Letchworth Garden Heritage Foundation, R (on the application of) v Returning Officer for the District of North Hertfordshire & Anor [2009] EWHC 841 (Admin)

Case No CO/3648/2008[2009] EWHC 841 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 6th March 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE IRWIN
Between
THE QUEEN ON THE APPLICATION OF LETCHWORTH GARDEN HERITAGE FOUNDATIONClaimantv
Between
THE RETURNING OFFICER FOR THE DISTRICT OF NORTH HERTFORDSHIREDefendantTHE CHAIRMAN OF THE PARISH MEETING OF LETCHWORTH GARDEN CITYDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Gerald Clarke (instructed by Messrs Trowers & Hamlins) appeared for ClaimantMr Timothy Straker QC and Mr Alex Goodman (instructed by North Hertfordshire District Council) appeared for 1st DefendantMr Jonathan Wragg (direct access) appeared for 2nd Defendant
J U D G M E N T
[1]MR JUSTICE IRWIN: The claimant, the Letchworth Garden Heritage Foundation, is the inheritor of the property and the overall functions of the estate set up under the leadership of Sir Ebenezer Howard, who was the leading light of the garden cities movement and the founder of the Garden Cities Association, which became the Town and Country Planning Association. The estate, which is comprised of all or almost all of the Letchworth Garden City, is owned now by the Foundation. Between 1903 and 1962 the estate was owned by First Garden City Ltd, a private company. There arose a threat to the ownership of that company, and to the underlying purposes of the Foundation, from developers and so, in order to meet that threat, Parliament passed the Letchworth Garden City Corporation Act of 1962, which created a statutory corporation inheriting the estate. In 1995, the Letchworth Garden City Heritage Foundation Act dissolved that corporation and transferred the estate and its undertakings to the Foundation.[2]The Foundation is governed by the Independent and Provident Societies Act 1965 and by internal rules. The preamble to the Act, which creates the Foundation, indicates, so say the claimants, that it is not a public body. That text does not appear in the body of the Act and is, as I say, confined to the pre-amble. The rules provide inter alia for charitable objects and specifically for "the preservation of the buildings and other features of beauty or historic interest within Letchworth Garden City".[3]The provisions for governance of the Foundation include that each of the relevant larger local authorities in the shape of North Hertfordshire District Council and Hertfordshire County Council are themselves to be governors. There are 28 more: eight nominated by local clubs and societies, six elected by the registered electors of Letchworth and 14 appointed for their skills and abilities. There is also a provision, which I need not set out, which means that in the event that a large number of local residents and/or freeholders initiate appropriate court action, the High Court can change the governance of the Foundation.[4]Letchworth Garden City has three layers of local government: the County Council, North Herts District Council and Letchworth Garden City Council, which, despite its name, is legally a parish council administering a town. The returning officer of the District Council is the first defendant to these proceedings and the chairman of the parish council is the second. In recent times there has been tension between some in the community who regard the Foundation as effective and the parish council as redundant and others, including, it is to be presumed, the second defendant, who would rather see the Foundation replaced by a directly elected body. In February 2008, notice was given of a parish meeting within the parish and on 12th March such a meeting took place. Part of the discussion of the meeting there was the issue as to whether the governance of the Foundation, the claimant, should be changed. On the day following the meeting, 13th March 2008, the clerk to the parish meeting wrote to the District Council with a request for a poll of the electors within the parish on the issue, and that poll was held on 21st April 2008. There were two questions put to the electorate, one concerning a proposed change of governance to the Foundation and another concerning the abolition of the parish council itself. The outcome of that poll is not relevant to the legal questions under consideration, but it is of interest that a significant number of those responding indicated views in favour of changing the governance of the Foundation.[5]Judicial review proceedings were begun by the Foundation before the poll took place. The proceedings have had a tortuous procedural history, which I do not pretend to begin to outline, but in the end permission for these judicial review proceedings was given in an oral hearing heard ex parte before Plender J on 23rd May 2008.[6]The heart of the application on behalf of the claimant is that the poll, and by extension the meeting or the discussion at the meeting of the governance of the Foundation, was beyond the power of the second defendant or ultra vires, if I am still permitted the phrase, because the governance of the Foundation is not a "parish affair" within the meaning of the Local Government Act 1972. After preliminary discussion with counsel, it was agreed we would address this question first, since all other questions flow from the answer to this problem. This judgment is concerned only with that particular question.[7]Parish meetings go back to the point in history where law and history can be blurred together. Originally, and for many years into modern times, parish meetings took place in the vestry of the parish church and acquired from that history the term "vestry meetings". For our purposes, it is sufficient to begin with the Parish Councils Bill of 1893. In a document helpfully obtained by counsel for the second defendant, we find that a Mr J Theodore Dodd published a critique of the 1893 Bill, suggesting changes. The Bill was intended to set up a system of parish councils across England. The initial draft of the Bill abolished parish meetings. Dodd called for their preservation and, by section 7 and Schedule 1 of the resulting Act, he was successful. The legislation as passed preserved the parish meeting and gave it statutory life.[8]Section 7 simply provides for the holding of parish meetings and sets out some of the specific affairs over which the parish meeting had influence, lighting and washing baths and washhouses, burial, public improvements and public libraries. However, by the first schedule to that Act, Parliament made it clear that parish meetings and discussions in parish meetings were not confined to the specific responsibilities touched on in section 7. By section 2(4) of Part 1 to that first schedule, Parliament stipulated that:
"A parish meeting may discuss parish affairs and pass resolutions thereon."
Other illustrations of suitable topics were given within the schedule but the proposition set out by Parliament was a general one.[9]The parish meeting was preserved by the Local Government Act 1933, by section 77 and part 6 of the Act. By schedule 3, paragraph 4, the wording of the 1894 Act was preserved and the power of the parish meeting was set out in paragraph 4(1) in exactly similar terms:
"A parish meeting may discuss parish affairs and pass resolutions thereon."
[10]The 1933 Act was superseded by the 1972 Local Government Act. Section 13 of that Act, which is still current, provided for the constitution of a parish meeting and set out various stipulated qualities and procedures and, in schedule 12 part 3, various provisions were set out as to what could be dealt with by way of a parish meeting. There was nothing which changed the sense of the preceding legislation, or in any way defined what was a parish affair, or confined what might be discussed in any special way.[11]Mr Clarke, who appears for the Foundation and who has argued clearly and with energy on their behalf, suggests there are three possible meanings to the phrase "parish affairs": firstly, that it is confined to matters arising from the specific powers of a parish council; secondly, that it is affairs concerning the parish but confined in a way analysed in a textbook, that is to say, Arnold Baker: Local Council Administration, 7th edition; thirdly, that it means anything which is of interest to those in the parish. In his helpful skeleton argument, Mr Clarke has quoted from Arnold Baker as follows:
"The right of Parish meetings to discuss parish affairs extends to any public matter of a public nature and is not confined to the statutory functions of the Parish Council. The parish meeting may accordingly pass any resolutions on the public activities or policies in the parish [and then emphasis is added to the following words] of any other local authority, public body, government department or public service, provided that they affect the parish especially and are not such as are calculated to affect the whole country or all parishes equally."
