Gough v Local Sunday Newspapers (North) Ltd. & Anor

What should happen when, the result of an election having been declared by the returning officer, a parcel of ballot papers is discovered uncounted? Surprisingly, perhaps, the rules of election law, comprehensive though they might appear, provide no answer. Mr Gough, the borough solicitor to the Bedford Borough Council (“the Council”) faced this very problem following the council election on 4 May 2000 and dealt with it as he thought best. The respondents published statements condemning what he did as grossly incompetent. Gray J, sitting without a jury, on 1 March 2002 agreed with that assessment and found the defamatory statements substantially justified. Mr Gough now appeals to this court with the permission of Sedley LJ. The appeal is somewhat unusual. Although directed towards a judgment made in libel proceedings it turns principally upon disputed questions of election law and requires an assessment of legal professional competence. No issue arises as to defamation law.

With that briefest of introductions let me at once set out the background facts which for the most part I gratefully take from the judgment below, pausing only to note that whereas below there were three actions - the others being brought respectively by Mr Field, the Council’s chief executive and returning officer, and Mr Darkoh, a barrister employed in the Council’s legal department - we are concerned here only with Mr Gough’s appeal. Mr Field’s claim raised very different issues and succeeded below, the respondents’ appeal against that order (for which Sedley LJ also granted permission) having recently settled. Mr Darkoh’s claim was markedly similar to Mr Gough’s and similarly failed. He too obtained permission to appeal but chose then not to pursue it. I should note at this stage that Gray J below faced a formidable task. The three actions raised, as he observed, “a host of issues”, the statements of case running to over 460 pages. His reserved judgment, following a 12-day trial, extends to nearly 50 closely-typed pages. Right or wrong it is a tour de force. Only part of it, albeit a very important part, falls for consideration on this appeal.

The circumstances under which these publications came about were briefly as follows: the Borough Council, Parish and Urban Community Council elections in Bedford took place on 4 May 2000. The Borough Council election involved 18 wards (one of which was the Brickhill ward) and there were 55 candidates. The electorate totalled about 90,000, of whom 29,500 completed ballot papers for the Borough Council election. There were 92 polling stations, each of which returned two ballot boxes. Mr Field was, as stated, the returning officer. The person supervising the conduct of the election was Mr Graham Hayes, who had 30 years’ experience of dealing with elections. The number of staff required to run the elections was considerable, including 220 presiding officers and polling clerks and 160 deputy returning officers.

Counting of the votes took place at the Corn Exchange. After two recounts, the winner of the Brickhill ward election was declared to be the Conservative candidate, Ms Susan Evans. Her majority (on a return of some 2,500 votes) was only nine. Shortly after the declaration, it was discovered that an envelope containing the postal ballot papers for the Brickhill ward had been overlooked. The envelope contained 86 postal votes. Those who had cast those votes had therefore been disenfranchised. It was possible that the 86 uncounted votes would affect the outcome of the election for the Brickhill ward (although not the overall majority on the Council).

After consulting with Mr Gough and obtaining his approval, Mr Hayes decided to carry out an informal count of the votes in the absence of the candidates and their agents. Having carried out the count, Mr Hayes, on the instructions of Mr Field, informed each of the candidates of the result, which was that the outcome was unaffected but the Conservative majority was reduced from 9 to 6. The Council issued a press statement acknowledging that a mistake had been made but indicating that it did not appear to have affected the outcome of the election.

No reaction was immediately forthcoming from any of the candidates. But on 16 May, after a council meeting, Mr Stuart Green, the husband of the Liberal Democrat candidate and himself a councillor and the Leader of the Liberal Democrat Group, approached Mr Field and Mr Gough and told them that they believed it was possible for him as returning officer to make an application to the county court for all the Brickhill votes to be inspected and recounted. This appeared to both Mr Field and Mr Gough to be a quick, transparent and cost-effective way of correcting the mistake. Mr Field discussed the proposal with Mr Gough. It was agreed between them that Mr Gough would look into the position and, if he advised that an application could be made without incurring substantial costs, Mr Field would be prepared to pursue it. The next day Mr Green showed a photocopy of rule 47 of the Local Elections (Principal Areas) Rules, 1986 to Mr Gough. Having considered the wording of the rule, Mr Gough concluded that an application could be made. At his suggestion, the Liberal Democrat election agent wrote to Mr Field, telling him that he was considering the submission of an election petition and asking him to apply to the county court for an order to allow a recount to take place.

