong, contains a very thorough analysis both of the relevant legislative provisions and of three obviously important decisions in this field: Williams -v- Mayor of Tenby (1879) 5 CPD 135; Devan Nair -v- Yong Kuan Teik

[1967] 2 AC 31

; and Absalom -v- Gillett

[1995] 1 WLR 128

. What essentially the Divisional Court held (see paragraph 49 of their judgment) was that the s.136(3) requirements "fall into that rare category of requirements, non-compliance with which makes the petition a nullity. We reach that conclusion based on the Act and not on the rules". In reaching that conclusion the Divisional Court, whilst sharing the doubts earlier expressed in Absalom -v- Gillett as to whether the public interest in the speedy determination of election disputes really requires so draconian a regime, nevertheless stated that they had "no doubt that the present state of the law permits no latitude if there is a failure to comply with the requirements of s.136(3) within the time prescribed" (paragraph 53). The earlier cases

[11]It is convenient at this stage to look at the four authorities most closely in point, the three considered by the Divisional Court together with an earlier authority which, for whatever reasons, was cited neither in any of the three later cases nor, indeed, to the court below: The Shrewsbury Petition: Young -v- Figgins

(1869) 19 LT 499

. Let me start with this. The Shrewsbury Petition

[12]Section 8 of the Parliamentary Elections Act 1868 was in substantially the same terms as s.136(3) of the 1983 Act. The petitioners there had properly complied with the section so far as service on the successful candidate went; they had not, however, served the returning officer who, as in the Manchester case before us, was a deemed respondent. Counsel for the successful candidate applied on this ground (and another ground not presently material) to strike out the petition. Counsel for the petitioners was not called upon. The short report in The Law Times records the brief judgment as follows:

"martin, b. said that even if [counsel] were right in his arguments he should not allow such formal objections to defeat the petition, rule 60 saying that 'no proceedings under the Parliamentary Elections Act 1868 shall be defeated by any formal objection'. He should therefore dismiss the summons."

[13]Rule 60 there referred to was in the Election Petition Rules of 1868 made by the three judges nominated for the trial of election petitions in England, one of whom was Martin, B, the judge in the Shrewsbury case. Williams -v- Mayor of Tenby

[14]Section 13(4) of the Municipal Elections Act 1872 was again in substantially the same terms as s.136(3) of the 1983 Act. No notice whatever having been given under the subsection, the respondent successfully applied to Lopes J to strike out the petition, that order being upheld by the Court of Common Pleas (Grove J, together with Lopes J). Grove J said this:

"It is said that there would be hardship supposing money deposited, if mere omission of notices should prevent a petition. I see no more hardship than may occur in any case where a definite time is to be observed, and I see good reason why it should be so. There are two alternatives given, and it is reasonable that the parties should know which has been adopted, viz deposit or recognisance, and, if the latter, that he should be set instantly on inquiry whether the securities are good and valid or not. [The judge then referred to the relevant rules which provided for any objection to the proposed security to be made within five days] So not only is the person depositing security limited by the rules as to time, but the person objecting to the security is limited likewise. If we were to carve out of this procedure what is permissive and what is peremptory, we should launch persons into greater litigation than even they embark on, for we should be asked to vary the particular time in each case. I think the petitioners in these cases are advised by competent persons, and ought to pursue the provisions of the Act. One other argument was founded on rule 44, that 'all interlocutory questions and matters, except as to the sufficiency of the security, shall be heard and disposed of before a judge, who shall have the same control over the proceedings under the [1872 Act] as a judge at chambers in the ordinary proceedings of the superior Courts '. That rule seems to leave the question where it is. If it is matter of procedure, then the judge will have some powers. But if the Act does not give these powers, then he has them not. The question still is whether the provisions of the Act are or are not peremptory. I think they are peremptory, and that the terms not complied with are conditions precedent which ought to be complied with before the petition could be presented. The appeal must be dismissed."

Devan Nair -v- Yong Kuan Teik

[15]Rule 15 of schedule 2 to the Election Offences Ordinance of Malaysia provides:

"Notice of the presentation of a petition, accompanied by a copy thereof, shall, within ten days of the presentation of the petition, be served by the petitioner on the respondent."