[12]Mr Clarke is frank that there is no specific authority on the meaning of the term "parish affairs" and, in reliance on the Arnold Baker quote, he of course acknowledges that that is a textbook and, however learned it may be, it is not binding on the court.[13]It is conceded by Mr Clarke, as I understand it, that the first meaning is too narrow. He says that the second possible meaning is correct and the third is too broad, since it would involve the parish meeting in being empowered to discuss absolutely anything which was of interest to those living in the parish. Mr Clarke also concedes that the activities of the claimant foundation are clearly a parish affair since they touch so nearly on how life is lived in Letchworth Garden City. He says the governance of the claimant is not.[14]I find this a strange as a general proposition for no other reason than that some of the governors have to be appointed or elected from within the parish, and thus it is directly the case that the parish has a straightforward and obvious role to play in the governance of the claimant Foundation. Governance in that sense must therefore definitely be a parish affair and a change in those nominated from within the parish to serve as governors of the claimant Foundation could not conceivably happen without consultation and/or election from within the parish and must by definition be the subject of a proper discussion within the term "parish affairs".[15]Mr Clarke seeks to liken the claimant to a private corporation, perhaps at my instigation, using the illustration of a great ducal estate with wide land holdings, but that is far removed from the situation of the claimant Foundation. This claimant has in its previous incarnation been a public body and at least in theory could be made to be so again, by means of a private Bill in Parliament repealing the legislation under which the foundation exists and replacing it with another organisation. That would be bound to involve consultation, and indeed intensive consultations, and discussion, within the parish of Letchworth Garden City. This parish is the focus of the claimant's activities. It is extremely important in the parish and it is not important, or at least not nearly so important for any other parish in England, since the boundaries of the Foundation's estate and the boundaries of the parish itself are, if not coterminous, very closely aligned.[16]Let us test the proposition that this is not a parish affair by this question: if some outside individual or body, having no connection with Letchworth Garden City, were to propose the changing of the governance of the claimant Foundation; then in the situation where those who were serving as governors of the Foundation and those who ran the parish council were happy with the status quo, and happy with each other, could it possibly be said by those outsiders seeking to alter the way the Foundation was run that the parish meeting could not discuss the proposition? I find that inconceivable.[17]In short, it seems to me, in the absence of any special meaning necessarily to be imported, no such meaning is to be discerned from the legislation. This topic was obviously within the definition of a parish affair, was properly the subject of discussion in the meeting and since, as I understand it, Mr Clarke does not argue for a distinction in the meaning of parish affairs for the purpose of the meeting and for the purpose of a poll, it was properly the subject of the poll.[18]Well, gentleman, that is all I need to say on that issue. I think the question is where do you go from there.[19]MR CLARKE: Yes. Well, my Lord, of course, given my Lord's ruling on that point, the case cannot succeed whatever the answer might be on the other points. The problem about the other points, my Lord, is that they bear quite heavily on costs because we would say that particularly Mr Straker's other points, we say, are bad points and -- but it is difficult for my Lord to take a view on that without hearing argument on them. It bears, as I say, on the question of what costs should be borne by the claimant, because plainly in principle the defendants are going to be entitled so some of their costs. The question is how does one proportion the costs, where a substantial percentage of the costs, certainly from Mr Straker's side and less so Mr Wragg's side, have been devoted to pursuing other lines of argument which do not now need to be determined but, had they come for determination, we would say would have been determined in the Foundation's favour.[20]Can I -- I mean, I am particularly thinking about my learned friend's -- well, his Representation of the People Act points, there were no less than three sets of written submissions from Mr Straker in which he took points which he then dropped. Well, my learned friend disputes that, but I say it is plainly so if you look at the documents -- and I am trying to keep the temperature cool, because I know my learned friend gets very cross about this, or he seems very cross in his written submissions, but there is no need to be cross, in my submission. There was simply a misapplication of the Act or a misstatement of its effects, my Lord, in three sets of written submissions which were then no longer advanced and what instead was advanced, what was advanced for the first time in the skeleton argument, is a new point based on section 48 of the Act, which had not been advanced in the pre-action correspondence and was not advanced at any stage prior to permission. Section 48 is now the point that he takes a stand upon and, my Lord, we would have submissions on that and my submission, very briefly, without going into it, would mean that when you actually analyse the wording, and you can do this by tracking through the legislation, very simply, section 48 simply does not apply to this type of poll and it certainly does not operate in the way my learned friend suggests. He suggests effectively an ouster of this court's jurisdiction, or very nearly so, and we say that is simply a bad point. So his original point was this should have been a challenge by way of an election petition. He then accepts -- and I can show my Lord the documents, that is what he said, he said it is an election -- he said there was a remedy available to the Foundation under the Act. He then accepted that there is no remedy available to the Foundation under the Act but says that section 48 is preclusive because of its terms and we say on analysis that is a bad point. So those are my learned friend's principal points and he also has his point about how we should have challenged the meeting rather than the poll, but I do not want to take very much of my Lord's time.[21]Mr Wragg, what he has done in his written acknowledgement of service and his grounds of opposition, he spent quite a lot of time on what would have been issue five, my Lord, which was this whole question about whether or not there was an alternative remedy by way of monitoring officers, finance officers and so forth, or the Audit Commission, a point which he has not pursued today, so that is also something which we say falls to be reckoned with when it comes to costs.[22]Now, one way of dealing with it is to say, well, we will have a detailed assessment, but that is not terribly desirable because, of course, that leads itself to further costly proceedings. It may be that one way of dealing with the -- cutting through this particular gordian knot, particularly with effect of Mr Straker's subsidiary arguments, is to say, well, given that Mr Straker advanced the primary case on the basis that it was very forward to attach that meaning, and given that his submissions have prevailed with my Lord on that and you have found it a straight forward point, all of the other points were needless and irrelevant points and therefore the costs of those should not be allowed. That is one way of, as I say, cutting the gordian knot. The only other way is for my Lord to take a view on the merits of those points, which is difficult, because to do justice to both parties --[23]MR JUSTICE IRWIN: It is quite surprising, Mr Clarke, thinking -- judicial life can be hard enough without cutting through the case, arguing the essence of the case and then finding you have to have all the rest of it.[24]MR CLARKE: Well, indeed, and, my Lord, I am not suggesting that one should, because my Lord has sensibly focused on -- we entirely agree with my Lord's approach. We would suggest that all these other points were no good anyway but in any event this case was always about what is a parish affair and it was really only about that and my learned friend is entitled to his costs, both of my learned friends are entitled to their costs, subject to any points of detail about the costs, in arguing those matters. All of the other matters, I would say they should not have their costs of.[25]MR JUSTICE IRWIN: Well, the fact that you have lost on one does not mean that he did not have to prepare the position that you might win on it.[26]MR CLARKE: Yes, that is true.

