Fitch v Stephenson & Ors [2008] EWHC 501 (QB)

[2008] EWHC 501 (QB)Case No M324/07
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/04/2008
Before
MRS JUSTICE COX DBEMRS JUSTICE DOBBS DBE
Between
JOHN FITCHPetitionerTOM STEPHENSONRespondentsHARSHAD DAHYABHAI BHAVSARRespondentANNETTE DAWN BYRNERespondentCOLIN STUART MARRIOTTRespondent
Graham Brodie (instructed by Patwa Solicitors) for PetitionerTimothy Straker QC (instructed by Leicester City Council) for First RespondentGuy Vassall-Adams (instructed by Steel & Shamash Solicitors) for Second, Third and Fourth RespondentsHearing Hearing dates: 25 th February 2008
Approved Judgment

Introduction

[1]This is the judgment of the Court, to which both members have contributed.[2]This petition, brought under s.127 of the Representation of the People Act 1983 (“the RPA”) by John Fitch, a defeated candidate, was presented on 24th May 2007. The First Respondent was the Returning Officer for the election and the Second, Third and Fourth Respondents were the successful candidates.[3]The petition alleges that the First Respondent failed to count a proportion of the votes cast in the election and that this failure constitutes such an irregularity in the conduct of the election that it cannot be said to have been conducted substantially in accordance with the law as to elections, contrary to s.48(1) of the RPA. The Respondents contend that the result of the election was unaffected by the failure to count a proportion of the votes cast; that the rules were otherwise all complied with; and that the election should not be avoided. In addition the Respondents allege that the petition is defective in form and was improperly served. This is denied by the Petitioner.[4]On 25th July 2007 Butterfield J ordered the parties to prepare a special case so that the case raised by the petition could be stated as a special case under s.146 (1) of the RPA, together with the question of whether any procedural steps taken or not taken debar further progress on the petition. A special case was prepared and agreed by the parties. The Court has accepted jurisdiction to treat the case as a special case.[5]Two issues therefore arise for determination, which are substantive and procedural, as follows: a) Whether the failure to count a proportion of the votes cast was such that the election was not conducted substantially in accordance with the law as to elections, notwithstanding that the result was not affected; b) Whether the petition is vitiated as a result of procedural failures.[6]The parties dealt with, and invited the court to deal with, the issues in the order set out. Accordingly, the court will deal with the substantive issue first, followed by the procedural issues raised by the Respondents.