In the meantime Mr Gough had asked Mr Darkoh to research the proposed application and to draft the necessary documentation. Thereafter discussions as to the correct way to proceed took place from time to time between the two of them. The application was filed at court on 19 May.

The application was listed for hearing before District Judge Gill on 23 May. Mr Darkoh presented the application on behalf of the Council. The application was under rule 47(1)(b) and sought inspection and counting of all the votes originally counted together with those accidentally not counted. Mr Field, in his capacity as returning officer, was the applicant. Although the candidates and their agents had been notified in advance of the hearing (as were the public through a press release), they were not made respondents to the application. Amongst those present were Mr Hayes and Mr Lister (the second respondent). Mr Lister was the election agent for the successful Conservative candidate, Ms Evans.

On the first day of the hearing the Judge raised a number of questions, both procedural and substantive, about the application. Mr Lister raised objections to the application. At the instigation of the Judge discussions took place to see whether all candidates would agree that the postal votes alone should be recounted. In the hope that such consent would be forthcoming the application was adjourned until the following day. But the candidates did not agree and on 24 May the Judge again adjourned the application, partly because of the lack of consensus and partly because he had decided that he could not deal with the application because he was himself a member of the Liberal Democrat party. The Council subsequently discontinued the application. No election petition was in the event presented. The time for such a petition expired on 26 May.

I come to the publications complained of. There are two: a press release issued by Mr Lister on 25 May 2000 and an article published by the first respondent in their Bedfordshire on Sunday (“BoS”) newspaper on 28 May 2000.

The press release

The complaint is limited to the following parts of the article:

It is convenient at this early stage to record the judge’s findings as to the meaning of the publications complained of and his overall conclusion on the issue of justification.

Meaning

The press release

The newspaper article

Justification

As will appear, Mr Gough’s “conduct in the several respects” which the judge thought plainly incompetent related to the way he had sought to solve the problem of the uncounted postal votes (a problem, all agreed, for which he himself bore no responsibility). The judge’s decision, it is plain, centred upon the conclusions he reached on a number of contentious issues of electoral law and procedure. I now turn, therefore, to these. Their importance is, of course, considerable, extending well beyond the outcome of this particular appeal. We are, in short, engaged here in determining what in future should happen when a lapse of this sort occurs, as from time to time it does, in the conduct of an election count.

The main statute which governs elections is the Representation of the People Act 1983 (“the 1983 Act”). It is directed principally at ensuring the integrity and secrecy of the ballot. Nothing should be done to or with ballot papers except under the strict procedures provided in the statute or by order of the court. Once the 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 (see s127 of the 1983 Act) or by way of case stated to the High Court (see s146). By s48(1) of the Act, an election is not invalidated because of any act or omission of the returning officer or others in breach of their official duty if (a) the election was conducted so as to be substantially in accordance with the law and (b) the act or omission did not affect the result. Section 48(2) provides:

The rules governing local elections, made under s36(2) of the 1983 Act, are The Local Elections (Principal Areas) Rules 1986 (“the Rules”). Rule 38 requires that the returning officer make arrangements for counting the votes in the presence of the counting agents and provides who else may be present at the count. Rule 39 deals with the procedure to be followed at the count. I should set out Rule 39(2):

Part V of the Rules is concerned with the disposal of documents following the declaration of an election result. Rule 45(1) provides that on the completion of the counting the returning officer shall seal up in separate packets the counted and rejected ballot papers, including ballot papers rejected in part. Rule 46(1) requires that the returning officer shall then forward to the proper officer of the Council (often, as in this case, the returning officer himself) certain specified documents including: “(a) the packets of ballot papers in his possession”; “(b) the ballot paper accounts and the statement of rejected ballot papers and of the result of the verification of the ballot paper accounts”; and “(d) the packets of counterfoils and certificates as to employment on duty on the day of the poll”.

Rule 47 lies at the heart of this appeal and much of it I must set out verbatim:

As Bell J pointed out in the course of argument, rule 47(2) appears to permit the election court (as opposed to the county court) to inspect only “counted ballot papers” and not, therefore, “rejected ballot papers, including ballot papers rejected in part”. Despite rule 47(8), however, it is not, I think, disputed that the election court has full powers of inspection.