[16]The rule provides in certain circumstances for service by a notice published in the Gazette but such notice was in the event out of time. In giving their opinion that the respondent's appeal should be allowed and the petition struck out Lord Upjohn on behalf of the Privy Council said this:

"So the whole question is whether the provisions of rule 15 are 'mandatory' in the sense in which that word is used in the law ie, that a failure to comply strictly with the times laid down renders the proceedings a nullity; or 'directory', ie, that literal compliance with the time schedule may be waived or excused or the time may be enlarged by a judge. Circumstances which weigh heavily with their Lordships in favour of a mandatory construction are: (1) The need in an election petition for a speedy determination of the controversy . (2) In contrast, for example, to the Rules of the Supreme Court in this country, the rules vest no general power in the election judge to extend the time on the ground of irregularity. Their Lordships think this omission was a matter of deliberate design. The case of Williams -v- Tenby Corporation which has stood the test of nearly 90 years and seems to their Lordships plainly rightly decided, strongly supports the view that the provisions of rule 15 were mandatory. their Lordships cannot attribute weight to the circumstances that the rules contained no express power to strike out a petition for non-compliance with rule 15."

Absalom -v- Gillett

[17]There, as here, the Divisional Court (Laws and Forbes JJ) were concerned with an application under rule 13 to strike out a local government election petition for non-compliance with s.136(3) and rule 6: the petitioners there had served the notice on the returning officer but had not served the successful candidates. The court considered a number of authorities including Williams -v- Mayor of Tenby and Devan Nair -v- Yong Kuan Teik and at p137 said:

"There is, so far as we are aware, no material difference between the statutory provisions and rules in play in these authorities and those with which we are here concerned."

[18]Having then referred to further authorities as to who must be made respondents to election petitions, the court at p138 continued:

"It is quite plain that the whole of the case law to date is one way, and supports the proposition that a successful candidate whose election is sought to be impugned must be made a respondent, and that if he is not the petition cannot go forward. If a petition is to be brought, it must be so served [ie upon the successful candidate]. The requirement is mandatory. It follows that this petition is incompetent, and must be struck out. We reach this conclusion with very considerable regret. In the course of argument we made no secret of our view that, if the respondent's application was good, an injustice would be perpetrated. We remain of that view. This petition has at least arguable merits . We greatly doubt whether the public interest in the speedy determination of election disputes - an interest which we readily acknowledge - requires so draconian a regime as regards time for service as that created by rule 19 of the Election Petition Rules 1960. We should have thought there should be scope for some limited judicial discretion to extend time, though no doubt it would be sparingly exercised, and only if very good cause were shown. But that is not the present position. Given the present state of the law, the application to strike out must succeed."

[19]None of those authorities, of course, is binding upon us but, not surprisingly, the approach taken in the first is urged upon us by the appellants whereas the respondents rely strongly upon the later three cases. Before, however, I come to consider these authorities further, it seems to me important to arrive at a conclusion upon one of the central differences between the parties here, the question as to which set of procedural rules has priority, the Rules or the CPR. An important, perhaps crucial, element of the appellant's case is that, whatever the Rules provide, any failures to comply with them are amenable to the exercise of the High Court's discretionary powers under the CPR, most notably CPR 3.10 (and, if it is held that on true analysis the appellants here need an extension of time, CPR 3.1(2)(a)). These provide respectively as follows:

"3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction - (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error." "3.1(2) Except where these Rules provide otherwise, the court may (a) extend the time for compliance with any rule, practice direction or court order (even if an application for an extension is made after the time for compliance has expired) ."

[20]In support of the appellants' argument Mr Pleming QC relies heavily upon subsections (2) and (3) of s157 of the 1983 Act and what he describes as the "stark contrast in wording between [these] two adjacent subsections". Whereas s157(2) is made "subject to the provisions of this Act and of the rules made under it", s157(3) gives the High Court its powers under the CPR subject only to the provisions of the Act.

[21]Mr Millar QC for the respondents submits to the contrary that Part III of the Act and the Rules made under it together comprise a discrete and purpose-built statutory scheme which covers the High Court's role in the procedure and that where the legislation intends to provide for the softening of any mandatory requirement it expressly says so, as in rule 19.

