Saghir & Ors v Najib & Ors [2005] EWHC 417 (QB)

[2005] EWHC 417 (QB)

Case No M/308/04

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

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

Date 22 March 2005

Before

THE HONOURABLE MR JUSTICE RICHARDS

THE HONOURABLE MR JUSTICE TUGENDHAT

Between

(1)Chaudhary SaghirPetitioners

(2) Faizan SaghirPetitioner

(3) Shakir SaghirPetitioner

(1) Mohammed NajibRespondents

(2) Arshad MahamoodRespondent

(3) Zafar Iqbal DinRespondent

(4) Paul Sheehan (Returning Officer)Respondent

Mr Eric Owen (instructed by Inesons) for Petitioners

Mr Martin Westgate (instructed by Steel and Shamash) for First to Third Respondents

Mr Timothy Straker QC (instructed by Sharpe Pritchard) for Returning Officer

Mr Steven Kovats (instructed by Treasury Solicitor) as Advocate to the Court

Miss Emily Radcliffe Noting Brief for DPP

Hearing Hearing date: 25 February 2005

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

[1]The court has before it two applications to strike out an election petition. The case relates to a local election that was held in respect of Calderdale Metropolitan Borough Council on 10 June 2004. The election was combined with the European Parliamentary election held on the same day. Calderdale is in the Yorkshire and Humber Region which was one of the regions chosen to pilot all-postal voting arrangements for the combined elections.

[2]The petitioners were Conservative candidates in one of the wards in the local election, namely Park Ward. The first petitioner had served as a Conservative councillor for the previous four years and was standing for re-election. The second and third petitioners are his sons and were also standing for election. They were all unsuccessful. By their petition they complain about the conduct of the election and seek to challenge the result.

[3]The first to third respondents stood as Labour candidates for Park Ward and were declared duly elected by the returning officer. The fourth respondent is the returning officer himself, who is also chief executive of the council.

[4]Separate applications to strike out the petition are brought, first, by the returning officer and, secondly, by the first to third respondents. In each case it is contended that the petition should be struck out for failure by the petitioners to comply with the relevant procedural requirements and for lack of particularity or of any prospect of success.

[5]In December 2004, at a time when the petitioners appeared in person, Bell J and Walker J adjourned the hearing of the strike-out applications, gave directions as to the filing of further evidence and directed that the Attorney General be requested to consider arranging for counsel to be instructed to assist the court at the adjourned hearing. This resulted in the Attorney instructing Mr Kovats to appear as advocate to the court. We are very grateful to the Attorney for doing that, and to Mr Kovats for the assistance he has given. In the event the petitioners themselves also decided to instruct counsel, Mr Owen, by whom they were represented very ably before us. We heard in addition from Mr Straker QC for the returning officer and from Mr Westgate for the first to third respondents, to whom we are also grateful for the clarity of their submissions.

Legislative framework

[6]Local elections for metropolitan district councils are held pursuant to section 7 of the Local Government Act 1972 and in accordance with rules made under section 36 of the Representation of the People Act 1983. The election in this case was an all-postal election held under the terms of the European Parliamentary and Local Elections (Pilot) Act 2004.

[7]By section 127 of the 1983 Act, an election under the Local Government Act may be questioned on certain grounds, including that the candidate was not duly elected or that the election was avoided by corrupt or illegal practices, but this may not be done except by an election petition.

[8]By section 128(1)-(2), a petition may be presented by a candidate at the election; any person whose election is questioned, and the returning officer of whose conduct the petition complains, may be made respondents. The section further provides: “(3) The petition shall be in the prescribed form signed by the petitioner and shall be presented in the prescribed manner - (a) in England and Wales, to the High Court …. (4) In England and Wales the prescribed officer shall send a copy of the petition to the proper officer of the authority for which the election was held, who shall forthwith publish it in the area of that authority.” (a) in England and Wales, to the High Court ….

[9]Section 129(1) provides that, as a general rule, a petition must be presented within 21 days after the day on which the election was held. Different time limits are laid down in respect of circumstances that are not material here. By section 129(6) a petition presented within the time limit may be amended with leave of the High Court for certain limited purposes and within a specified time limit.

[10]Section 136 deals with 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. (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 and of the amount and nature of the security; and (b) a copy of the petition.”