MR JUSTICE IRWIN: That, I think, will be his answer to that.

[28]MR CLARKE: Well, I can understand that is a perfectly sensible thing to say, my Lord, but the problem then is what does one do when one does not know what the answer would have been. It is all very well for me to say that --[29]MR JUSTICE IRWIN: May I make a suggestion? I would like to hear Mr Straker firstly on what the other points, how they should sound in costs at all, shortly. Secondly, I would like to hear on how it could be said that the jurisdiction of the court was ousted as to this primary question. What I would suggest we might do then is, if it suits everyone, any further submissions on costs could be made in writing and I can deal with them and make a decision on costs in writing, rather than keep everyone here for two more hours while we go through every corner of the rest of the agenda. I am not going to railroad anyone but that would seem to me to be --[30]MR CLARKE: Yes. My Lord, I entirely agree and I was not suggesting for one moment that one should argue the rest of the case, in the sense that I think would be a wholly silly thing to do, but it is just there is this problem of how we deal with those other costs.

MR JUSTICE IRWIN: Yes.

[32]MR STRAKER: Can I deal with that, my Lord, in this way? First, your Lordship is plainly correct, if I may respectfully say so, namely that these other matters had to be prepared in any event and how in ordinary circumstances the fact that one has succeeded on one point, if other points have not been argued or other points have not been canvassed, one succeeds full stop. Your Lordship asks me to indicate how those matters would proceed and how they could be expressed. Can I do this most simply by indicating to your Lordship what the position is, and what the true position is, as far as these matters are concerned by telling your Lordship the two propositions that I would have advanced had I needed to do so, because for each matter I had written down the proposition?[33]The procedure in question is as a matter of law a local government election and is protected from challenge by the Representation of the People Act. Just pausing there, if I may, my learned friend incorrectly says that this was not a local government election and it plainly was and I can show your Lordship the extended definition of that. He says it is not protected from challenge but it plainly is and I can show your Lordship that provision.[34]The other proposition which I would have advanced is this: there is a clear and immutable timetable which depends on steps taken prior to the notice of poll which are identified legal steps known to and unchallenged by the claimant. Now, my Lord, can I just, so your Lordship has the framework for this, without necessarily getting into chapter and verse -- first, if I may, the point upon which my learned friend appears to think that I am sensitive: what happened was that it is absolutely right to say that three notes were sent down to the court. Note number 1, the original note, indicated that a raft of provisions applied from the Representation of the People Act, which is and has always remained to be the case, as well as indicating a raft of reasons which were applicable. That was then pursued in the further note, because my learned friend indicated that he was going to renew his application and so there was a further note. It then so happened that on a review of that note, which was prompted by a discussion that I had with my learned friend on my right, that I noticed that the position as far as petition was concerned, and only as far as petition was concerned, could have led to the view being taken that a petition might have been available in the circumstances and so a corrective note was sent down voluntarily, the point not having been noticed by my learned friend so as to correct the matter.[35]MR CLARKE: Well, just so -- we had --

MR JUSTICE IRWIN: No, I really --

[37]MR STRAKER: No, it had not been noted, my Lord, and I can give your Lordship chapter and verse on that.[38]MR JUSTICE IRWIN: Well, can I just stop you, Mr Straker. It seems to me that, if we are dealing with the necessity for a second or a third note, that really has to the subject of assessment. That is not a question of who was right about the law. So I hear what you say, but I really do not want to get into a historical exegesis of who corrected who or what came when.[39]MR STRAKER: Well, my Lord, your Lordship will have seen from my skeleton how I shoved this matter off to the schedule.

MR JUSTICE IRWIN: Yes, that is right.

[41]MR STRAKER: But, my Lord, can I just then go back to what would be the principal point as to how it comes to pass that the jurisdiction of this court is affected by the Representation of the People Act and previous authorities of this court and of the Court of Appeal. It comes to pass in this way: that this being a local government election is subject to provisions of the Representation of the People Act which brings in its wake a supervisory role to include the possibility of criminal proceedings. It also brings in its wake a very precise timetable, which timetable is driven by the terms of the rules, by the terms of the rules, which provide for no discretion on the part of the returning officer and what the courts hitherto have said is that the timetable by which elections are driven -- and this is an election, as I have indicated -- by which elections are driven, is to be regarded in effect as immutable and, if your Lordship looks at the rules, your Lordship will see the only circumstance in which it can be interfered with is in the event of open riot and the courts have also said in connection with elections that the position is one whereby the jurisdiction of the court should prior to an election be hardly ever exercised.[42]Now, my Lord, it is the position of the returning officer that the circumstances which would have confronted your Lordship in deciding this particular matter would have been to decide between a circumstance of holding that in actual fact the position was one of jurisdiction being ousted by virtue of section 48(2). Alternatively, that it was a circumstance of it being hardly ever to be exercised and the reason why I draw that distinction, my Lord, is this: your Lordship may be aware of a case involving Cornwall County Council decided 15 or so years ago, Cornwall County Council v Devon County Council, ex parte Isaac, which was to this effect: that preclusive terms in legislation which serves to exclude the jurisdiction of the court are to be given their full effect in circumstances when there is a supervisory regime which has been established concurrently by Parliament -- so, typically in the planning circumstance, you have six week ability to challenge otherwise you are out -- and the circumstances here which would have confronted the court would have been either the provisions say thou shalt not come to court because the Representation of the People Act is bolted on to this and provides for a regime; alternatively, because of the cases which I have just mentioned, the position would be one whereby the circumstance is that this is a hardly ever position. Now, my Lord, just to indicate how that goes, if I may --

MR JUSTICE IRWIN: Could we begin with why it is an election?

[44]MR STRAKER: Yes, my Lord. Can I ask your Lordship in that event to go to section 203 of the Representation of the People Act and also to have open at the same time also the rules, of which I think a full copy had been passed into your Lordship, the Parish and Community Meetings (Polls) Rules 1987.

MR JUSTICE IRWIN: Well, is that loose, or is that --

[46]MR STRAKER: It is loose, because the one in the bundle was thin, and we can pass up another one.

MR JUSTICE IRWIN: I have Parish and Community Meetings (Polls) Rules, yes.

[48]MR STRAKER: If you could have that to hand but if you could also turn up, my Lord, section 203 of the Representation of the People Act, which your Lordship will find behind flag 5 and there is a caveat to make about this, because your Lordship will appreciate that the Representation of the People legislation is something which cuts across both England, Wales, Scotland and Northern Ireland and there has been an alteration to this legislation as far as Scotland is concerned which does not affect England.[49]Now, my Lord, if your Lordship would look at section 203, your Lordship will see -- it is page 11, and your Lordship will see in 2003 that local government election is given meaning, as the election of councillors for any electoral area or any authority election. If your Lordship, with that in mind --[50]MR JUSTICE IRWIN: Do not rush. I have 203 and I have 1. Where is that?[51]MR STRAKER: Well, my Lord, I had better turn up -- because I am taking it up from Halsbury, so I had better turn up the volume that your Lordship has.[52]MR JUSTICE IRWIN: No, I have it. Local government election means (a) the election of councillors for any electoral seat or any authority election.[53]MR STRAKER: That is it and so that is what the definition of local government election is. If your Lordship then goes back to section 187.

MR JUSTICE IRWIN: But they were not elected council.

[55]MR STRAKER: Exactly so, my Lord, exactly so. So we then have to see whether or not there is an extended definition of local government election. So if you look at section 187, which is page 9, your Lordship will see section 187(2), sections 48(1) and (2) and 63 have effect as if any reference in them to a local government election included a reference to any other election under the Local Government Act.

MR JUSTICE IRWIN: Yes.

[57]MR STRAKER: And that therefore embraces us and, if you, my Lord, look at the Parish and Community Meetings (Polls) Rules, Article 6, references to an election, (6)(g) shall be deemed to include a reference to a poll consequent on a parish meeting. So consequently, what one has --

MR JUSTICE IRWIN: Even when it is not an election.