[22]I have no doubt that Mr Millar is right. I would analyse the legislation as follows. Section 157(2) is directing the High Court and election court to observe certain principles and rules on which House of Commons committees used to act subject only to the provisions of the 1983 Act and the Rules. It is saying that the High Court and the election court cannot use those earlier principles and rules if they are inconsistent with the Act and the Rules but otherwise they must. Section 157(3) by contrast is saying simply that the High Court has all its ordinary powers subject to the Act. Given, however, that s182(1) expressly provides for rules of procedure for the purposes of Part III of the Act, it seems to me plain that these bespoke rules must inevitably prevail over any general rules in the CPR. That this is so, moreover, is borne out by rule 2(4) of the Rules which expressly makes the CPR "subject to the provisions of the Act and the Rules". In addition, of course, and consistently with s157(2), rule 2(4) gives the CPR priority over any different "practice, principle or rule" which the House of Commons committee used to observe.

[23]I therefore accept Mr Millar's submission that the legislation dictates the following hierarchy of provisions: first, Part III of the Act and the Rules made under s182(1); next the CPR; finally any residual "practice, principle or rule" of the House of Commons (likely to concern matters such as agency and scrutiny). It follows that in my judgment Mr Pleming is wrong in his contention that rule 19 "does not trump CPR 3.10 (or, if necessary, CPR 3.1(2)(a)) since the CPR are introduced by s157(3) and are not subject to the Rules".

[24]Given the primacy of the Rules over the CPR, it seems to me necessary next to consider the precise nature of the appellants' non-compliance with the legislation in these cases so as to reach a view whether the discretion which the court is being invited to exercise under the CPR is compatible or otherwise with the mandatory requirements of the Rules. It is, I think, helpful in this connection to recognise that non-compliance with s136(3) and rule 6 can take any one of three forms:(a) late service (ie service out of time);

(b) non-service of a necessary respondent (whether the successful candidate or the returning officer in a case where the latter is deemed or required to be a respondent - or, indeed, non-service of the DPP as is required by rule 6); or

[25]It is the appellants' case that their non-compliance is of the third kind: they served timeously but the documents they served were deficient in having failed to state "the amount and nature of the security" that had been given, there being no reference whatever to security in the Manchester case and in the Birmingham case no more than notice (by enclosure) of the original application for security to be fixed. The appellants seek in this way, first, to distance themselves from the authorities on which the respondents rely, all of which concerned the first two kinds of non-compliance; and secondly, to escape the impact of rule 19 which, of course, is directed solely to the enlargement of time and appears to have been regarded in Absalom -v- Gillett (although not in the Divisional Court here) as the most telling element of this "draconian regime".

[26]I regard this as a critical question in the case. If the appellants' contention be right - if they are indeed to be regarded as having satisfied the time requirements of the legislation and failed only as to the sufficiency of what they served - their argument that such non-compliance does not render the proceedings a nullity because the court has a dispensing power becomes altogether stronger. I propose, therefore, to deal with this question next.

[27]I have to say that for my part I find the appellants' contention unconvincing even in the Birmingham case. Service of an application form indicating that the master was being asked to fix security in a small sum is a very different thing from service of a notice stating the amount and nature of the security in fact ordered and given. In the Manchester case, I repeat, security was simply not mentioned at all. True it is that in both cases notice was given of the presentation of the petition (the service of the copy of the petition duly stamped by the Supreme Court being, as the Divisional Court were "minded to hold" and as the respondents now concede, sufficient to constitute such notice). The legislation, however, requires notice of two separate matters and it cannot sensibly be construed as satisfied by a notice dealing only with one of them. Section 136(3) could equally well have been split into two parts, whether or not with different prescribed time limits, one dealing with notice of the presentation of the petition (and requiring service of a copy), the other dealing with security. The position cannot logically be different because Parliament has chosen to encompass both matters within a single subsection.

[28]I would therefore reject Mr Pleming's submission that "we are dealing here with a defective notice rather than a complete failure to give the notice within the prescribed time". The suggested distinction between service out of time and service of defective documents is in my judgment illusory in a case like this. There was here "a complete failure to give the notice within the prescribed time" since the notice served was simply not the notice required. I accept that it might be otherwise in other cases. Suppose, for example, the figure for security were mis-stated or certain particulars were omitted or a petition was served with only its alternate pages copied. The examples were multiplied in argument. I readily accept that not every typographical and other such error will necessarily constitute non-compliance with the legislative requirements. Precisely which errors are remediable and which fatal it is unnecessary to decide. It is sufficient for present purposes to hold that the document served must at least address each of the two specified requirements, the petition and the security, before there can properly be said to have been timeous compliance with this legislation.