The remainder of section 136 deals with objections to any recognisance given and with the consequences if no security is given or any objection is allowed and not removed. … (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. (a) a notice of the presentation and of the amount and nature of the security; and (b) a copy of the petition.”

[11]Section 157 deals with appeals and jurisdiction. It provides in subsection (1) that no appeal lies without the special leave of the High Court from the decision of the High Court on any question of law under the relevant provisions of the Act. Subsections (2) and (3) are relevant to the analysis in Ahmed v. Kennedy

[2003] 1 WLR 1820

, considered below, of the hierarchy of applicable procedural provisions. Subsection (2) provides that, subject to the provisions of the 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 in the case of election petitions. By subsection (3) the High Court has, subject to the provisions of the Act, the same powers, jurisdiction and authority with respect to an election petition and proceedings on it as if the petition were an ordinary action within its jurisdiction.

[12]Section 182 provides for the making of rules of procedure. The applicable rules are the Election Petition Rules 1960 (“the 1960 Rules”), which have effect as if made under the 1983 Act. By section 185, unless the context otherwise requires, “prescribed” means prescribed by those rules.

[13]The relevant rules are as follows: “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 committees of the House of Commons used to act in dealing with election petitions. 4(1) A petition shall be in the form set out in the Schedule to these Rules or a form to the like effect with such variations as the circumstances may require, and shall state – … (d) the grounds on which relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved …. (2) The petition shall be presented by filing it and at the same time leaving three copies at the election petitions office. 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 section 136 of the Act …. 6(1) Within five days after giving the security the petitioner shall serve on the respondent within the meaning of … section 128(2) of the Act and on the Director of Public Prosecutions a notice of the presentation of the petition and of the nature and amount of the security which he has given, together with a copy of the petition and of the affidavit accompanying any recognisance. (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. … 13(1) An application by a respondent to stay or dismiss a petition before the day fixed for the trial shall be made by application notice to the election court or a Divisional Court at such time and place as the court may appoint. … 19(1) Any period of time prescribed by Rules 5, 6 or 7 shall be computed in accordance with section 119 of the Act and shall not be varied by order or otherwise, but save as aforesaid rules 2.8 to 2.11 and 3.1(2)(a) 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.” … (d) the grounds on which relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved ….

The Court of Appeal’s judgment in Ahmed v. Kennedy

[14]The effect of those various provisions was considered by the Court of Appeal in Ahmed v. Kennedy

[2002] EWCA Civ 1793

[2003] 1 WLR 1820

. In each case under appeal in Ahmed the petitioners had served notice of the petition but had failed to serve notice of the amount and nature of the security as required by section 136(3). The Divisional Court held that the requirements of section 136(3) "fall into that rare category of requirements, non-compliance with which makes the petition a nullity" and that "the present state of the law permits no latitude if there is a failure to comply with the requirements of section 136(3) within the time prescribed" (see the passages quoted by Simon Brown LJ at para 10 of the judgment of the Court of Appeal). The Court of Appeal upheld that approach, holding that since the petitioners had not complied strictly with the statutory requirements and had fundamentally failed to effect timeous service of a proper notice, the petitions were nullified and the Divisional Court had been right to strike them out. Save for one immaterial difference in rule 19 (which at that time stated that a period of time "shall not be enlarged" rather than the present wording "shall not be varied"), the legislative framework under consideration by the court was the same as in the present case.

[15]The main judgment of the Court of Appeal was given by Simon Brown LJ. An important element of the petitioners' case was that, whatever the 1960 Rules provided, any failures to comply with them were amenable to the exercise of the High Court's discretionary powers under the Civil Procedure Rules, notably CPR 3.10 and 3.1(2)(a). Simon Brown LJ rejected that argument, holding (at para 23) that the legislation dictates the following hierarchy of provisions:

"first, Part III of the Act and the Rules made under section 182(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)"

. He went on (at para 24):

“Given the primacy of the 1960 Rules over the CPR, it seems to me necessary next to consider the precise nature of the petitioners' 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 1960 Rules. It is, I think, helpful in this connection to recognise that non-compliance with section 136(3) and rule 6 can take any one of three forms: (a) late service (i.e. service out of time); (b) non-service of a necessary respondent …; or (c) timeous service of the respondent(s) but service which is defective as to the content of the documents served.”