As will readily be apparent, no rule provides for the problem which arises in a case like the present where a whole parcel of votes is neither rejected nor counted, but is simply overlooked. The Rules do not even provide for the custody of such uncounted votes, let alone what is to be done about them. The appellant’s contention is that it was both sensible and permissible to do what was done here: first to carry out an informal count of the overlooked votes (in the absence of the candidates and their agents lest, the postal votes being unmixed, their scrutiny would imperil the secrecy of the ballot) to see what effect they would apparently have on the result and then, when that appeared to leave the successful candidate with the yet narrower majority of six, to make a rule 47 application to the County Court with a view to a fresh counting of the postal votes, this time mixed with already counted votes, so that they could be properly scrutinised by the candidates and their agents. Rule 47, of course, was required, not for the court’s authority to count the overlooked postal votes (to which the rule had no application) but rather to permit the already counted votes to be inspected for mixing purposes. Rule 39(2) similarly had no direct application, but its spirit and underlying rationale clearly required such mixing. The informal count itself, of course, had involved no scrutiny and no opportunity, therefore, for the candidates to ensure that the ballot papers were duly stamped and perforated and disclosed no ambiguity of voting intention.

The respondents’ rival contention is that neither the initial informal count nor the subsequent rule 47 application were permissible. The only lawful course, they submit, was for Mr Field, as both the returning officer and the Council’s proper officer, to have admitted that a mistake had been made and that 86 postal ballot papers had been overlooked, and then to take those ballot papers into his custody, leaving it to an unsuccessful candidate (or a group of voters) to present an election petition questioning the result. Such a petitioner would, of course, have had to put up £2,500 by way of security for costs, and would have had to join the successful candidate and the returning officer as respondents. Moreover, unless and until the High Court ordered a recount, he would have had no inkling as to what the eventual outcome would be.

I turn now to consider the individual issues arising from these rival contentions, noting, however, as I do so that there is some inter-relationship between them. If, for example, an informal count were to be regarded as impermissible, the more desirable would it seem for a rule 47 application to be available to discover whether in fact a sound basis exists for an election petition. Similarly, assuming that rule 47 does indeed provide a satisfactory means of counting hitherto uncounted ballot papers, it would seem appropriate to invoke it in the most expeditious and inexpensive way possible.

The only academic text offering any view upon the propriety of an informal count is Parker’s Law and Conduct of Elections, edited (as too is the relevant section of Halsbury’s Laws) by Mr Richard Clayton, a Home Office legal advisor. Parker at paragraph 17.43 (1999 issue) says:

Parker then refers to a brief news report in The Times of a Hertfordshire local election in 1974 in which the initially unsuccessful candidate was eventually declared elected following the discovery of overlooked ballot papers and a subsequent recount. It is unclear, however, whether that later recount was conducted informally or, following a “blind” election petition, pursuant to an election court order.

Two other cases bear on this issue: Macmanomy -v- Westley (the Walsall case) before Saville J in 1986, and Marshall -v- Gibson (the St Cuthbert’s Ward case) before Colman and Bell JJ in 1995. Neither is reported (indeed, in Walsall we have merely three court documents and two court orders) yet both were extensively discussed before us and need to be explained.

Walsall concerned an election petition following the discovery of an overlooked ballot box containing 371 votes. When, some days after the election was declared, the matter first came to light, the returning officer invited the candidates to agree to the box being opened and the votes counted. The unsuccessful candidate, Mr Macmanomy, who had apparently been defeated by 198 votes, refused to agree and instead petitioned for the election to be declared void. Amongst his reasons for refusing was that the secrecy of the ballot would be breached since:

The returning officer, having in the event undertaken not to open the box on condition that Mr Macmanomy immediately petitioned the court, deposed to the court:

Saville J initially ordered only the opening and inspection of the overlooked ballot box and the counting of the papers in the presence of the parties, each of them to “sign a declaration of secrecy and that they do not divulge or communicate in any way the information disclosed” except to the court. Once, however, Mr Westley’s majority was found to be reduced to 134, Saville J ordered by consent that there should be a recount of all the ballot papers cast in the ward election, the parties to be bound by the result and the candidate with the highest number of votes to be publicly declared elected. Ultimately it appears that Mr Westley again succeeded, but this time by a further reduced majority of 35 (on a total poll of some 3,500).

St Cuthbert’s Ward too concerned an election petition, on this occasion upon the contention of an unsuccessful candidate that a substantial number of the votes cast had not been counted. The petition there, however, unlike that in Walsall, followed on from an informal recount organised by the deputy returning officer which, as in the present case, was carried out in the absence of the candidates and their agents. When the election court itself ordered a scrutiny and count it appeared that barely more than half of the votes cast had been counted. At the eventual hearing of the petition the Court said this:

In those circumstances the Court declined to declare the election invalid but, in accordance with its findings on the number of votes validly cast for each candidate, declared one of the successful candidates not validly elected and another candidate duly elected in his place.