[29]It follows from this that the appellants must make good their wider submission that, rule 19 notwithstanding, these provisions are to be regarded as directory only rather than mandatory so that non-compliance with them is not such as to nullify the proceedings. In using the words "directory" and "mandatory" (other judgments, as has been seen, speak of "permissive" as opposed to "peremptory" and of "conditions precedent") I do not overlook this court's judgment in R -v- Home Secretary ex parte Jeyeanthan

[2000] 1 WLR 354

where Lord Woolf MR suggested that resolving this dichotomy is "only at most a first step" and that further questions then arise to help the court decide whether in any given case non-compliance ought properly to be held fatal so as to oust the court's jurisdiction in the matter. Lord Woolf's judgment (see particularly the passage at p362) was cited and carefully considered by the court below and need not be cited again here. Rather, however, than spend time circling around the ultimate question, I propose to address it directly: does this legislation on its true construction give the court a discretion to waive these appellants' timeous non-compliance or must it be regarded as fatal to their proceedings? It may be noted that in Jeyeanthan itself the court accepted that there would be no power to extend the five-day time limits provided for asylum appeals by the Asylum Appeals (Procedure) Rules, albeit a deficiency in the prescribed form - there the Secretary of State's omission from the notice of a declaration of truth - was held merely to be an "irregularity" and so curable under Rule 38 of the Rules:

"38. Any irregularity resulting from failure to comply with these Rules shall not by itself render the proceedings void, but the appellate authority may take such steps as it thinks fit to cure the irregularity ."

Judge LJ said at p368:

"The ambit of rule 38 in relation to deficiencies in the prescribed forms was addressed briefly, but not conclusively, in [a Divisional Court case in 1990] when Lloyd LJ considered a hypothetical case where particulars required in a notice were incomplete: 'Would that be an irregularity which could be cured under paragraph 38? I suspect that it could . But I do not attempt to chalk the dividing line.' This observation is best treated as an illustration of the immediate impression of the width of the power created by rule 38, but no more. like Lloyd LJ, my immediate impression on reading rule 38 was that it would be surprising if an incomplete notice of an application for leave to appeal, or a notice which did not scrupulously comply with the prescribed form, was not an "irregularity" within rule 38. That, on the face of it, is what it is."

[31]As already indicated, whilst I too refrain from any "attempt to chalk the dividing line", I find it impossible to regard the non-compliance in the present cases as a curable irregularity, even assuming that some rule equivalent to rule 38 of the Asylum Appeals (Procedure) Rules (perhaps CPR 3.10) were available to the court to cure such irregularities in the present context. It strikes me rather as a fundamental failure to effect timeous service of a proper notice.

[32]Are the failures here, therefore, such as to require the striking out of these petitions, there being no discretion in the court to do otherwise? Despite Mr Pleming's and Mr Giffin's able submissions to the contrary, I am persuaded that they are. Timeous service is an imperative in these cases. Rule 19 is very strong. CPR 2.11, for example, ordinarily allows for parties to agree variations of specified time limits. Rule 19 disapplies it in rule 6 cases.

[33]In the course of the arguments, the legislative history of the present provisions was explored in great detail. Unsurprisingly perhaps, the legislation has altered in a number of ways down the years. These alterations include not least the inter-relationship between the statute and the election rules with regard to the specified time requirements. At one time it was the statute which specified the relevant five-day period (that, indeed, was the position in Williams -v- Mayor of Tenby ); at another, the statutory requirement was for service "within the prescribed time not exceeding five days"; later, under the Representation of the People Act 1949, five days was specified in local government cases, "the prescribed time not exceeding five days" for parliamentary elections; nowadays the Act specifies neither the period nor a maximum, merely service "within the prescribed time", rule 6 prescribing five days and rule 19 providing in addition that this five day period shall "shall not be enlarged" (although, probably through error, rule 19 did not apply to what is now rule 6 until the Rules were first amended in 1985). To my mind, however, the distribution of the time requirements as between the primary and the secondary legislation matters nothing given my conclusion as to the primacy of the Rules over the CPR. It seems to me similarly of no materiality that, for example, under the legislation in force when Williams -v- Mayor of Tenby was decided(a) the security was fixed by statute at £500 and the notice required was "of the presentation [of the petition] and the nature [and not, of course, the amount] of the proposed security"; and

(b) the petition was not "deemed to be at issue" until, at the earliest, the time for objecting to the nature of the security had expired, whereas under s137 of the 1983 Act (referred to in paragraphs 16 and 17 of the Divisional Court's judgment) the petition is at issue once the full amount of the security has been deposited.