The agreed facts

[7]The agreed facts, so far as they are relevant to these issues, are taken from the case stated. Local Government Elections for the 22 wards of Leicester City Council were held on 3 May 2007. The Returning Officer, the First Respondent, was Tom Stephenson, and the Deputy Returning Officers were Charles Poole and Alison Scott.[8]The votes for each of the 22 wards were counted at Aylestone Leisure Centre on 4 May 2007, starting at 1pm. Each ward was designated a table, managed by a Table Leader. The Table Leader for Abbey Ward was Katharine Owen. A group of five or six tables was overseen by a Bay Leader. The Bay Leader under whom Abbey Ward fell was Phil Cobb.[9]The Returning Officer delegated in the ordinary way the majority of the tasks relating to the count, exercising general oversight and dealing with issues brought to his attention. The process of counting was split into three stages: a) The Verification Stage; b) The Sorting Stage; and c) The Counting Stage.[10]The first two of these stages were properly executed. It is unnecessary, therefore, to rehearse the facts relating to them, which are set out at paragraphs 4 – 15 of the agreed Case.[11]Once the ballot papers were sorted, Ms. Owen put them into boxes ready for the Count Stage. However, she failed to check whether all the ballot boxes containing verified votes had been emptied on to the count tables and sorted.[12]The ballot papers were then counted. Thereafter, Ms. Owen performed a reconciliation exercise. This was incorrectly completed, as it showed that the reconciliation figure was close to the number of ballot papers accounted for. The provisional declaration was prepared based on the erroneous figures.[13]Ms Owen took the provisional declaration to Phil Cobb, the Bay Leader for Abbey Ward. Phil Cobb asked Ms. Owen if the figures reconciled. She told him the reconciliation had been close and, although not exact, within an acceptable variance. The Notes for Table Leaders Talk stated that the Reconciliation Sheet ‘should more or less balance’ – it may not balance by two or three votes if there had been a miscount within any of the counted bundles of 50 ballot papers, but if the result is very clear cut this would be acceptable. They decided to share the provisional result with the candidates and agents for the ward. This was done by Ms Owen, who cannot be sure which of the candidates and agents were present when she gave out the provisional result.[14]Ms Owen then handed the result directly to the Electoral Services Manager, Alison Scott. The Abbey Ward result was the second result handed to her. Ms Scott checked with Charles Poole, the Deputy Returning Officer, that a result could be processed if brought to her directly by a Table Leader. He confirmed it could. Ms Scott then entered the result into the system, with the assistance of her deputy, Stuart Hayden. The result was then circulated to the Web team and Communications Unit, and given to the Returning Officer to declare.[15]Ms Owen returned to the Abbey Ward table and asked the counters to stay behind to help other wards. The space and staff for the Abbey Ward count was then utilised by an adjacent count. Ms Owen asked if she could assist any of the counts, but was not needed. Some time later, she returned to the Abbey Ward table area, and began stacking the Abbey Ward ballot boxes. She then discovered a ballot box with several bundles of ballot papers inside. She looked through one bundle, and it was clear that it had not been sorted.[16]Ms Owen informed Mr Poole that she believed that some of the votes had been excluded from the final count for the Abbey Ward. In order to ensure that no similar mistakes occurred, Mr Poole undertook to carry out independent checks of all the documentation for each draft result. Thereafter, he began an assessment of the situation with the Abbey Ward count.[17]Mr. Poole asked Dan Jewson and Francis Connolly (Table Leader and Count Assistant respectively for Eyres Monsell Ward), and Ms Owen, to accompany him to a secure room adjacent to the main Hall, where the ballot boxes had originally been received and where there was some space to investigate the situation. Access to the room was restricted to authorised election personnel only.[18]Mr Poole informed Mr Jewson and Mr Connolly that it seemed that a ballot box for Abbey Ward containing verified ballot papers had mistakenly been excluded from the count, and that confirmation was required as to whether or not such an error had been made. Ms Owen returned to the main Hall and discovered another box of verified but uncounted ballot papers at the Abbey Ward table. She returned to the side room and indicated that there was more than one box. She and Francis Connolly returned to the counting hall and located the other box, which was brought back to the side room with the paperwork and ballot paper account for the Abbey Ward count. The ballot boxes had been unsealed and opened but contained votes which, whilst verified, obviously had not been sorted.[19]The Bay Leader under whom Abbey Ward fell, Phil Cobb, also went into the side room, and, with Mr Jewson, considered the paperwork for the Abbey Ward. Mr Cobb noticed that incorrect figures had been brought forward onto the summary sheet, which made it seem like the reconciliation was within an acceptable margin of difference. In actual fact, the number of ballot papers counted before the result was declared did not by a large margin match the number verified as having been issued in the day of the election: the number of ballot papers counted was 4930 of the 9099 issued i.e. 4169 of the ballot papers issued, or 45.8% had not been counted.[20]Francis Connolly and Dan Jewson emptied the boxes onto a large table, and verified that the number of uncounted votes matched the total number of votes missing from the Abbey Ward. They then separated the mixed and single party votes, and counted the single party votes. The mixed party votes were then counted using the sticky strip system, with the assistance of several other staff, and the results were checked several times.[21]This unofficial count showed that the result of the election for Abbey Ward would not have been different had all the votes been counted. Mr Jewson informed Mr Poole of the result of the unofficial count. All the paperwork for the Abbey Ward count and the counted ballot papers were then placed in one ballot box, which was kept secure until it was collected with the other ballot boxes by election staff.[22]Independently of that process, Mr Poole received two telephone calls from Liberal Party candidates, Mark Farmer and Margo Henry, suggesting that there was a disparity between the votes cast and the declared result for Abbey Ward. At around 10pm, Mr Poole met with the three Liberal Party candidates at the Aylestone Leisure Centre, and acknowledged that there had been an error in the count. He informed them that the addition of the missed votes did not have an effect on the outcome of the election, but indicated that they should consider whether to seek legal advice on the issue. He also informed them that the Returning Officer would be writing to all the candidates in the Ward regarding the matter.[23]On Saturday 5 May 2007, Mr Poole examined the original working papers and the documentation used by Mr Jewson and Mr Connolly, to arrive at figures for the actual casting of votes. This information was included in a letter sent by Tom Stephenson, the Returning Officer, to the candidates, on Tuesday 8 May 2007, and the information relevant to the parties in this case is as follows: Name of Candidate Description Declared Result Votes Cast BHAVSAR, Harshad Dahyabhai Labour Party Candidate 740 1219 BYRNE, Annette Dawn Labour Party Candidate 748 1248 FITCH, John Liberal Party Councillor for Re-Election 473 1024 MARRIOTT, Colin Stuart Labour Party Candidate 723 1225