[59]MR STRAKER: Even when it is not an election of an officer, yes, but references to an election shall be deemed to include a reference to a poll, and this is undoubtedly a poll, consequent on a parish meeting and it makes perfectly good sense to do this, my Lord, because, as your Lordship will see in a moment, the regime which is followed is exactly the same for the election of a parish councillor as it is for the poll consequent upon a parish meeting. So what has happened is 203 has told us what a local government election is and then 187 has told us that in section 87, that in sections 48(1) and (2) and 63, it is going to include any other section under the Local Government Act and the polls rules have told us that a poll consequent on a parish meeting is such an election. So there is no doubt but that this, for the purposes of section 48(1),(2) and 63, includes this poll and your Lordship, if your Lordship has come across the rules in the Representation of the People legislation before, will have noticed in fact that elections throughout are referred to as polls.[60]MR JUSTICE IRWIN: Yes. It does not mean polls are elections. They are not, in common sense, because you are not choosing any county.[61]MR STRAKER: No, you are not choosing that, you are not electing between people, you are having a poll about a question, but nonetheless they are treated as local government elections. One cannot get out of that particular wording.[62]MR JUSTICE IRWIN: Could I just ask you to stop for a moment and ask if Mr Clarke disagrees with anything that has been said so far.[63]MR CLARKE: My Lord, I do disagree. Do you want to know why now?[64]MR JUSTICE IRWIN: Well, it will be helpful to me, because I quite see how, once you get within the electoral regime, the logic of the rest follows. So it is the definition.[65]MR CLARKE: Perhaps I can try and explain, my Lord, briefly, why we say Mr Straker is, with respect to him, wrong.[66]Can you stay for the moment with section 187? My Lord will notice that section 187 falls into two parts and section 187(1) provides for certain provisions of the Act which includes some of the provisions whereby elections properly so called can be challenged to apply, subject to such adaptations, modifications et cetera as may be made by rules under section 36 above, my Lord. Now, bear that in mind because, when one looks at the rules, if one just keeps a finger there and just looks at rule 6, which is behind tab 6, you will see there is a rule of the kind contemplated by section 187(1), in the application of those provisions the Representation of the People Act referred to section 187(1) et cetera et cetera. Fine. All fine. So far so good. Go back to the Act, section 187(2). My learned friend is not relying upon rules which are given force by section 187(1). He is relying upon section 187(2) and what that says is that sections 48(1) and (2) have affect, as in reference in them to a local government election, including a reference to any other election under the Local Government Act.[67]Now, two points about that, my Lord. One is by reference to subsection (1) and one is by reference to the definition. When it says any other election, that plainly as a matter of language must mean election other than election of parish and community councillors or chairman of parish or community council. I say that as a matter of language must follow: the word "other" election must mean election other than the one suggested in (1). Whether or not that is right -- I would say it plainly is right -- whether or not it is right, the answer is made absolutely plain when one looks at the definition sections. My learned friend has already shown to you section 203, my Lord, where we say what a local government election was --[68]MR JUSTICE IRWIN: You told me the page. Can you --[69]MR CLARKE: It is page, I think, 90 --

MR JUSTICE IRWIN: The trouble with these extracts is you cannot rely on the section --

[71]MR CLARKE: That was page -- yes, it is on page 12, my Lord. You will see what local government election means, page 12 of 91 in tab 5.

MR JUSTICE IRWIN: Yes.

[73]MR CLARKE: So the words that were important are other election, election under the local government act. So it has been election of the Local Government Act. Well, the Act tells us that the local government election means the election of councillors for electoral area or any authority. That plainly does not apply here. We can also look at section 202, my Lord. I think that might be missing from the actual -- so again you might have that loose. Do you have section 202 --

MR JUSTICE IRWIN: Yes.

[75]MR CLARKE: -- of the Representation of the People Act, because that tells you that election means a parliamentary election or an election under the Local Government Act. So election means election, an election under the Local Government Act, we have seen what that means.[76]MR JUSTICE IRWIN: Yes. Right. Thank you.[77]MR CLARKE: Now, the only reason that any of this matters, my Lord, of course is because of section 48, which you have not looked at yet. Can you go to the beginning of tab 5 and look at section 48. My learned friend is relying on both subsections of -- he says that both 48(1) and 48(2) apply and you will see that 48(1) says that no local government elections will be declared invalid and then sets out the various other provisions about that and then, importantly, he relies on 2: a local government election, unless questioned by an election petition, within the period fixed by law for those proceedings, shall be deemed to have been to all intents a good and valid election. My learned friend concludes from that that either the court has no jurisdiction in this case or it is a jurisdiction which would be exercised sparingly, almost never.[78]Now, were we talking about elections, my Lord, I would have no problem at all with what my learned friend says. I would say that in fact it is plainly right on the authority. In the authorities, in a number of which my learned friend appears, it does not seem to have been argued that the court does not have jurisdiction, but the point that is arrived at is the jurisdiction, to the extent that it exists, should be exercised very sparingly, but that of course is in the context of elections and in the context of election petitions. My Lord, there could not be -- and I think this is now common ground, it was not always common ground, but I think it now is -- there could not be an election petition in this case and, even if, as a matter of theory, there could be, my client could never bring one because election petitions may only be brought by candidates and electors.[79]But what we say, my Lord, is that my learned friend's argument does not get off the starting blocks because the sections he is relying upon do not apply to a poll under the relevant -- under schedule 12 of the Local Government Act. They apply to elections and a poll is not an election.[80]MR JUSTICE IRWIN: Well, the simplest way of putting your argument is that under subsection (2) of 187 it is only any other elections where sections 48(1), (2) and (3) apply and, since we have already recited that if that means other than what appears in 187 in (1)(c), then a parish meeting and any poll arising from it is not another election.[81]MR CLARKE: Absolutely and, my Lord, so that we say is the simple answer, as a matter of statutory construction. Before, as a back up answer, if you need it, which is to say that, accepting the force of what my learned friend says about the Cornwall case, a preclusive provision must be given full effect, well imply -- of course, the corollary to that is that the court is very jealous about the exclusion of its jurisdiction and scrutinises hard a submission that jurisdiction has been ousted, that judicial review has been ousted and you will need to see plain words, in my submission, for that conclusion to be arrived at and where we have section 4 -- and, of course, the section that is ultimately said to do the damage to me is section 48 and section 48(2) particular, and all that that says, we say, if you look at it, what it is saying is where a challenge could be made by an election petition, it has to be made by an election petition, ie, if it is matter which is challengeable under the 1983 Act it must be challenged under the 1983 Act and not otherwise. But it is now, I believe, and I will be corrected if I am wrong, common ground that this poll was not challengeable under the 1983 Act. My Lord, that is the point.[82]MR JUSTICE IRWIN: Thank you. Is that common ground?[83]MR STRAKER: My Lord, this poll was regulated by the 1983 Act. It could not have been the subject matter of a petition under the 1983 Act.[84]MR JUSTICE IRWIN: Well, then if it could be challenged by an election petition and -- how could it possibly be right that it was totally unchallengeable by law because the jurisdiction of the Divisional Court is ousted.[85]MR STRAKER: Well, my Lord, then we get to the question as to what does section 48(2) actually mean, but, my Lord, what my learned friend does not answer in what he has just said is that section 187(2) plainly extends the meaning of local government election as given by section 203. The only candidates, or the only candidate, for extension is to a poll under these provisions, which is deemed, of course, to be included as an election under the Local Government Act. But, my Lord, can I take your Lordship's point on section 48(2) because section 48(2), a local government election there, we know, carries a wider definition than given by section 203 and what section 48(2) says, if your Lordship has that open, is that a local government election, unless questioned by an election period, within the period -- an election period within the period fixed by law for these proceedings, those proceedings, shall be deemed to have been for all intents a good and valid election and if one pauses there, my Lord, the words which protect the local government election as extended are "a local government election shall be deemed to have been to all intents a good and valid election" and what happens here, my Lord, if your Lordship goes back to the rules, if your Lordship looks at regulation 6 --

MR JUSTICE IRWIN: This the Parish and Community --

[87]MR STRAKER: Parish and Community Meeting (Polls) Rules, because what happens, if I can just take it in stages, is, if your Lordship looks first at 4, "if a poll consequent on a parish or community meeting is required to be taken, the chairman of the meeting shall notify", so he is obliged to notify the district council, and the district council is obliged, "shall appoint an officer of the Council to be a returning officer", and then if your Lordship looks on your Lordship will see the poll rules are set out and they are called, without differentiation, poll rules whether one is choosing a candidate or answering a question and the first thing that one sees is the timetable and that is -- the first thing that one sees in the rules scheduled to the Representation of the People Act and the rules which are made for principal areas, where one is electing for district councils and county councils, is always in these rules concerning the Representation of the People Act a timetable.

MR JUSTICE IRWIN: Yes.