[16]The petitioners in that case contended that their non-compliance was of the third kind. Simon Brown LJ rejected that contention, holding that there was a complete failure to give the notice within the prescribed time since the notice served was simply not the notice required. He stated (at para 28):

“I accept that it might be otherwise in other cases. Suppose, for example, the figure for security were misstated 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.”

[17]A little later he stated (at paras 31-32):

“31. As already indicated … I find it impossible to regard the non-compliance in the present case as a curable irregularity …. 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 [counsel'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 r.2.11, for example, ordinarily allows for parties to agree variations of specified time limits. Rule 19 disapplies it in rule 6 cases.”

[18]Having examined the legislative history and previous authorities, he made some further observations on the policy behind the relevant provisions, referring (at para 40) to - “… Parliament's insistence upon the strict compliance by both parties with the series of requirements imposed by section 136 of the 1983 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.”

[19]May LJ agreed. So did Clarke LJ, though he gave a separate summary of his reasons, which included the following passages:

“51. On the facts … 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 petitioners 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 petitioner 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. … 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 …. 54. In particular, all the cases to which Simon Brown LJ has referred … 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 r.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 exercise 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 1960 Rules, which are quite simple, and apply them in accordance with their terms.”

[20]When the Divisional Court in the present case asked that consideration be given to the instruction of an advocate to the court, it was because it was thought that the case might require a decision in the area deliberately left open by the Court of Appeal in Ahmed.

The facts

[21]Since the applications to strike out are based in substantial part on the petitioners’ failure to comply with the procedural requirements, it is necessary to look in some detail at the facts concerning the presentation of the petition, the giving of security, and the serving of notice of the petition and the security. There are areas of factual uncertainty or dispute which it is necessary to resolve. That has to be done on the basis of the written evidence and documentary material before the court, since there was no application to call oral evidence or to cross-examine on witness statements. At this stage I propose to describe the various pieces of evidence, reserving my conclusions on them to my discussion of the main issues.

[22]It will be helpful to explain at the outset that there came into existence two versions of the election petition. Each of them was a two page document. I will call them “version 1” and “version 2” respectively.

[23]Version 1 contained the following typed text on the first page, after the heading and a recital:

“(1) that Petitions are the persons who were conservative candidates in Local Government Election of Calderdale MBC (Park Ward) and claims to have had a right to be elected and return at the above Election. (2) that the election was held on June 10th 2004, when Mohammed Najib, Arshad Mahmood and Zafar Iqbal Din were labour candidates and on 11th June 2004, returning officer declared that Mohammad Najeeb received 2377 votes, Ashraf Mehmood received 2346 votes and Zafar Iqbal Din received 2246 votes and were declared to be duly elected. (3). That petitioners challenge on the grounds of all posted (poilet) trail failed and there isbreach of duty by returning officer that the said election was not conducted in accordance with election regulation r(4) 1960 and as amended by the people representation act 1983 SS ¦¦ 127.128(3) a. (4). That petitioner alleged, irregularity mistake and improper and unfair conduct of the said counting officers appointed by the returning officer and qualified staff responsible for having pre-fixed results and unbelievable turn 70.5% according to update progress and 67.5% according to declare result. The petitioners therefore pray; (1) That it may be ordered that there be scrutiny or re-counting of the votes so recorded as having been cost in the election. (2) Tht it may be determine that the said Mohammad Najib, Arshad Mehmood and Zafar Iqbal Din were not duly elected and that election was void. (3) That the petitioner may have such further or other relief as may be Just.”

In the bottom right hand corner of the first page were the names and signatures of the petitioners. On the second page there appeared the following typed text:

“Election Petition (Grounds of Petition) 1. New poilet trial of all postal votes. 2. Employing corrupt canvasser or agent. 3. Misconduct. 4. Votes wrongly admitted or rejected. 5. Return on votes wrongly counted. 6. Breach of duty by returning officer. New poilet (All postal votes is tried by election commission. But it proved atottal failer. People were unable to vote on their own, Mohammed Najib and others are guilty collecting the votes from house hold who has name on the register of voters”

Underneath the typed text there were written in manuscript, under the heading “Issue”, the name and address of the returning officer and the names of the other three respondents. (1) That it may be ordered that there be scrutiny or re-counting of the votes so recorded as having been cost in the election. (2) Tht it may be determine that the said Mohammad Najib, Arshad Mehmood and Zafar Iqbal Din were not duly elected and that election was void. (3) That the petitioner may have such further or other relief as may be Just.”