The Petition – summary of submissions

[24]It is agreed that only 4930 of the 9099 votes cast in the election were counted for the purpose of declaring the result. It is not disputed that the failure to count the remaining votes did not affect the result. However, the Petitioner submits that failure to count what amounts to 45.8% of the vote constitutes such an irregularity in the conduct of the election, that it cannot be said that the election was so conducted as to be substantially in accordance with election law under section 48(1)(a) of the Representation of the People Act 1983. Relying on the decision of the Court of Appeal in Morgan and another v Simpson[1975] QB 151, 161, it is submitted that an election shall be declared invalid if it appears that it was not so conducted as to be substantially in accordance with the law as to elections irrespective of whether any failure affected the result.[25]The simple point made by the Petitioner is that there are complex rules in place, which entitle the electorate to a properly conducted election, i.e. one which maintains the secrecy of the ballot, minimises the risks of improper interference with the ballot papers and which is open to scrutiny. The ordinary, informed member of the public would consider the failure to count just under half of a significant number of votes was a sham or travesty of a ballot.[26]The Petitioner contends that the position is exacerbated by the informal count subsequently undertaken, without scrutiny by candidates or their nominees or by any member of the public, which is not only contrary to the guidance provided by the Court of Appeal in Gough v Local Sunday Newspapers (North) Ltd and another [2003] 1WLR 1836, but also contravenes section 46(2) of the Electoral Administration Act 2006.[27]Addressing the authorities which are relied on by the Respondents, the Petitioner makes the following points: a) each case has to be considered on its own particular set of facts and the cases can be distinguished on the facts; b) the scale and percentage of the missing votes in this case is such as to lead the court to find that the election was not conducted substantially in accordance with law; c) the cases relied on by the Respondents were decided before the decision of the Court of Appeal in Goughand the climate has now changed, with people being prosecuted for electoral fraud amidst an increasing level of public concern as to the integrity of the election process.[28]The response of the Respondents can be summarised as follows. It is accepted that there was a failure to count a proportion of the votes cast in this election and that Rule 45 of the Local Elections (Principal Areas) (England and Wales) Rules 2006 was not fully complied with. It is also accepted that there are observations in the authorities deprecating the carrying out of informal counts in general and that section 46 of the 2006 Act now prohibits the carrying out of informal counts as a means of correcting any procedural error. It is argued however, that the deficiencies in this case, where the outcome of the election was not affected, are not sufficient to render the election invalid, applying the test clearly set out in s.48 of the RPA.[29]It is submitted that the purpose of s.48 is to preserve an election, notwithstanding acts or omissions by the Returning Officer or other persons in breach of their official duties or in breach of election rules, providing that, when looking at the conduct of the process as a whole, the election was substantially in accordance with the law as to elections (s.48(1)(a)) and the act or omission did not affect its result (s.48(1)(b)). The decided cases, including those which Lord Denning considered in Morgan v Simpson, establish that the Courts will strive to preserve an election as being in accordance with the law, even where there have been significant breaches of official duties and election rules, providing the result of the election was unaffected by those breaches: see Woodward v Sarsons (1875) LR 10 CP 733; Islington 5 O’M & H 120; Marshall v Gibson, Divisional Court, Judgment of 14th December 1995; Harris v Gilmour, Divisional Court, Judgment of 11th December 2000. This is because, wherever possible, the Courts seek to give effect to the will of the electorate.[30]Marshall v Gibson and Harris v Gilmour are of particular relevance to the present case. Both cases concerned missing ballot boxes and significant breaches of duty. However, both elections were nonetheless upheld because the results were not affected by the breaches.[31]The Respondents make the following main points on the facts: a) there was full compliance by the First Respondent with his official duties at every stage of the election right up until the count: (see the agreed facts and the witness statement of Charles Poole of 24th July 2000). The election as a whole has to be taken into account, when considering whether it was substantially in accordance with the law as to elections; b) the ‘result’ of this election was not affected by any breaches of duty by the Returning Officer; the informal count shows that the same candidates would have won even if all the votes had been correctly counted. The Petitioner cannot therefore succeed under limb (b) of s.48(1) RPA; c) the case of Gough was a libel case arising in unusual circumstances. It does not assist on the question of what happens when there has been a failure to count votes and the result is unaffected. The cases which have resulted in elections being declared void all involve breaches which affected the franchise and in which the elections could not have been said to have been free and fair. This is not at all the situation in the present case; d) it is significant that the Petitioner, while criticising the informal count, has chosen not to demand a scrutiny and recount. It would have been open to the Court, on a scrutiny and recount, to declare the true result of the election. It is submitted that the Petitioner’s failure to opt for the proportionate remedy for challenging the count and his attempt instead to undermine the whole election is a matter to which the Court may have regard when considering the merits of this petition; e) the Petitioner’s case on s.48(1)(a) rests upon the contention that, because both a large number of votes and a substantial proportion of the votes cast were not counted, the election must ipso facto be found not to have been conducted substantially in accordance with the law as to elections. This is inconsistent both with the policy behind s.48 and the decided cases; f) the first and foremost duty of the Court in election cases is to give effect, wherever possible, to the will of the electorate. That principle would be undermined if inadvertent breaches of the election rules could invalidate a whole election even where the result had not been affected. This election represented the will of the electorate of Abbey Ward. It was substantially in accordance with the law as to elections under s.48(1)(a) RPA; and section 46 of the 2006 Act does not affect the clear statutory provisions of section 48 and the decided cases.