[89]MR STRAKER: If one then goes back to 6, your Lordship will see that in the application of those provisions of the Representation of the People Act referred to in section 187(1) referred to the election of a chairman of the parish meeting or to a poll consequent on a parish meeting, the following adaptations, alterations and exceptions shall have effect. Where the poll is to be taken on any question other than that of the election of a chairman of a parish meeting or an appointment to any other office, the only provisions of these referred to in section 187(1) which are to apply are, and then certain sections are recorded.

MR JUSTICE IRWIN: But not section 48.

[91]MR STRAKER: No, but section 48 does not need to be because by section 187(2), which is not referred to in the opening words of 6, by that subsection section 48(1) is to have effect with an extended definition of local government election. Well, my Lord, one just simply has to chase it through.

MR JUSTICE IRWIN: We are ending up arguing the whole of the argument.

[93]MR STRAKER: Well, my Lord, the fact of the matter is, if I may respectfully say so, that -- if one pauses at this stage, I know that I do not want to talk about, and your Lordship does not much want to hear about, the material that was sent down to Owen J. What was sent down to Owen J was this set of proceedings is a nonsense because this must be a parish affair and in any event this is something which is regulated by the provisions which bear upon the Representation of the People Act and in mentioning that it so happened that a side reference was made to petition, that is all, and so that subsequently came to be corrected. But subsequent to all of that, and when after my learned friend got his leave, and your Lordship will have seen that we complain about that vigorously -- I am not going to enter into that -- we then wrote to the claimant again and said "please withdraw your case, it is a hopeless case", and they persisted in their case. So, my Lord, we have the circumstance where we now get to this position, which is not being accepted because a seeming view is taken about the extended definition of local government election. But, my Lord, quite apart from that, if I can just literally in two moments show your Lordship -- can I give your Lordship two authorities which were sent down to Owen J, I think, or might have been mentioned to him. (handed)[94]Now, my Lord, the first of this pair of cases was decided by Scott Baker J, as he then was, and this was a circumstance where this preceded an election to the London Borough of Harrow and your Lordship will see, just by glancing at it, that it arose because of what was being stated on the nomination papers and whether there was correspondence with a certificate that was required and your Lordship will see that Scott Baker J records, paragraph 2, that it was of extreme urgency, the returning officer had been prohibited from doing so, that is to say publishing the list of nominations. Then, if your Lordship looks on, your Lordship will see that at paragraph 28, Scott Baker J says it is in his judgment important to keep in mind the role of the returning officer in the election process:
"He is in a sense the referee. He is there to see fair play and to ensure that the rules are complied with. As a matter of policy, it seems to me, the fewer occasions on which he is called upon to exercise questions of judgment and thereby lay himself open to criticism by one or more of the candidates the better. This is particularly pertinent if the exercise of judgement were to go outside issues that can readily be resolved by looking at a document..."
Then there is reference to a case called the Literal Democrat case, where someone stood as a Literal Democrat and got thousands of votes, and then, if your Lordship looks on, quoting from that, he says, paragraph 32, quoting from the judgment given by Dyson J, who was sitting with Forbes J, that there was no entitlement to investigate facts on the part of the returning officer:
"That, in my judgment [paragraph 33], is a passage of extreme importance. It illustrates the approach that is ordinarily to be taken by returning officers." and then, if one looks on, paragraph 37: "
It has not been argued before me that the court cannot interfere by way of judicial review, although it is fair to say that neither party was aware of any case where there has been a successful application for judicial review against a returning officer. In my judgment, although judicial review does lie, this is an area in which the courts should be extremely slow to interfere with the decision of a returning officer. No doubt where a returning officer has plainly acted unlawfully relief will lie. But ordinarily returning officers should be left to conduct the election process as provided by Parliament. In his evidence the defendant has set out the timetable for the election process in the forthcoming local election. It is of some importance. I shall recite it..." and then he does and, my Lord, there, of course there is the correspondence between that, the timetable in the principal area election rules and there is a timetable here, of course, and paragraph 40:
"The elections are conducted pursuant to a timetable provided by the Local Election (Principal Areas) Rules 1986. There is similar legislation covering Parliamentary elections. The first date in the timetable has in effect been put back by order of the court pending the outcome of the present application. The point has not been argued and it is no longer necessary to decide it, and indeed I can see why Gibbs J granted an interlocutory injunction in the terms that he did. However, I am not, without argument, convinced that the court has power to vary a timetable prescribed by legislation."
[95]Now, if one just pauses here, my Lord, the timetable here required that this poll be held by no later than the Monday on which it in fact was held. That was for the requirement of the timetable. The application for permission was made at about 5 o'clock on the Thursday for consideration on the Friday before the Monday that followed.[96]MR JUSTICE IRWIN: It may be that you are right in saying that the court should not have intervened with that timetable if it had been asked to. Right.[97]MR STRAKER: My Lord, yes, it was being asked to intervene.

MR JUSTICE IRWIN: Well, and it did not.

[99]MR STRAKER: Yes.[100]MR JUSTICE IRWIN: Right. So that is a question of -- we are concerned with costs. If you resisted an application to intervene as time went on, before the poll took place, then you are entitled to prima facie your costs of that, whether or not you are right on the analysis that this is excluded from the jurisdiction of the court.[101]MR STRAKER: My Lord, precisely so. Precisely so. For my purposes it matters not and this is why one does not trouble to put it as high as necessary that the jurisdiction of this court is precluded, because all that is necessary for my purpose is to be able to say, if this jurisdiction is one capable of being exercised, it is the hardly ever categorisation, without the ability to interfere, as Scott Baker J says, in the statutory timetable.[102]MR JUSTICE IRWIN: That deals with the interlocutory position before the poll took place. Without more, that deals with it. So the argument about whether there is or is not an exclusion of the jurisdiction of the court can be set aside for the purposes of that. What about costs that postdate the ruling of Owen J where you seek to maintain a point, an argument, which must have some costs attached, that the court has no jurisdiction?[103]MR STRAKER: Well, my Lords, the argument which I put forward, have always put forward, has been on the basis of the hardly ever position and if your Lordship tracks through the various documents that is what will be seen and the position is one whereby it is -- as I say, that is the only one which is necessary for my purposes, but, my Lord, in my respectful submission it would have been entirely wrong of the running officer in this case to have failed to draw the attention of the court to the fact this here was a particular legislative regime leading to pronouncements by Scott Baker J in that case in the Court of Appeal, as I will show your Lordship, that this was a jurisdiction where one hardly ever intervened, because, when one tracks back to what do they actually want, they want it to be said that what was done was erroneously done and done illegitimately and that, if one cannot interfere with the timetable, it means what ought to have been complained about are the earlier steps, in other words the publication in February, which was known about and I showed your Lordship the newspaper cutting this morning, when the gentleman from the Letchworth Foundation said this is all a waste of time and so forth. They should have said, which they did not, do not speak about this at the parish meeting and they should have said do not take those steps. They did not seek to do that and the consequence is, because one has for election processes of this rigid timetable, where you go step, step, step, that once you have gone past a step you cannot rewind to the earlier step without trespassing into the very sort of things which the courts have said thou shalt not do and the rationale behind all that is a protective position both for the court and for the returning officer because cases without number have argued that the returning officer should not have any particular discretion, so that when someone comes alone --[104]MR JUSTICE IRWIN: I can immediately see that logic. So far as costs are concerned in relation to your successful resistance of an interlocutory injunction or any other relief before the poll took place, I quite see the logic of your position, irrespective of whether there is or is not a jurisdiction of the court, or indeed irrespective of whether there is or is not a jurisdiction to be exercised only sparingly, because you won. What I am concerned with is any costs attributed to the argument that this court has no jurisdiction after the event of the poll, because that seems to me to turn on whether you are right that there is no jurisdiction of the court.[105]MR STRAKER: My Lord yes, whereas, as I have indicated, and what I have prepared for and what I was proceeding towards, was -- and one gets the sense that one is compressing what one would otherwise have said at greater length --