Mr Moloney QC submits that in the present case, unlike the position in St Cuthbert’s Ward, the informal count involved no breaches of rules 45 and 46. All the papers there had been sealed up as, purportedly, counted ballot papers and all had been given into the custody of the proper officer. Not so here. On the contrary, the postal ballot papers here were quite separate, neither counted nor rejected, and were not subject, therefore, to the provisions of rules 45 and 46.

Accepting this submission though I do, I nevertheless feel uneasy at the thought of ballot papers being opened and examined in the absence of the candidates, even assuming they have given their consent. Mr Macmanomy’s reasoned objection in the Walsall case (see paragraph 25 above) well illustrates the sort of problem to which an informal count can give rise and why the secrecy and integrity of the electoral process must always be secured. Even though generally, no doubt, such problems will not arise - and, indeed, even had the uncounted ballot box in Walsall not been overlooked but instead been mixed with another box, the same embarrassment could still have resulted (had no votes been cast for the Communists in either box) - I for my part am inclined to rule that informal counts should not take place in any circumstances. If, moreover, a rule 47 application is an available way forward in this situation, there is less reason to hold an informal count than would otherwise be the case. To this question, therefore, I now turn.

The central question arising under rule 47 is the jurisdictional question as to whether the court has power to make an order under the rule (unless of course “for the purpose of instituting or maintaining a prosecution for an offence in relation to ballot papers”) prior to the presentation of an election petition. When rule 47(1) speaks of the court being satisfied that an order is required “for the purpose of an election petition”, is that necessarily a reference to a petition already in being or is it referable also (perhaps even exclusively) to a contemplated petition - not least, as here, so as to discover whether such a petition would be worthwhile?

Again, let me start with the legal commentaries. Parker at paragraph 18.18, under the rubric Circumstances when Inspection permitted, says this:

The relevant news items in The Times both on 17 and 18 May 1968 make it tolerably plain that the Hackney returning officer had himself made a rule 47 application to the county court to ascertain the accurate figures, that within 24 hours the court had ordered an immediate recount in the two wards, that although these revealed a substantial error they did not affect the results, and that accordingly no election petition was presented. Parker does not, however, and this is really most surprising, mention the one reported authority most closely in point, Re Lancashire Darwen Division, Case (1885) 2 TLR 220 (“Darwen”). He mentions only McWhirter -v- Platten [1970] 1 QB 508, a case decided under the criminal limb of the rule.

Volume 15 of Halsbury’s Laws at paragraph 841, however, does refer to Darwen in the footnotes to the following passage:

Footnote 14 states:

I must consider Darwen in a little detail. The Divisional Court (Denman, Field and Day JJ) was there concerned with an application under paragraph 40 of Schedule 1 to the Ballot Act 1872 (the legislative ancestor of rule 47 but only with regard to the inspection of rejected, not counted, ballot papers) for the recount of a closely fought Parliamentary election. The application was advanced on the footing that “if the result of the inspection should be to sustain the suspicion of miscounting a petition would be presented” - see the report of the argument. The application was refused. Puzzlingly, although only paragraph 40 was involved, the applicant was seeking inspection also of the counted ballot papers. The following passages in the judgments (reported in indirect speech) are relevant:

Before considering the arguments under this head it is convenient to turn next to what, apart from the Hackney case (referred to in Parker), is the only post-Darwen instance discovered by counsel of a rule 47 application being made in a civil context: the Three Rivers District Council case in 1991. This case too is unreported but we have both the final judgment of the election court (Alliott and Wright JJ) given on 26 July 1991 and, more directly relevant for present purposes, a number of court documents in relation to a rule 47(1)(b) application made in the Watford County Court six days after the May 1991 election. The application was made by Mr Trevett, the agent for one of the unsuccessful candidates, Mr Cavill, and was served solely upon the council’s proper officer as respondent. Mr Trevett deposed that more than 600 ballot papers (representing some 1,200 votes) had been included at the verification stage but not in the final count. Judge Goldstone on 10 May made a consent order for the production of “all the counted ballot papers and those eligible to be counted” and for these to be inspected that same day “by standard counting procedure”, the various candidates, agents and normal election officials being permitted to attend. Following that inspection Mr Cavill on 22 May presented an election petition which referred to Judge Goldstone’s order of 10 May and the result of the re-count, namely a tie. On 28 June the election court ordered a formal recount by the Chief Master. That took place on 2 July and produced the same result as the count on 10 May. By 26 July, however, when the election court sat, it had been discovered that ten ballot papers were unstamped and on this account the election court declared the election void and ordered a fresh election to be held. The election court’s judgment recorded the proceedings before Judge Goldstone without commenting on their legitimacy. So much for the authorities. They provide, alas, but slender assistance.