Discussion and decision

[32]As is common ground, the main statute governing elections is the Representation of the People Act 1983, which is directed principally at ensuring the integrity and secrecy of the ballot. The conduct of elections is heavily regulated. The series of strict, procedural steps which must be followed before declaration of the result is such as to allow for little discretion, for sound and obvious reasons.[33]Once a result has been declared it can only be altered by an order of a specially constituted Election Court, following a successful challenge by Election Petition under section 127 of the RPA, or by way of case stated to the High Court under section 146.[34]By section 36(1) of the RPA the election of councillors for local government areas in England and Wales is to be conducted in accordance with rules made by the Secretary of State. These are contained in the Local Government (Principal Areas) (England and Wales) Rules 2006. Prior to the count the Rules provide for a large number of detailed steps to be taken. There is no need to refer to these here because there is no dispute that the relevant steps were all taken and that the Rules were complied with.[35]Rule 4 sets out the requirements in relation to the count. In summary, it places a duty on the Returning Officer to make arrangements for recording the number of ballot papers in each ballot box in the presence of the counting agents (Rule 45 (1)(a) ) and for the verification of each ballot paper account in the presence of the election agents (Rule 45 (1)(b) ). Rule 45 (8) provides that the Returning Officer must, so far as practicable, proceed continuously with counting the votes.[36]The Rules do not expressly address the situation where a whole collection of votes is neither rejected nor counted but is simply overlooked, as happened in this case.[37]Section 48 provides as follows:
“48. – (1) No local government election shall be declared invalid by reason of any act or omission of the returning officer or any other person in breach of his official duty in connection with the election or otherwise of rules under section 36 or section 42 above if it appears to the tribunal having cognizance of the question that – (a) the election was so conducted as to be substantially in accordance with the law as to elections; and (b) the act or omission did not affect its result. (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.”
[38]In Morgan v Simpson [1975] 1 QB 151, Lord Denning MR reviewed the history of section 37 of the Representation of the People Act 1949 (the predecessor to section 48 of the 1983 Act) and the authorities. He summarised the law in three propositions, as follows:
“1. If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not. That is shown by the Hackney case, 2 O’M. & H. 77, where two out of 19 polling stations were closed all day, and 5,000 voters were unable to vote. 2. If the election was so conducted that it was substantially in accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls – provided that it did not affect the result of the election. That is shown by the Islington case, 17 T.L.R. 210, where 14 ballot papers were issued after 8pm. 3. But, even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls – and it did affect the result- then the election is vitiated. That is shown by Gunn v. Sharpe [1974] Q.B. 808, where the mistake in not stamping 102 ballot papers did affect the result.”
[39]On the facts of the case it was clear that although the election had been conducted substantially in accordance with the law, nevertheless the mistake in not stamping 44 papers when issuing them (causing them to be rejected) did affect the result. If the 44 votes on these papers had been counted in, the nearest rival candidate would have been elected. The election was therefore vitiated.[40]In Marshall v Gibson, Divisional Court, 14th December 1995, Colman J. giving the judgment of the Court said as follows, at page 15:
“The effect of section 48(1) of the 1983 Act is that an election will not be declared invalid merely because there has been a breach of official duty in connection with the election or of the Rules by the returning officer or any other person. There cannot be a declaration of invalidity unless it appears either that the election was so conducted that there was substantial non-compliance with the law as to elections or that there was a breach of official duty or of the Rules which affected the result. It is clear now that the ‘result’ means the question which person or persons are elected as distinct from the number of votes cast for each persons: see In re Islington West Division; Medhurst v. Lough (1901) 17 TLR 210. Thus if the consequence of a breach of the Rules is that one or more of the candidates would have polled more or less votes than were recorded at the count, but the same candidate or candidates would still have been elected, the result will not have been affected and the election can only be declared invalid if it appears to the Court that the election was not so conducted as to be substantially in accordance with the law as to elections.”
At page 17 he further explained the court’s reasoning:
“It is clear from the judgments of the Court of Appeal in Morgan v. Simpson [1975] 1 QB 151 that the aim of section 48 is to preserve an election unless the case falls within limb (a) or limb (b) of that section. It further appears from the decision of the Divisional Court in Levers v. Morris [1972] 1 QB 221, in relation to similar provisions in the Representation of the Peoples Act 1949, that if there has been a breach of the rules but the election court is able by means of scrutiny to ascertain the true number of valid votes cast, it can declare the result of the election ascertained by it whether or not consistent with that originally declared. If the breach of the Rules results in an erroneous conclusion at the count and therefore in an erroneous declaration, the election court can ascertain and pronounce the true result. It does not have to declare the election invalid merely because it arrives at a different result from that declared. In such a case there is indeed only one true result. If the breach of the Rules consists of an omission to count all the valid