[24]Version 2 had the same first page as version 1. The first part of the second page was also the same as version 1, subject to the tidying up of a typographical error (the words “atottal failer” were replaced by “a total failure”). That was followed, however, by a new section of typed text:

“In addition they happened to employ or hire corrupt & religious impression person with beer, To collect the votes from registered elector by hook & crook eg sitting in, calling again & again and using relation to intimidate them, and scaring them in different ways. Many people telephone police and asked them to help but nobody take notice. Further to that breech of duty by the returning office, get it worse, votes (postal) opened on daily basis, without presence of our agents or representatives, accounting proceed without us being there. Counting staff was pro-Najib and ensuring him to do not worry we are here to look after. Counting was not done properly, correctly and fairly. Vote envelops received and opened according to update progress recorded 5942, votes boxed for counting were 5868, votes actually counted were 5554 with rejected 71. To get pre-fixed results 2377, 2346 and 2264 showing 70.7% turn up which is unbelievable. Issue to 1. Director of crown prosecution 2. Returning Officer (Paul Shaheen) 3. Mohammad Najib (11 Milton Place) 4. Arshad Mahmood (17 Hampden Place) 5. Zafar Iqbal Din (Penn Street)”

The list of persons under the heading “Issue to” replaced what had been written in manuscript at the bottom of the second page of version 1. The details were also different: the Director of Public Prosecutions was named for the first time, the address of the returning officer was omitted, and brief reference was made for the first time to the addresses of the other respondents.

Issue to

[25]As already mentioned, the election was held on 10 June 2004. The 21 day period under section 129(1) meant that any petition had to be presented by 1 July.

[26]The petitioners turned up at the elections petition office (the court office) to present a petition on Tuesday 29 June. Their account is that they were seen by a Mrs Burns. They produced a petition in the form of version 1, though seemingly not signed at the bottom of the first page nor containing the manuscript details of the respondents at the bottom of the second page. Mrs Burns advised them to pay the fee in the fees office, sign the petition and bring it back to her with five copies for service on the respondents, “with details of the respondents and anything else we wished to add to the petition”. They went to the fees office and paid the fee. The fee stamp was endorsed on one of the copies of the petition. The petitioners then added details of the respondents and “an extension of the grounds of the petition” as set out on the second page of version 2: they were able to produce a typed version because they had brought a laptop with them. After that they returned to the election petitions office and again saw Mrs Burns, who issued and sealed the five copies containing the extended grounds, i.e. version 2, and gave them to the petitioners for service.

[27]It seems that only one copy of the petition was left at the election petitions office. Inspection of the original on the court file, which bears the fee stamp and the court stamp, shows it to be version 1. It consists of two separate sheets and includes on the second page the manuscript details to which I have referred when describing version 1. A photocopy of this document was subsequently sent by the election petitions office to the returning officer (see below).

[28]After dealing with the issue of the petition, the petitioners arranged to see the Master at 2.00 pm on the same day, 29 June. The Master ordered that the amount of security be fixed at £2,500, such amount to be paid into court by 4.00 pm on Friday 2 July (with an alternative of giving recognisance for that sum). The Master's order recites that he had read the petition. It is accepted in the first petitioner's third witness statement that the petition he read must have been version 1.

[29]On the basis of enquiries at the election petitions office, the respondents allege in their evidence that at some time between 30 June and 2 July the first petitioner attended the office and attempted to substitute a second page to the petition issued on 29 June, but the request was refused. The allegation is denied by the petitioners.

[30]On Wednesday 30 June the petitioners served a copy of version 2 on each of the respondents. The first page of what they served was a colour photocopy of a document bearing the court stamp; the second page was a separate typed sheet. Service was effected by personal delivery by the first petitioner to the secretary of the chief executive (i.e. the returning officer) at the Town Hall. A covering letter to each of the respondents, in materially the same form in each case, read:

“We enclose the copy of petition we have lodged with court on June 29th 2004. We here by give you notice that we paid into the court by way security of cost having sum of £2,500.00 on June 29th 2004. This being the sum, we were ordered to give as a security by the court.”

[31]Although the letter stated that the sum of £2,500 had been paid into court by way of security, no such security had been paid at that time.