MR JUSTICE IRWIN: But this is for costs --

[107]MR STRAKER: Yes, exactly so, but the character of the argument to be presented before your Lordship, and the character of the argument which has always been foreshadowed, was that this jurisdiction, which is being exercised by way of judicial review, can be accepted to be operative in the very rare case, or the rarest case imaginable, hardly ever and that therefore this was a hardly ever circumstance, with my ability to point out to your Lordship that the circumstance could be argued to be one with jurisdiction excluded but that I did not need to go that far. That is how I was going to do it and that was what was always being forecast and so the position is one whereby, as I say, it would have been entirely remiss, I would respectfully say of a returning officer, to have failed to draw attention to these preclusive provisions, to the restrictions that have been laid down in the various cases, to include, that -- if I may just take a moment to show your Lordship what the Master of the Rolls said about this sort of matter in 2006.[108]He was confronted by a case where in actual fact what had happened was that the returning officer, rather unfortunately, had put some papers in a filing cabinet and had not looked at them in sufficient time to enable them to be dealt with and he then referred to the legislation, referred to the timetable. At paragraph 13, refers to it being important to note that the Act nowhere confers on the High Court jurisdiction to intervene or to make orders in the course of an election and then he says there abide by contrast many provisions which govern proceedings after the election and your Lordship will recollect that I gave your Lordship the list of sections in rule 6, and some of those after the election. Then he refers to the circumstance and then if one goes on, paragraph 19:
"As already indicated, the Act makes no provision for the High Court to make orders for judicial review in the course of an election. Mr Straker does not however submit that the High Court has no jurisdiction to grant relief. He recognises that the High Court has, or may have, jurisdiction under section 31 ... As I see it, the judge was invoking the power to grant a mandatory injunction when he ordered the returning officer to countermand the poll."
So the Master of the Rolls describes the election, that of the poll:
"Mr Straker submits that such an order should, as he put it, hardly ever be made. I agree. That was the approach of Scott Baker J ... where he said at paragraphs 37 ... that the court would have jurisdiction to interfere with a decision [as to the nomination paper being invalid]... I agree with Scott Baker J that the court should be extremely slow to intervene. It should only do so in a most exceptional case. Parliament has conferred duties (but not discretions) on returning officers and has made express provisions as to how any decision of a returning officer might be challenged, namely by petition before an election court after the election. Save in a wholly exceptional case..."
[109]MR JUSTICE IRWIN: Could we just pause there? Is that not the key point here? If it is agreed that there cannot be an election petition here, we cannot have the situation where there is no legal remedy.[110]MR STRAKER: Well, my Lord, that then simply takes us back to the point that I am content to say this is a hardly ever position.[111]MR JUSTICE IRWIN: How can it be even that? If there is no election petition, then any wrong would have to be dealt with by way of the court's jurisdiction.[112]MR STRAKER: No, because that last point, my Lord, is not right. Any wrong would have to be dealt with by way of judicial review, because there remain provisions within the Representation of the People Act enabling, if this be the circumstance, for criminal proceedings to be brought and --[113]MR JUSTICE IRWIN: That is not a remedy. Criminal proceedings does not get the poll rerun or quashed.[114]MR STRAKER: I absolutely accept that, my Lord. Of course that is right. But, my Lord, in my respectful submission nonetheless the circumstance is one whereby there is a grave peculiarity if the position is one whereby the candidate who was being elected was "Please vote for me to be chairman of the parish council and we have an election about it under the very same rules. I stand on the platform of dealing with the foundation and securing that the Foundation alters its forms of governance. That is my manifesto". Suppose I do that. Then, the circumstances: I get elected, the Foundation could never -- they could never bring a petition against me because in order to bring a petition you have to be a particular class of voter or you have to have been a candidate.

MR JUSTICE IRWIN: But a contrary candidate or anyone in the community who was a voter could --

[116]MR STRAKER: Well, you would have to have been given a number of --

MR JUSTICE IRWIN: All right, but there is a remedy.

[118]MR STRAKER: But a remedy which is limited because the circumstances are such that the Foundation, for example, if they were the body concerned, could not bring it. Now, my point is simply this: that in circumstances where the judicial view is, and the determining authority is, that these are hardly ever cases, that no real distinction should be made in my submission between the circumstance where you have a poll such as this, with the same statutory language being applicable, the same principles being applicable and circumstances then to say, ah well, nonetheless we can allow for a challenge to be made on the basis that, even though this is not an exceptional case, we will just let it run through and so that is where it gets to and in my respectful submission there is quite a powerful argument that, if one thinks about it for a moment, the position is that it is most more likely that Parliament would have wanted to have had preclusive provisions and a restriction on this type of case, you should not be able to renew your argument on a debate point in the courts, whereas, for someone who is elected to an office, you can go off to an election court and debate that particular issue. So that is just that other side of that particular coin.[119]But, my Lord, what it really does not grapple with, if I may respectful say so, is that the courts have made it plain that these are to be exceptional cases and had made it plain that thou shalt not interfere with the timetable. What my learned friend, even after the poll, is seeking to do is to do precisely that because he is saying -- and the relief sought is "please can we get rid of the poll and declare that it ought not to have taken place". My Lord, your Lordship will have that.[120]MR JUSTICE IRWIN: If you are right that he should not be able to intervene with the timetable beforehand, then what else is he to do?[121]MR STRAKER: My Lord, it is perfectly straightforward what he should do, with the greatest of respect -- is that the rules required that notice, public notice, had to be given. Public notice had to be given and public notice was given, that distinct step identified in the rules: here a public notice, a public notice of which they were fully aware and, even though in their grounds they suggest that they were not aware, they were fully aware of it, as your Lordship has seen in the February document and what they should have done is this. They should have said at the outset "this is not a parish affair, dear Mr Chairman, and therefore you ought not to allow discussion of it because your meeting is meeting for that purpose" and if the position was plain, whereby it was going to be maintained this is going to be discussed, then they could have considered whether or not they wanted to go to court to inhibit that discussion from taking place. But they could not, in my respectful submission, sit on their hands, wait until the Friday before the Monday, which is effectively what they did, and then say to Owen J, thou should stop part of this poll -- not the other part -- stop part of the poll which concerns us, the Foundation, but allow the other part of the poll to proceed which deals with the abolition of the city council.[122]So, my Lord, there is the position -- and I am conscious that I have probably trespassed in a way that your Lordship did not indicate at the outset -- but, my Lord, the position is one whereby, with the greatest of respect, my learned friend and his side never appear, in my respectful submission, to have grappled with the fact that this was and always was something which is regulated by the Representation of the People Act provisions, and indeed that is expressly so stated, regulated by that particular timetable which has the consequences indicated, so producing the result to enable it necessarily to be argued before your Lordship that this was a matter whereby one can categorise it as something that either that should have been done, timetable, or which should hardly ever happen save in the most exceptional case.[123]So that is how it goes to and in my respectful submission, when one harks back to the question of costs, it is abundantly plain that the Foundation embarked upon the litigation for a particular purpose. They were invited to withdraw at an early stage. At each stage they have gone forward. At every stage it has been made plain that this was a parish affair. They have failed on that and in my respectful submission there is no basis whatsoever for saying that we should not have our costs on a hundred per cent basis.

MR JUSTICE IRWIN: Thank you.

[125]MR STRAKER: My Lord, can I just give your Lordship the reference as to invitation for withdrawal? I think it was made on one or two occasions but at page 867 to 870 a limitation for withdrawal is given.

MR JUSTICE IRWIN: This is in bundle 2?

[127]MR STRAKER: Yes, that would be right.

MR JUSTICE IRWIN: 867, did you say?