votes, that breach is inherently incapable of affecting that result. What it affects is that which is declared by the returning officer to be the result. Accordingly, the case cannot fall within limb (b) of section 48. Nor, in our judgment, can it fall within limb (a) if there has otherwise been an entirely true and fair election and the only relevant breach is the omission to count all the valid votes. That is because the availability of the judicial procedure provided by sections 128-130 of the 1983 Act enables the omission of the returning officer to count the votes to be remedied. Consequently, although it could clearly be said that the election had not been so conducted as to be precisely in accordance with the law as to elections, it could nevertheless also be said that it was so conducted as to be substantially in accordance with the election law, for the true result of a fair election can yet be ascertained by means of the judicial procedure provided by the Act.”
[41]On the facts of that case the Court found that, following the declaration of the result, there were serious breaches of the Rules in failing to seal the ballot papers and to keep sealed and separately packaged the ballot papers and rejected papers; and then in the carrying out of the unofficial recount. Nevertheless, having concluded, on the evidence, that the chances of the secrecy of the ballot having been invaded or of the ballot papers having been tampered with were so small as to be minimal, the election was held to have been conducted so as to be substantially in accordance with the law and the petition was rejected, despite the failure to count more than half the votes cast. Having regard to section 48 (1) there was held to be no basis upon which the court would be justified in declaring the election invalid.[42]This decision was followed by Moore-Bick and Steel JJ. in Harris v Gilmour, 11th December 2000, in which a number of breaches of the Rules occurred in the conduct of the count and in dealing with the ballot papers following the count. Moore-Bick J., giving the judgment of the Court, described them as “serious breaches of duty” on the part of the Deputy Returning Officer, but held nevertheless that they did not mean that the election must necessarily be declared invalid. It was possible on the evidence to ascertain with confidence exactly what happened to the ballot papers between the completion of the original count and the recount. After referring to section 48 of the RPA and to the decision in Marshall v Gibson the Court expressed itself satisfied that the election was conducted substantially in accordance with the law and that the breaches of the Rules did not in the event affect its result.[43]These cases clearly establish that the Courts will strive to uphold an election as being substantially in accordance with the law, even where there have been serious breaches of the Rules, or of the duties of the election officials, providing that the result of the election was unaffected by those breaches.[44]The availability of a proportionate, judicial remedy for rectifying the result and declaring the true result of an election, following scrutiny and a recount, prevents the necessity to choose between vitiating the entire election and allowing an erroneous result to stand. Thus, for the reasons given at paragraph 17 of the judgment in Marshall, it is inappropriate for the Court to declare that an election should be avoided where breaches of the Rules at the counting stage have not, in fact, affected the result.[45]We therefore take into account, in this regard, the agreed fact that the result of this election was not affected and the fact that the Petitioner has not suggested that the informal count was compromised as a result of breaches of security, and has not asked the Court to order a scrutiny and recount. He has not challenged the evidence in the statements filed that the procedure followed, after the oversight was discovered, ensured the security and integrity of the relevant ballot boxes before the informal count. As soon as the error was discovered the Returning Officer took steps immediately to inform the parties and to ensure that contemporaneous statements were made, providing a full account of the steps that were taken. None of this evidence is in dispute.[46]The Petitioner’s challenge cannot therefore succeed under section 48(1)(b).[47]In relation to section 48 (1)(a), Mr. Brodie for the Petitioner acknowledged that the authorities referred to above did not assist him. He sought, firstly, to distinguish them on their facts. He did so on the basis that, in this case, a larger number of votes and a greater percentage of the votes cast were not counted. This fact alone, he submitted, should lead the Court to hold that the election was not conducted substantially in accordance with the law, in circumstances where the informed member of the public would regard what happened as a travesty.[48]In our view this is an unattractive submission, which we cannot accept. Firstly, whilst the total number of votes not counted in Marshall (2403) was less than that in the present case (4169), numbers alone cannot decide the matter; and in any event, the percentage of the total votes cast was approximately 50% in each case, as Mr. Brodie accepted.[49]More significantly, save for submitting that the number of votes not counted in this case was “substantial”, Mr. Brodie was unable to say how and where, and by reference to which criteria, a court should draw what would inevitably be a wholly arbitrary line in deciding such cases. In an area of the law where consistency and certainty are the guiding principles in its application, we regard his submission as unsustainable.[50]Nor are we persuaded that the decision of the Court of Appeal in Gough v Local Sunday Newspapers (North) Ltd, and another [2003] 1 WLR 1836 or section 46 of the Electoral Administration Act 2006 now require a different approach to be taken in interpreting and applying the clear words of section 48 of the RPA.