[32]On Friday 2 July, within the time laid down in the Master’s order, the petitioners did pay the required security into court in the sum of £2,500. They obtained a court receipt for the payment.

[33]The returning officer’s solicitor, Mr Badcock, made a witness statement as long ago as 6 August 2004 in which he stated that no copy of the Master’s order was served on the respondents and that at no time since 2 July had notice been served that security had been provided. Copies of the order and court receipt were included in the exhibits to Mr Badcock’s witness statement; but, as confirmed by Mr Straker on instructions, those documents were obtained by Mr Badcock from the court file at the election petitions office before he made his witness statement.

[34]The petitioners’ response to that evidence has changed over time. According to the first witness statements of all three petitioners, which were filed pursuant to the court’s order of 20 December 2004, the petitioners sent copies of the Master’s order and court receipt “on Tuesday 5th July 2004” to each of the respondents and the Crown Prosecution Service. There is plainly at least one error there, in that 5 July was a Monday whereas the Tuesday was 6 July. It is further stated that receipt of “this letter, dated 5 July 2004” was acknowledged by the returning officer and the Crown Prosecution Service. But no such acknowledgment has ever been produced.

[35]A somewhat different and fuller account is given in the third statement of the first petitioner, which was filed just before the hearing. He states:

“I further maintain … that I did serve the Order re Security and the Receipt by delivery of a letter dated 6 July 2004 at the Chief Executive’s Office Town Hall Halifax, enclosing copies of the sealed Order and Receipt.”

He produces as an exhibit a letter headed “To Respondent” and bearing the date of 6 July. It reads:

“Please, have I given you the notice of petition with high court order to pay the security as ordered amount of £2500. Here is a receipt of court founding Office for the amount paid, £2500.”

Included in the same exhibit, apparently as enclosures to the letter of 6 July, are a copy of the Master’s order and of the court receipt for payment of the security. The court receipt, however, cannot be an actual copy of anything sent on 6 July, since it is clear from its markings that it is in fact a copy of the relevant page of the exhibit to Mr Badcock’s witness statement of 6 August 2004.

[36]The respondents’ reaction to the petitioners’ evidence on this point is emphatic. The returning officer states that there is no record or recollection of the letter dated 6 July or of a copy of the Master’s order or the court receipt being received by him or at the council offices either on 5 July or on 6 July or at any other time. Since the petitioners’ ultimate allegation relates to delivery of a letter at the Town Hall, it was unnecessary for the other respondents to file evidence on the point; but Mr Westgate was able to confirm on instructions from one of the other respondents that he had received nothing after the letter of 30 June enclosing the petition.

[37]On 7 July the returning officer received a letter dated 2 July from the court office, enclosing a copy of the petition as contained in the court file, namely version 1. The letter was sent to him pursuant to section 128(4) of the 1983 Act, in his capacity as “the proper officer of the authority for which the election was held”, for publication in the area of the authority.

[38]The returning officer issued his application to strike out the petition in August 2004. The other respondents issued their application in October. The applications have come before us for hearing after two adjournments, including that in December to which I have already referred. An application by the petitioners for a further adjournment was refused by me a few weeks before the hearing.

Non-compliance with the notice requirements

[39]The combined effect of section 136(3) and rule 6(1) is that within five days after giving the security the petitioners were required to serve on the respondents(a) a notice of the presentation of the petition, together with a copy of the petition, and

(b) a notice of the nature and amount of the security which they had given. The first main issue is whether they complied with that requirement. I shall consider the two limbs separately. For that purpose I shall assume, without deciding, that a notice in relation to the petition can be served separately from a notice in relation to the security.