[34]In short, I share the view expressed by the Divisional Court in Absalom -v- Gillett (see paragraph 17 above) that there is no material difference between the relevant statutory provisions in any of these cases.

[35]Let me, then, briefly return to the authorities. For my part I regard the Shrewsbury petition as having been wrongly decided. The failure to serve a respondent was not in my judgment properly to be characterised as merely a "formal objection" within rule 60 of the 1868 Rules. Those same Rules were of course in play in Williams -v- Mayor of Tenby and yet no one suggested there that the failure to serve the requisite notice fell within rule 60, even though there, as here, the full security had in fact been deposited. Williams -v- Mayor of Tenby , be it remembered, although of course not binding on us, was regarded by the Privy Council in Devan Nair as "plainly rightly decided". The present cases, indeed, might be regarded as a fortiori to Williams -v- Mayor of Tenby in that(a) there was no equivalent there to rule 19 which expressly forbids enlargement of the specified time for service - that, I may point out, is true too of Jeyeanthan where this court regarded any breach of the five-day rule as fatal despite there being nothing akin to rule 19 in the Asylum Appeal (Procedure) Rules - and

(b) there is no equivalent here of rule 60 of the 1868 Rules - although, as the appellants point out, the Explanatory Note to the Rules when first made in 1960 states that "some of the existing provisions have been omitted in reliance on the general practice and procedure of the High Court", which arguably suggests that the Supreme Court Rules, now the CPR, are intended to allow the court to waive at least merely formal errors.

[36]As for the decision in Devan Nair , that we should plainly regard as highly persuasive, not least given that it has now stood for over thirty years beyond the 90 years for which the Privy Council itself recorded Williams -v- Tenby Corporation as having stood. Again, moreover, there was no equivalent to rule 19 in play in Devan Nair , merely the omission of any "general power in the election judge to extend the time on the ground of irregularity" (the second point which weighed with the Board - see paragraph 16 above).

[37]Absalom -v- Gillett is, of course, indistinguishable from the present case. For the appellants to succeed on these appeals we should have to overrule it.

[38]Amongst a number of other submissions made by the appellants are just two more which I ought briefly to mention. First is their reliance on s136(8) of the 1983 Act; if, runs the argument, Parliament had intended the same consequence ("no further proceedings on the petition") to follow from a failure to comply with s136(3), Parliament would have said so. I reject this submission. In the first place it seems to me to prove too much; if correct it would preclude a strike-out, once security has been given, even if no s136(3) notice were ever served on the respondents. But that point aside, the fact is that the court will always know if there is a failure to provide the required security, a failure which brings subsection (8) into operation whereas any failure to comply with s136(3) will need to be brought to the court's attention.

[39]Secondly, Mr Pleming seeks to pray in aid the following passage from Lord Abinger CB's judgment in Coppock -v- Bower (1838) 4 M & W 361, 366:

"Here was a petition presented on a charge of bribery. Now this is a proceeding instituted not for the benefit of the individuals, but of the public - and the only interest in it which the law recognises, is that of the public."

[40]What Mr Pleming submits is that with this thought in mind the court should strain to find the appellants' failures here to be merely formal errors curable under CPR 3.10. This submission too I reject. What Lord Abinger said was in a very different context (the illegality of an agreement, for money, not to pursue a petition) and is in no way inconsistent with Parliament's insistence upon the strict compliance by both parties with the series of requirements imposed by s136 of the Act to ensure that any petition is made ready for listing and disposal as speedily as possible. Flexibility and discretion are all very well but there is merit too in certainty, not least in the field of electoral challenge. It is undesirable to have someone serving in a public office with doubts surrounding the legitimacy of his election.

[41]Before finally parting from these appeals let me add just three footnotes. First, I would echo the Divisional Court's encouragement to those responsible for the guide issued by the Election Petitions Office to re-draft their question and answer:

"How do I serve the election petition?": "

You must serve a notice of the issue of the petition together with a copy of the petition and of the recognisance of any surety on each of the respondents ". Plainly there should be reference there to informing the respondents also "of the nature and amount of the security" irrespective of whether any recognisances have been entered into.

[42]Secondly, I am conscious of having said nothing whatever about the allegations made by these petitioners against the various respondents. Given, however, my conclusion that these petitions will never now be heard, it has seemed to me that the least said about their contents the better.