[51]Mr. Brodie seeks to rely on the fact that in Gough 86 postal ballot papers were discovered to have been uncounted after the result of a local government election had been declared. An informal recount, in the absence of the candidates, showed that the outcome of the election was unaffected. Mr. Brodie then drew our attention to the judgment of Simon Brown LJ at paragraph 31, referring to his unease at the thought of ballot papers being opened and examined in the absence of the candidates, and to his observation that “I for my part am inclined to rule that informal counts should not take place in any circumstances.”[52]However, the circumstances in which this case came to be decided were unusual. After the normal count the Returning Officer sought to correct the mistake by applying to the County Court pursuant to Rule 47 (1)(b) of the Local Elections (Principal Areas) Rules 1986 for an order seeking the inspection and counting of all the ballot papers originally counted, together with those accidentally not counted. Various objections were raised and no consensus was forthcoming before the District Judge. The application was subsequently discontinued but the election agent for the successful candidate then issued a press release to a newspaper published by the First Defendant alleging gross incompetence in pursuing the application under Rule 47 on the part of the Borough Solicitor, the Claimant Mr. Gough.[53]Thus the action brought was in libel. Gray J. concluded that the defamatory statements were justified in the circumstances. However, the Claimant’s appeal was allowed on the basis that Rule 47, on its proper construction, permitted an application to be made before any final decision was taken whether or not to present a Petition, if its purpose was to resolve a real doubt as to the correctness of the declared result.[54]Thus the issue in the case was the correct construction of Rule 47 and whether a Returning Officer could apply to the County Court before a decision was taken on presenting an Election Petition, when Rule 53 (1) enables the Court to make an order for the inspection of ballot papers “for the purposes of such a petition”.[55]The Court of Appeal was not therefore concerned with the situation which exists in the present case. The judgments say nothing about what happens when there has been a failure to count some of the votes cast and when, following an informal count in accepted conditions of secrecy and security, it is agreed that the result would have been the same.[56]We agree with Mr. Straker QC, for the Returning Officer, that the context for Simon Brown LJ’s observation, made obiter, at paragraph 31 was that if a Rule 47 application is an available way forward in the circumstances of that case, then “….there is less reason to hold an informal count than would otherwise be the case.” In that same paragraph we note that he also emphasised the need to secure the secrecy and integrity of the election process, which are accepted to have been secured in the present case.[57]In our view the approach taken by the Courts in both Marshall and Harris applies equally to the facts of this case and should therefore be followed.[58]Finally, section 46 of the 2006 Act makes provision for the correction of procedural errors by Returning Officers as follows:
“ Returning officers: correction of procedural errors 46. – (1) A returning officer for an election to which this section applies may take such steps as he thinks appropriate to remedy any act or omission on his part, or on the part of a relevant person, which – (a) arises in connection with any function the returning officer or relevant person has in relation to the election, and (b) is not in accordance with the rules or any other requirements applicable to the election. (2) But a returning officer may not under subsection (1) re-count the votes given at an election after the result has been declared. (3) This section applied to - (a) a parliamentary election; (b) a local government election in England and Wales (within the meaning of the 1983 Act).” (a) a parliamentary election; (b) a local government election in England and Wales (within the meaning of the 1983 Act).”
[59]In our judgment, the purpose of section 46 (1) is to enable Officers to take appropriate steps to correct any procedural errors and, as sub-section (6) makes clear, if he does so, to prevent him being prosecuted under the RPA for an act or omission in relation to the conduct of the election. Section 46(2) then qualifies section 46(1). The section does not therefore change the law and, as it seems to us, has no bearing on the question with which this Court is concerned, namely whether what has occurred means that the election can nevertheless be upheld pursuant to the provisions of section 48 RPA. We agree with Mr. Straker and Mr. Vassall-Adams, for the other Respondents, that in the light of the clear words of section 48 and the established jurisprudence, if Parliament had intended to provide that an informal count will always vitiate an election, even where the result is unaffected, it would have said so expressly. We do not consider that Parliament did so intend by the provisions contained in section 46 of the 2006 Act.[60]Further, Mr. Brodie’s comments as to the change in climate and growing concerns as to electoral fraud, which underpin the 2006 Act, are in our view misplaced in the present case, where there is not the slightest suggestion of fraud and in which it is agreed that the uncounted votes were simply overlooked.[61]In our judgment, the provisions of section 48 are clear and unambiguous; and the decided cases show that the courts should strive to give effect to the will of the electorate and to preserve an election, even if there have been significant breaches of the Rules or of the duties of the officials, provided that the outcome of the election has not been affected.[62]In the present case we do not consider that the informed member of the public would regard what happened as a travesty. There was no denial of the franchise. The Petitioner accepts that the Rules were all complied with, save in this one respect, and that the failure, through an oversight, to count the votes did not affect the result of the election.[63]Viewed as a whole we conclude that this election was so conducted as to be substantially in accordance with the law as to elections. We therefore reject the petition and answer the second question by declaring that this election should be confirmed.