[129]MR STRAKER: 867 to 870 is a request --

MR JUSTICE IRWIN: My bundle 2 stops at 863.

[131]MR STRAKER: Right. Well, my Lord, perhaps I can pass in these -- well, the 867, we ask for withdrawal and that had also been suggested before, but 867 we say, for example, the first defendant remains of the view that these proceedings are, as they always have been, misconceived and wasteful of public resources. The claimant has been invited to withdraw them in our letter of 4 July, which was not included within our hearing bundle and is therefore attached to this letter.

MR JUSTICE IRWIN: Do you think I could see a copy of --

[133]MR STRAKER: Of course. I am so sorry, my Lord. That is 867 and 868. Can I pass those up? (handed)[134]MR JUSTICE IRWIN: 4th July -- I think it must be an another letter of 4th July, because this one reads "please find enclosed the Council's grounds of opposition and witness statement".[135]MR STRAKER: I see. I am so sorry, my Lord.

MR JUSTICE IRWIN: So I do not think that is going to take it very much further.

[137]MR STRAKER: I see. I do not think we have the one of 4th July, but we had plainly asked on 4th July as well. But, my Lord, if I can just -- my Lord, I am very conscious of the time of all this.

MR JUSTICE IRWIN: Yes.

[139]MR STRAKER: If I can just indicate this, if I may: in my respectful submission, quite apart from this force of the points that I have made and the material which I have shown your Lordship, quite apart from the force of those, and it is all elaborated in the documents, if ever there was a case crying out, in my respectful submission, for a view to be taken that the risk of these proceedings was always to be laid at the door of the Foundation, who were conscious of what they were doing, conscious of what they had not done and conscious of what everybody was saying as to the strength of their proceedings, that this is that case, which would then justify, as I would have it, in my respectful submission, the full award of costs.[140]My Lord, of course, I am very happy, if your Lordship wants to have anything in paper or wants to have on paper --

MR JUSTICE IRWIN: Well, I think we have now spent an hour and a bit on it, so --

[142]MR STRAKER: But my Lord, that is it. Unless I am reminded of anything. (pause)[143]Yes, I am just being reminded that of course Owen J at the first stage refused it on the basis of our parish affairs point, amongst others, and so at every stage that point has been raised and had that matter been followed through we would not be here today.

MR JUSTICE IRWIN: Just a minute.

[145]MR WRAGG: My Lord, my position is much simpler. I think my learned friend takes issue with the fact that time was spent in the grounds discussing alternative remedies. My Lord, I would simply say that the costs of the second defendant are a quarter of those of the claimant and the first defendant and that the issue in respect of the alternative remedy took up four pages of a bundle of 880 pages and that my learned friend in his skeleton argument dealt with it quite quickly. In fact, he said at paragraph 59:
"The Foundation proposes to deal shortly with the suggestions advanced by Councillor Ross that there are alternative remedies via various local government and other public officers."
That took him three paragraphs, my Lord. In short, it is very minimal and we seek all our costs.

MR JUSTICE IRWIN: Thank you.

[147]MR WRAGG: I am grateful.[148]MR CLARKE: Well, I broadly agree with what my learned friend says. It is not a big point and his costs are indeed very modest in total. Our only quibble about them -- his very modest hourly rates and so forth, our only quibble on my learned friend's costs really is that the hours spent are quite high, albeit the hourly rate is low, and therefore the total comes out low, but there is a lot of hours spent and if my Lord was doing the summary assessment, the easy fix, the good old fashioned wave the sword, we say there is --

MR JUSTICE IRWIN: Is anyone asking me for a summary assessment?

[150]MR CLARKE: Well, my Lord, ordinarily on a one day it would be a summary assessment, which is why the parties have put in their bills. Now, the position as regards -- and I would say with Mr Wragg's costs you could do a summary assessment and you could shave a bit off because he spent too many hours. But it may seem a bit curmudgeonly to say that, as his hourly rates are so modest, but hours is hours. The more difficult --[151]MR STRAKER: I am so sorry to interrupt. Does your Lordship have the summary assessments which have been put it, because it might be convenient if your Lordship had those?[152]MR JUSTICE IRWIN: Well, I have some here. There is Letchworth Garden City.[153]MR CLARKE: That is probably Mr Wragg's. You may not have Mr Straker's.[154]MR STRAKER: Can I pass that in, my Lord. I think our figure comes out at something like half of the Foundation's figure.[155]MR CLARKE: Now, my Lord, the position with Mr Straker's cost is more problematic, because there is a question of principle. I leave aside any questions of itemised --[156]MR JUSTICE IRWIN: Just a minute, Mr Clarke. One thing at a time. I am going to look at the summary assessments to make sure I understand I have the right documents. Mr Wragg, so far as yours is concerned, I see a landscape sheet and I also see a summary assessment cost with the same figure in.[157]MR WRAGG: My Lord, yes. It is the first two pages that your Lordship may wish to focus on. The last just deals with some statistics regarding VAT. It is the first two pages. My Lord, yes.

MR JUSTICE IRWIN: And that is the lot?

[159]MR STRAKER: My Lord, yes. The first two pages, yes. It is a total of £10,184.[160]MR JUSTICE IRWIN: As long as I am clear about that, that is fine. Thank you. So far as -- now, who is this? 36,620.[161]MR CLARKE: 35,327 for Mr Straker's team. The VAT inclusive total for Mr Straker's team is 35,827.

MR JUSTICE IRWIN: Well, I have one here that --

[163]MR CLARKE: That the claimant's one, my Lord.[164]MR STRAKER: My Lord, I think it is other side your Lordship wants.[165]MR CLARKE: Yes, that is the claimant's.[166]MR JUSTICE IRWIN: I follow -- at the top it did not tell me which party it was. So this is D1, yes.[167]MR CLARKE: D1, you can see that there is a Mr Sawyer, is the name of the grade B lawyer, and there is the various items. My Lord, if we were doing summary assessment, I would have a few small points on that but not very big points, but can I just come back, first of all, and briefly, answering some of the observations made by my learned friend about the issue of principle. My Lord, he says, on his never hardly ever point -- I mean, we have gone from Trollope to HMS Pinafore now, but he -- my Lord, all of those observations are germane and often very germane in cases which concern real elections and where there are electoral petition remedies available to claimants. This was a very unusual case where, my Lord, it concerned the vires of the poll and, if one tests my learned friend's proposition in this way, it seems to be suggested that even if one had a really outlandish poll -- supposing a parish poll, not this parish, some parish somewhere, said we are going to have a poll that says that the local Tesco is not allowed to employ people that are not British, some completely outrageous, mad poll. Can it be said that that could not be stopped?[168]MR JUSTICE IRWIN: I followed that point. I have made it to Mr Straker.[169]MR CLARKE: Indeed, and that is because this was a vires challenge. Now, of course, it so happens that my Lord is against us on the vires challenge but, in principle at least, it was there to be made and indeed we, as my Lord said, had no other options, we had no other remedy, and my learned friend, when my Lord tries to pin him down and he says do you agree, this is not challengeable under the 1983 Act, he says it is regulated by the Act. Well, what does that mean? It is not regulated --

MR JUSTICE IRWIN: I think I have your points, Mr Clarke.

[171]MR CLARKE: Yes, absolutely. That leads me to say this. My Lord has now heard enough, in my view, to take a view about the section 48 point and to take the view that is wrong and to take the view that it should not be a point in which my learned friend gets his costs. That is my primary position. If I am wrong on that then it should be sent for detailed assessment.[172]MR JUSTICE IRWIN: I do not think the detailed assessment is going to sort out of the question of the principle.[173]MR CLARKE: Indeed, and my Lord is better placed than a costs judge. As a public law judge, my Lord is better placed, having heard argument, concise argument, but it is a concise point, statutory construction. My Lord's is very able to wrestle with the statute and we say the statute is plain, and plainly in my favour, and that is why my learned friend's point is bad.[174]Just a few other points, and I am not going to spend a lot of time on this, but my learned friend suggests that we all came to the situation very late. He omits to mention there was extensive pre-action correspondence between the parties.