[40]As to the petition, it is necessary to decide first whether the petition that was “presented” within the meaning of the 1983 Act and 1960 Rules was version 1 or version 2. For the following reasons I am satisfied that it was version 1: i) By section 128(3) a petition must be presented in the prescribed manner; and by rule 4(2), a petition is presented by filing it and at the same time leaving three copies at the election petition office. ii) Only version 1 can be said to have been filed and only in relation to version 1 can it be said that any copy (though not three, as strictly required) was left at the election petitions office. Version 1 was the only document that was both stamped with payment of the fee and sealed with the court stamp. It was the only version on the court file, which is why it was sent by the election petitions office to the returning officer by letter of 2 July. It was also the version read by the Master at the time of making his order with regard to security. iii) Version 2, by contrast, was created by the making of additions to version 1 at some time after payment of the fee. When those additions were made is a matter of some doubt. The petitioners say that it was before they took the document back to the election petitions office for sealing. But the sealed copy on the court file is not version 2 and it would be surprising if Mrs Burns stamped one version for the court file and copies of a different version for service on the respondents. Moreover the petitioners' account does not explain how Mrs Burns's initial advice that they should add details of the respondents resulted in the addition of manuscript details on the second page of version 1 as well as the typewritten details on the second page of version 2: one would have expected one or the other, but not both. A more plausible explanation is that the manuscript addition to version 1 was made before the petition was sealed but version 2 was created subsequently. That would also fit with the respondents' evidence, which the petitioners dispute, that the first petitioner attended the election petitions office at some time between 30 June and 2 July and attempted to substitute a second page to the petition. It is, however, unnecessary to reach any concluded view on that matter since on any view, as I have indicated, only version 1 can be said to have met the requirements as to presentation.

[41]The reason why all this matters is that the petitioners have to rely on their letters of 30 June as serving notice of presentation of the petition, together with a copy of the petition. Those letters, however, served notice of the presentation of, and enclosed a copy of, version 2. If the petition as presented was version 1, not version 2, then no valid notice of presentation was served and no copy of the petition as presented was served.

[42]Mr Owen contended that notice of version 2 could be treated as notice of version 1 since version 2 added to version 1 and the greater can be said to include the lesser. I would reject that submission. The notice provisions include a requirement to serve a copy of the petition and in my view that cannot be satisfied by serving a document that includes the text of the petition but is not itself a copy of the petition. The respondents are plainly entitled to be served with a copy of the specific document, so as not to be left in any doubt about the precise allegations that they have to meet.

[43]I should mention for completeness that, although a copy of version 1 was sent to the returning officer by the election petitions office pursuant to section 128(4), in my view that did not amount to the serving of notice by the petitioners. Mr Owen did not seek to argue otherwise.

[44]It follows that the petitioners did not, within the prescribed time, serve notice of the presentation of the petition or serve a copy of the petition. The notice they served related to a document, version 2, that was not the petition they had presented.

[45]I turn to consider whether the petitioners complied with the requirement as to service of notice of the nature and amount of the security which they had given.

[46]The letter of 30 June was incapable of meeting that requirement. It purported to serve notice that security in the sum of £2,500 had been given, but no security had in fact been given at the time the letter was sent: security was not given until 2 July. Rule 6(1) provides in terms that a petitioner must serve notice of the nature and amount of the security "which he has given" (emphasis added). It is plainly not possible to serve such notice before the giving of security. (I prefer to leave open the question whether notice of presentation of the petition can be served before the giving of security. It was argued strongly before us that the opening words of rule 6(1), "within five days after giving the security", are to be read as providing that any notice must be served within a period of time that starts with the giving of the security and ends five days later, rather than as simply prescribing the latest date by which a notice must be served. In relation to notice of the security the point does not matter since, as already indicated, there is a separate reason why notice has to be served after the giving of the security. In relation to notice of the petition the point does not arise in this case because, for reasons already given, the letter of 30 June did not amount to notice of presentation of the petition at all.)

[47]Was notice of the security served after the giving of security on 2 July? That depends upon the resolution of the factual controversy surrounding events of 6 July and the first petitioner's purported letter of that date. If such a letter was duly served, its terms were sufficient to amount to the serving of notice of the nature and amount of the security which the petitioners had given. For my part, however, I would hold on the balance of probabilities that no such letter was served at all. My reasons are these: i) The respondents' evidence, that no notice of the security was served after 2 July, has been clear and consistent from the outset. ii) The petitioners' evidence, on the other hand, has lacked both clarity and consistency. In the petitioners' first witness statements, it was stated that copies of the Master's order and court receipt were sent to each of the respondents and to the Crown Prosecution Service on Tuesday 5 July (which may or may not be a typographical error for Tuesday 6 July) and that receipt of the letter was acknowledged by the returning officer and the Crown Prosecution Service. But no copy of the letter or of the acknowledgments was produced. Very late in the day, in the first petitioner's third witness statement, the account changed to personal delivery by him of a letter at the chief executive’s office at the Town Hall on 6 July. A copy of the purported letter, apparently with its enclosures, was produced for the first time; yet one of the enclosures, the court receipt, was plainly copied from the papers filed by the respondents in these proceedings. iii) I can see no reason to doubt the respondents’ evidence that there is no record or recollection of the letter of 6 July or of the Master's order or the court receipt being received at the council offices on 5 July or 6 July. Had anything been delivered as asserted by the petitioners, it is likely that there would be a record of its receipt. iv) The lack of evidential support for the petitioners’ case is underlined by the fact that they did not file any certificate of service as required by rule 6(2).