Procedural irregularities – summary of submissions

[64]Irrespective of the merits of the petition and the substantive issue to be determined, the Respondents submit that there are procedural flaws in relation to the petition, which are not amenable to amendment, and thus, they argue, the petition should be struck out. There are two aspects to this challenge:- a) the failure of the petition to state the result of the election contrary to Rule 4 of the Election Petition Rules 2006 and b) the failure to serve the petition in accordance with Rule 6 of the Rules. However, in view of our decision on the substantive issue, we shall deal with these matters more shortly than would otherwise be the case.

Failure to state the result of the petition

[65]The Respondents make the following general point to underline their submissions. The Election Petition Rules 1960 are required strictly to be met. The rationale behind the strict procedure is that it stimulates the expeditious conduct of cases. It also reflects a feature of election law, which particularly affects Returning Officers, namely that the rules are so constructed and adherence to them so required as to remove or severely limit the scope for discretionary decisions, to avoid accusations of a lack of impartiality.[66]The Respondents submit that the petition fails to set out the result of the election, as required under section 128(3) of the RPA. A member of the public looking at the petition would not know the result of this election. Amendment is not permissible, as the narrow opportunity for amendment by the High Court under section 129(6) of the RPA is well past. The Petitioner’s position is not aided by reference to 19th century rules, which were discarded a long time ago.[67]The Petitioner submits, firstly, that because the only persons who can be Respondents to a petition are those who have been elected, the petition, by identifying the Respondents, has set out the result of the election, namely, the names of the winners. Thus it necessarily constitutes a statement of the result of the election in compliance with Rule 4(1). In the alternative, if the petition is defective in this regard, the court has power to amend where it would be just so to do. Relying on the Municipal Election Rules 1883, Election Petition Rules 1868 and the 1918 edition of Rogers on Elections, where amendment of petitions was contemplated, it is submitted that it would be surprising and regrettable if in today’s world there is greater formality than in the 19th century.[68]The Court must ask itself whether the statutory requirement is mandatory or directory. It is only in the rare circumstances of mandatory requirements that a failure to comply with a procedural requirement will be fatal to the proceedings. Reliance is placed on the words of Lord Woolf CJ in the case of R. V Secretary of State for the Home Department, ex. Parte Jeyeanthan [2000]1 WLR 3 354 @359B-C, as approved in the Attorney-General’s Reference ( no.3 of 1999) [2001 2 AC 91@117and the case of Soneji [2006] 1 A.C. 340. The case of Hussein v Khan [2006] EWHC 262, is cited as an example of the Court allowing amendment in relation to a election petition case. The Court should allow amendment unless there is good reason not to. Any amendment made today would cause no delay or prejudice. The cases in which petitions have been struck out are cases where non-compliance with the rules would have prevented the swift and fair trial of the petition. The defect complained of here, would not have such an effect.

Failure to serve the petition in accordance with Rule 6

[69]The Respondents’ case is that by Rule 6 of the Election Petition Rules 1960, service has to be effected in the manner in which a claim form is served. In Ali v. Haques [2006] All ER (D) 113,it was held that each of the Respondents, including the Returning Officer, was an individual. Moreover, regard had to be had to the relevant provisions of the Civil Procedure Rules to determine whether there had been valid service. Delivery to the Town Hall did not fulfil the requirements for service as the First Respondent is not a business.[70]In Ahmed v. Kennedy[2003] 1 WLR 120 the Court of Appeal made plain that there had to be strict compliance with Rule 6. It is mandatory. There is no power to extend time or to amend to effect service properly.[71]On behalf of the Petitioner, it is submitted that the First Respondent was correctly served under CPR 6.5 because a) the Returning Officer is carrying on a “business” at the Town Hall and thus it is an acceptable address for service under the CPR; b) the case of Ali v Haques is wrongly decided; c) the Returning Officer on his website provides the Town Hall as the address for himself and the Electoral Services; d) unlike all the candidate Respondents, the Returning Officer’s residential address is not published pursuant to Rule 9(2) of the Local Elections ( Principal Areas) (England and Wales) Rules 2006. It is contended that, the prevailing consideration ought to be that Parliament has enacted a procedure whereby elections can be challenged and unless there is going to be injustice or delay (which there would not be in this case) the remedy should not be denied on purely procedural grounds. Discussion and decision The legal framework