The judge below expressed his conclusion on the jurisdictional issue as follows:

Mr Browne QC for the respondents seeks to uphold that view. He argues that the court should set its face against essentially exploratory applications such as that made in Darwen and, indeed, in the present case, applications which cast doubt on the result but avoid the safeguards governing the presentation of election petitions. The applications made to the County Court in the Hackney case and in Three Rivers were, he submits, misconceived and the courts which granted them acted beyond their jurisdiction. He points out that neither in the Walsall case nor in St Cuthbert’s Ward were rule 47 applications made nor was there any suggestion by the election court judges that they could have been. Mr Browne relies on my own recently expressed view in Ullah -v- Pagel [2002] EWCA Civ 1793 that the 1983 Act and the rules made under it “together comprise a discrete and purpose-built statutory scheme which covers the High Court’s role in the procedure [for the presentation of election petitions] and that where the legislation intends to provide for the softening of any mandatory requirement it expressly says so …”. He urges us to accept the views expressed in Darwen although, as he acknowledges, the Divisional Court there in the event left the jurisdictional point undecided.

Powerful though these submissions are, in my judgment they are outweighed by the countervailing arguments advanced by Mr Moloney QC for the appellant. Darwen, let it be clear, was a very different case on its facts from the present and, indeed, from Three Rivers. As is not unusually the case in a closely contested election, in Darwen there were a number of disputed ballot papers and the disappointed candidate was simply applying for a recount in the hope of reversing the result. He could point to nothing by way of error save only a discrepancy of one vote between the voting papers found and the votes counted and his disagreement with the returning officer’s judgment on the disputed papers. Whereas truly that was a “fishing application”, the position in a case like this is very different (and would be still more obviously so had no informal count taken place). By the same token that, as Gray J pointed out, “it is desirable for the police to have the power to obtain evidence of electoral crime”, so too it seems to me that on occasions it will be desirable for an unsuccessful candidate (or indeed, group of voters), following an admitted error in the counting process, to be able to resort to a comparatively quick and cheap means of establishing whether it is worthwhile to present a petition questioning the election. Nor does this seem to me to conflict with the view I expressed in Ullah -v- Pagel; on the contrary, such an approach is calculated rather to promote certainty and to resolve more speedily than most petitions any doubts surrounding the legitimacy of the election - see paragraph 40 of my judgment there.

Nor am I impressed by the distinction drawn in the rule between the purposes respectively “of instituting or maintaining a prosecution” and “of an election petition”, a point, indeed, not even touched on in either the argument or the judgments in Darwen. In any event, as Mr Moloney points out, if the draftsman did indeed intend to make a distinction, he may well have been intending the rule to apply rather to the institution than to the maintenance of election petitions. Certainly the provision would then appear to have greater value. Whereas after a prosecution is brought the criminal court would have no power to order inspection of election documents, once a petition has been brought the election court manifestly has such power. Why, therefore, duplicate it with a parallel power in the county court? Whatever the position as to that, however, I would construe the rule to permit an application to be made before any final decision is taken whether or not to present an election petition provided only and always that (a) its purpose is to resolve a real doubt as to the correctness of the declared result and (b) there is a real likelihood that, were the inspection to show the result incorrect, an election petition would follow. On those assumptions it seems to me that the court can properly be “satisfied … that the order is required … for the purpose of an election petition”.

For my part I regard the doubts about jurisdiction expressed by the Divisional Court in Darwen as misplaced. Of course the court will set its face against fishing applications by disappointed candidates. Darwen itself was plainly such a case and the application there was plainly rightly refused. But in a case like this - or, indeed, the Hackney case, or Walsall, or Three Rivers or St Cuthbert’s Ward - there can be no question of the application being properly characterised as “fishing”. On the contrary, whenever a ballot box or parcel of postal votes is simply overlooked, or where (as in Three Rivers or St Cuthbert’s Ward) it appears clear that a substantial number of votes has for whatever reason not been counted, it seems to me that there exists an ample evidential basis for a rule 47 application. I do not say, however, that an application should therefore be made in every such case. If the uncounted votes could not reasonably be expected to affect the election result, there would be no real likelihood of an election petition being presented, whatever the outcome of a rule 47 production and inspection order. In those circumstances the application could not properly be regarded as being made for the purposes of a petition.