MR JUSTICE IRWIN: I did read some of that.

[176]MR CLARKE: There was an attempt to try and resolve this -- and it was very fair and measured and calm correspondence, I should say, as between the claimant and the returning officer. The section 48 point was never raised, an electoral petition point was never raised. My Lord, I do not want to go into the sort of old unhappy far off things, but when Owen J received submissions from Mr Straker, it was expressly submitted by the returning officer that this was a challengeable matter under the 83 Act and the petition regulations applied and, my Lord, just to give you two references --[177]MR JUSTICE IRWIN: Look, I am really, really, really going to stop you, because I have had enough about the history and --[178]MR CLARKE: Absolutely, but, my Lord, it was put in a different way from the way it is now put. My Lord has considered how it is now put and, as I say, has enough material to take a view on that so I invite my Lord to do so.[179]While I am on my feet, just a few points of small detail, if we are doing the now can we have the quibbling about the money --

MR JUSTICE IRWIN: Can we begin, please, with D2, look at that?

[181]MR CLARKE: Yes. As to that, my only real complaint, and I know it may seem a bit churlish to make it, given the overall modesty of the bill, is that the number of hours spent by my learned friend seems high: 36 hours, I think, attending his client and 44, nearly 45, hours on documents. Given the nature of the case, where it is not a document heavy case, and indeed documents have not played much part at all today, the hours do seem high, albeit that when one adds them up because of the modest hourly rate, it does not come out as a big total but I would say that something ought to come off for that and some small factor also, perhaps, for running a point which did not go anywhere, although I accept entirely what Mr Wragg says, it was not a big point and it did not take up much time. So that is all I would say about Mr Wragg's costs and --[182]MR JUSTICE IRWIN: Well, before we get to -- let just deal with that. I will hear what he wants to say. Anything you want to say?[183]MR WRAGG: My Lord, the only point on that I would make is that the reason that the hours might be slightly more than would otherwise be the case is that the second defendant chose to instruct counsel at direct access basis and did not instruct solicitors and that is why the hours are slightly longer than would normally be the case but still, in the round, the costs are significantly less, my Lord.

MR JUSTICE IRWIN: You shall have your costs in £9,500.

[185]MR WRAGG: I am grateful, my Lord.[186]MR JUSTICE IRWIN: Now, what I propose to say about the costs as between claimant and the first defendant is this. It seems to me that the defendant is entitled to 100 per cent of costs to be taxed, to be assessed if not agreed, up to the point where the renewal of permission succeeded, because that involves the decision of Owen J and then they went there, so they should be protected against costs until they come back here. From that point on, I will rule that the defendant should receive 65 per cent of its costs. Do you want me to assess that or do you want that to be assessed fully?[187]MR STRAKER: I am very happy for your Lordship to do the maths on 65 per cent of the --[188]MR JUSTICE IRWIN: Well, I might need some help as to when the time -- where in the bill, because I am giving you an award of costs --[189]MR STRAKER: Yes, of course. I am so sorry.[190]MR CLARKE: I suspect, my Lord, it is going to be difficult to do it on the hoof today, because we will have to -- it is not clear from the schedule --[191]MR JUSTICE IRWIN: Well, that is what I thought. But what would make sense, I would have thought, rather than go off to a full assessment, is for the parties to discuss what that means and to reach an agreement on what 65 per cent of the defendant's costs from that date onwards, plus 100 per cent of the costs from beforehand, and then to ask me to make an order in those terms, because it will speed it up and avoid all the costs.[192]MR CLARKE: My Lord, I accept that and can I just say this, my Lord, two points of detail? On Mr Straker's costs, one point I was just going to mention to you was a point of detail was that we were surprised to see a bill put in for the chief executive's time and the democratic service manager's time, because they are not in-house lawyers. Ordinarily, management time --[193]MR JUSTICE IRWIN: Yes. That is right, is it not? Normally they are not in the legal bill.[194]MR STRAKER: Well, my Lord, he had to --

MR JUSTICE IRWIN: I do not doubt for a moment he had to do work --

[196]MR STRAKER: My Lord, yes.

MR JUSTICE IRWIN: -- but that is not normally in a legal bill, is it?

[198]MR STRAKER: Well, ordinarily, in my experience, would be embraced within the local authority bill and, my Lord, for example, that is going to include money which was spent and time which he had to spend on answering a question which arose out of a failed attempt to get names of those who had put forward the proposal. He had to swear a witness statement, or make a witness statement, dealing with that. So that, in my respectful submission, there is not and should not be any quibble about this and, if your Lordship looks through that material, your Lordship will see how that came to be composed.

MR JUSTICE IRWIN: It is a very small part of the bill anyway.

[200]MR STRAKER: Yes.[201]MR CLARKE: Yes, it is a small point, my Lord. We simply say it should not be there and it should come out as a matter of principle and then we could try and agree with my learned friend's team where you draw the line so as to which they get 65 per cent.

MR JUSTICE IRWIN: Well -- is there any other point you want to make?

[203]MR CLARKE: The only point is, on Mr Wragg's costs, I think what you have done is you have given a global figure, that is a VAT inclusive figure, because his total of ten plus includes VAT and you have knocked that down to 9,500, I think.

MR JUSTICE IRWIN: I am not intending to give him 9,500 and then more than his bill --

[205]MR CLARKE: So that is inclusive of VAT. So we will have to do the sums on that.

MR JUSTICE IRWIN: I feel generous, Mr Wragg, but not that generous.

[207]MR WRAGG: Thank you, my Lord. My Lord, should I just ask for that to be paid within a certain timescale? 14 days?

MR JUSTICE IRWIN: Well, normally 28.

[209]MR CLARKE: Whatever the usual time is. This is not an interim --[210]MR WRAGG: I thought it was 14 days.

MR JUSTICE IRWIN: Are you happy with 14 days?

[212]MR CLARKE: I cannot see any reason why not.[213]MR STRAKER: It will help get the credit moving.[214]MR JUSTICE IRWIN: Right. Well, what I look forward to then -- I will take away with me -- in fact I will take all three bills, because it is sensible to have them for comparison.[215]I should say, Mr Straker, obviously it is not possible to make a proper ruling on the argument that has caused you not to get a hundred per cent and nobody should treat it as any kind of authority, but I have to take a view and I cannot accept that, even after a poll, where you cannot intervene once the poll had been called for, that there is no remedy.[216]MR STRAKER: My Lord, yes. In other words, one would be left with a hardly ever position, which was the position that I would have been contending for and was contending for.[217]MR JUSTICE IRWIN: I see, but the logic for hardly ever is to interfere in an electoral process, in the commonly understood sense. This is likely to be the only benefit for an unlawful poll of this kind. Unless it is stopped before it is called, the courts have to be able to move in and deal with unlawful remedy.[218]MR STRAKER: Well, my Lord, there will still remain the debate as to hardly ever but, my Lord, plainly your Lordship has indicated what the position is in terms of how the costs should fall out and we will provide the figures, which take the matter up to the date that Plender J gave his judgment of a hundred per cent and thereafter the 65 per cent.[219]MR JUSTICE IRWIN: That is right. Could you apportion it, because I need to think about the point Mr Clarke has made about the Council officers, rather than lawyers. Can you apportion those?[220]MR STRAKER: We can try to do so, my Lord.[221]MR JUSTICE IRWIN: I mean, just roughly. It is not going to make any significant difference.[222]Thank you all very much.