Discussion and decision

[72]The procedure for questioning a local election is set out in Part III of the RPA and the specific requirements for election petitions in the Election Petition Rules 1960 (“the Rules”).[73]Section 128(3) of the RPA provides that an election petition questioning a local election:
“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”
[74]Section 129(1) of the RPA provides that:
“a petition questioning an election under the local government Act shall be presented within 21 days after the day on which the election was held.”
[75]Section 129(6) of the RPA provides:
“An election petition presented within the time limited by subsection (1) or subsection (2) above may for the purpose of complaining of the election upon an allegation of an illegal practice, be amended with the leave of the High Court within the time within which a petition complaining of the election on the ground of that illegal practice could, under this section, be presented.”
[76]Rule 4(1) of the Election Petition Rules 1960 as relevant provides:
“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- (b) the date and the result of the election to which the petition relates, showing in the case of a parliamentary election the date on which the return was made to the Clerk of the Crown of the member declared to have been elected.”
[77]Rule 6 of the Election Petition Rules 1960 provides:
“(1) Within five days after giving the security the petitioner shall serve on the respondent within the meaning of s.121(1) or s.128(2) of the Act and on the Director of Public Prosecutions a notice of the presentation of the petition and 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.”
[78]As this petition complains of the conduct of the Returning Officer, he is deemed to be a Respondent: see ss.121(2) and 128(2) of the RPA.[79]CPR 6.5.(6) provides that where no solicitor is acting for a party to be served and a party has not given an address for service, the document must be sent, in the case of an individual, to his usual or last known residence.[80]Rule 19(1) of the Election Petition Rules 1960 provides:
“Any period of time prescribed by Rules 5, 6 and 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.”

Failure to set out the result of the election

[81]There is no dispute that the result of the election is not set out in the body of the Petition in the numbered paragraphs. The form in the Schedule referred to in Rule 4 is a specimen form which at paragraph 2 reads as follows:
“That the election was held on the day of 19 when E.F., G.H. and J.K were candidates, and on the day of 19, the Returning Officer returned E.F and G.H. to the Clerk of the Crown as being duly elected [or in the case of a local Government election] and E.F. and G.H. were declared to be duly elected.”
At the bottom of the form, there is provision for the naming of the parties on whom a copy of the petition is to be served.[82]This form in the Schedule sets out quite clearly the way in which a petition should be drawn. The variations or lacunae present in the petition in this case were not, in our view, those which could be said to be “as circumstances may require”. We have no hesitation in finding that there was a complete failure to set out, in the body of this petition, the result of the election as required by the Rules.

Failure to serve the petition

[83]This point can be taken quite shortly. We reject the Petitioner’s submissions that the First Respondent was a “business” for the purposes of service of the petition. That is to strain the meaning of the word “business” to a wholly unacceptable degree. For the reasons set out by the Respondents, we find that the Returning Officer is an individual who, in the circumstances of this case, if he was not to be served in person, was to be served at his home address. The power of the court to amend or extend time for service.[84]There has, prima facie, been a breach of Rules 4 and 6. The first issue is whether the two rules are mandatory. In our opinion, they are mandatory and they are therefore to be strictly followed. As already noted, reliance is placed by the Petitioner on an extract from the judgment of Lord Woolf CJ in Jeyeanathan @ page 359B-C in which he said: “Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal’s task will be to seek to do what is just in all the circumstances: see Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303, applied by the House of Lords in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182”.[85]However that has to be set in context against what Lord Woolf had said earlier at page 358 E-G:
“The issue is of general importance and has implications for the failure to observe procedural requirements outside the field of immigration. The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as “shall” or “must” is used.”
[86]It should be noted in any event, that in the first extract set out, Lord Woolf acknowledged that there would be rare occasions where, in exceptional cases, procedural requirements are such that departure from them could be fatal to the case. Legislation and rules governing the conduct of election petitions constitute one of those exceptions. Such is the import of the observations of Lord Justice Simon Brown in the case of Ahmed v Kennedy [2003] 1 WLR 1820,where Lord Woolf’s observations in Jeyeanathanwere considered. Thus, as result of the foregoing and because of the strict time limits imposed under the Act, we find that there is no power to amend or to extend time.[87]In the ordinary course of events, this petition would have been struck out. However, we have already rejected the petition in relation to the substantive issue and no further steps are necessary in this regard.