[43]Thirdly, and finally, 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 ) can only be for Parliament. Petitioners and those advising them will henceforth know that under the existing law only strict compliance will do.

[44]In my judgment the Divisional Court came to the correct conclusion in respect of both these petitions. They were rightly struck out. I would dismiss the appeals.

Lord Justice May :

[45]I agree that this appeal should be dismissed for the reasons given by Simon Brown LJ.

Lord Justice Clarke :

[46]I also agree that this appeals should be dismissed. The reasons which have led me to that conclusion are I think the same as those expressed by Simon Brown LJ and may be summarised as set out below. I use the same expressions as he has done and do not quote again the relevant provisions of the 1983 Act, the Rules or the CPR.

[47]The combined effect of section 136(3) of the 1983 Act and of rule 6(1) of the Rules is that within five days after giving the security the petitioner must serve on the relevant persons, who include the respondents to these appeals, a notice of the presentation of the petition and of the amount and nature of the security.

[48]By the express terms of rule 19(1) of the Rules, any period of time prescribed by rule 6(1) "shall not be enlarged by order or otherwise". It follows that the court had no jurisdiction to enlarge the period of five days prescribed by rule 6(1); that is to say it has no power to extend the time.

[49]The only power which the court might otherwise have had to extend that period is contained in section 157(3), which provides that "subject to the provisions of the Act" the High Court has the same powers in these proceedings (which to my mind are "proceedings on the petition") as if the petition were an ordinary action within its jurisdiction. Those powers include the powers contained in the CPR, including of course rules 3.1(2)(a) and 3.10, which Simon Brown LJ has quoted. Rule 3.1.2(a) contains a power to extend the time.

[50]That power does not, however, apply here because, by section 157(3), the powers are expressed to be subject to the provisions of the Act, which must in my opinion include the Rules made pursuant to an express power in the Act. Such a rule is rule 19(1), which expresses the prescribed time for the purposes of section 136(3). It follows that the power in CPR 3.1(2)(a), assuming it otherwise to apply, has no application because it must yield to the express prohibition in rule 19(1) of the Rules that the five days provided by rule 6(1) of the Rules shall not be enlarged.

[51]On the facts, which have been fully set out by Simon Brown LJ, no document which either purports to be or can even arguably be said to be a notice of the nature and amount of the security was given by the appellants in either case. This is not therefore a case in which it can be said that a defective notice was given in time. It is a case in which no notice was given at all in either case.

[52]It follows that in order to be able to proceed each appellant needs an enlargement or extension of time to serve a notice. Since the court has no jurisdiction to grant such an enlargement or extension, it follows that these petitions cannot proceed and the appeals must be dismissed.

[53]As I indicated at the outset, it seems to me that this reasoning is consistent with the reasons which Simon Brown LJ has given for dismissing these appeals. However, it does appear to me to be important that we should not seek to decide questions which do not arise for decision on these facts. Such questions seem to me to be better left for decision when they are necessary for the resolution of the issues in a particular case, especially since the facts of cases vary and we should I think be careful not to prejudge future cases, especially when this court is the final court of appeal.

[54]In particular, all the cases to which Simon Brown LJ has referred, including the Shrewsbury case, are cases in which no notice was given within the prescribed period. None of them is a case in which a defective notice was given timeously. I would leave open for future decision whether the court has a discretion, through section 157(3) of the 1983 Act and CPR 3.10, to treat a defect in a timeous notice as a failure to comply with a relevant rule. Alternatively, a court might treat a notice which substantially complied with the provisions of section 136(3) as sufficient compliance with it. As Simon Brown LJ puts it, precisely which errors are remediable and which fatal it is unnecessary to decide.

[55]I would, however, add this. Although I would leave these questions for future consideration in the light of such rules as then apply, even if the court had a discretion in such a case, I would expect it to be exercised in a petitioner's favour only in a very rare case, because I can see no reason in principle why petitioners and their solicitors should not read the relevant provisions of the 1983 Act and the Rules, which are quite simple, and apply them in accordance with their terms.

[56]Finally, while I would accept Mr Millar's submission that there is a hierarchy of provisions, first Part III of the Act and the Rules, next the CPR and finally any residual practice, principle or rule of the House of Commons, that does not resolve the question whether the court has the powers given by the CPR in the absence of a provision of the Rules which is in less absolute terms than rule 19(1), which expressly forbids an enlargement of time. I would leave that further question open until it arises.

Cited in 13 later judgments

and 4 more of the most senior