[48]Another issue raised before us was whether the five day period for serving notice expired on 7 July or 9 July. That depends on the construction of section 119 of the 1983 Act. The point does not arise for decision, however, since the only matters relied on as constituting service relate to 5 July and 6 July and therefore fall within the five day period on either construction of section 119.

[49]It follows from the foregoing that in my judgment the petitioners did not serve, within the time prescribed, any notice of the nature and amount of the security which they had given.

[50]The petitioners' failure to serve the required notice of the petition or of the security brings this case squarely within the reasoning in Ahmed. As in Ahmed, this was not merely a case of deficient service within the time prescribed: on proper analysis, no notice at all was served within the time prescribed. Indeed, the present case can be regarded as an even stronger one on its facts than Ahmed, since in this case neither limb of the notice requirements was complied with. On the basis of Ahmed it is clear that such non-compliance with the procedural rules cannot be remedied and must lead to the striking out of the petition.

[51]Thus the question left open in Ahmed, as to whether the court has a discretion to validate or overlook a defective notice served timeously, does not in my view arise for decision after all. I should, however, make clear that if the court did have a discretion to cure the defects in this case, which in my view it does not, I would not exercise that discretion so as to cure them. The petitioners’ various failures are too extensive, and their conduct insufficiently meritorious, to warrant an exceptional exercise of discretion in their favour.

Lack of particularity or of prospect of success

[52]In view of my findings as to non-compliance with the notice requirements, it is not strictly necessary to deal with the respondents' further arguments that the petition should be struck out on grounds of lack of particularity and because it is bound to fail. I shall consider the point briefly, however, because in fairness to the respondents I think it right to make clear what I consider to be serious deficiencies in the petitioners' substantive case.

[53]The allegations made in the petition, i.e. in version 1, are very general and imprecise in nature. The petition does not seem to me to set out with sufficient particularity the facts relied on, as required by rule 4(1)(d). I am prepared to assume that that deficiency would not in itself render the petition invalid but would be capable in principle of being remedied by the provision of particulars. The petitioners' difficulty is that, despite having been given ample opportunity to do so, they have not put forward a sufficiently particularised case, whether by way of actual particulars or through their witness statements, and there can be no justification for giving them a further opportunity to provide sufficient particulars now.

[54]From the additional passage in version 2 it might be inferred that one aspect of the petitioners' case was an allegation of intimidation or undue influence in the collection of postal votes. Such an allegation, if it had substance to it, would be a serious matter, especially in the context of an election based on all-postal voting arrangements. It is not supported, however, in the first petitioner's second witness statement, filed pursuant to the court's order of 20 December 2004 requiring the petitioners to file evidence supporting the allegations in the petition. That witness statement refers to the Labour candidate starting a door to door collection of postal votes, but it makes no allegation, let alone any particularised allegation, of intimidation or undue influence.

[55]Another aspect of the petitioners' case, which can be found in version 1 but features a little more fully in version 2, is an allegation of improper, incorrect and unfair conduct in the processing and counting of the votes. Again it is not sufficiently particularised. Moreover the respondents' evidence includes a detailed and convincing account of the systems in place and of the various checks and balances that were applied in order to ensure that they were operated properly. Neither in the first petitioner's second witness statement nor elsewhere in their evidence do the petitioners seek to address the respondents' account or provide any cogent reason for doubting its accuracy.

[56]In short, nothing that is said by the petitioners leads me to consider that they would have any real prospect of success even if they were given a further opportunity to particularise their case properly. In the circumstances I am satisfied that they should not be given any such further opportunity.

[57]Accordingly, even if the petition did not fall to be struck out for non-compliance with the requirements as to notice, I would be prepared to strike it out on the grounds that it is insufficiently particularised and is bound to fail.

Conclusion

[58]For the reasons I have given I would grant the respondents' applications to strike out the petition, bringing the proceedings to an end.

[59]I agree.