One thought and one alone has given me some concern as to the use of rule 47which I propose: the thought that a recount pursuant to such an application could point to the wrong candidate having been elected and yet that outcome not lead to an election petition by which alone the mistake could be corrected. Could that be thought in some way to offend the spirit of s48(2) of the 1983 Act? In practice, however, that seems to me an unlikely scenario. Altogether more likely is it that, unless rule 47 can be utilised as I propose, overlooked votes will simply remain uncounted and errors will thereby be left uncorrected. Thus would the democratic will be thwarted because the unsuccessful candidate will simply not be prepared to petition “blind”. As already pointed out, the petitioner must at once give security for costs (routinely set at the maximum figure of £2,500 as we learned in Ullah -v- Pagel) and serve his proceedings on the returning officer and the successful candidate. The proceedings cannot be withdrawn without leave - s147. The petition is, of course, in the High Court and will almost inevitably involve the instruction of counsel, often specialist counsel. Paragraph (h) of Mr Lister’s press release (see paragraph 10 above) asserted: “If an election petition is launched the taxpayers of Bedford will have to pay a minimum of £500,000.” Paragraph (t) spoke of “hundreds of thousands of pound”. That, of course, is a gross exaggeration. Clearly, however, the costs of a rule 47 application will be substantially less than those of an election petition. How much less, of course, will depend not least upon who are made party to the application. It is to that question that I now turn.

In the present case, as stated, the returning officer was himself the applicant; there were no respondents although the candidates were notified of the hearing. Is this permissible? The judge below held not.

As to who should be applicant the judge concluded that the returning officer had no locus standi to make the application:

As to the “parties to be joined and/or served” the judge said:

Once again I find myself in respectful disagreement with the judge. Given the essential purpose of such an application, I see no reason why it should not be made as it was here (and as it appears to have been made too in the Hackney case; in Three Rivers, of course, the agent for the unsuccessful candidate was the applicant, the proper officer the respondent; the successful candidate, however, was not served). Clearly an ex parte application of this nature is the quickest and cheapest way of obtaining a recount. What objection is there to it?

The respondents rely before us as they relied below upon Absalom -v- Gillett [1995] 2 All ER 661 where Laws J in the Divisional Court, deciding who must be made respondents to an election petition, said at pp668 - 669:

To my mind, however, an election petition is one thing, a rule 47 application quite another. Whereas in petition proceedings the successful candidate is indeed at risk of losing his seat, on a rule 47 application he can lose nothing (unless it be the prospect of keeping everyone in the dark). To my mind rule 47 can be used in this way analogously to an application for pre-action discovery against someone it is not proposed to join as a party or an application for a subpoena duces tecum, neither of which require service upon the opposing party. No doubt it is appropriate, as was done here, to give notice to all interested parties so they have the opportunity to attend the hearing and, if they wish, to apply to be joined. Beyond that, however, I do not think it necessary to go.

Similarly I see no objection to the returning officer himself making the application. He is, of course, doing so not with a view to advantaging one candidate or political party at the expense of another, but rather to correct, so far as he can, an obvious error in the electoral process for which he himself bears responsibility. The analogy in this regard seems to me to be with the coroner in In re Rapier (Deceased) [1988] 1 QB 26, who himself initiated proceedings both under the Coroners’ Act and for judicial review to quash the inquisition over which he had presided in the light of new evidence which had later come to light. There was no respondent to the application, merely counsel appointed as amicus curiae. The Divisional Court (Woolf LJ and myself) granted his application, I myself suggesting that amongst the “compelling grounds for ordering a fresh inquest”, were that “the coroner himself believes it to be necessary and has indeed initiated the application”.

It is time now to pass from consideration of the true construction and application of rule 47 and the role it can play where things have gone wrong in the electoral process to the effect these conclusions have upon the present appeal. I propose to take this part of the case altogether more shortly. First, however, I must set out the most directly relevant paragraphs in the judgment below:

I have already set out in paragraph 12 above the judge’s overall conclusion on the issue of justification. It will by now be apparent that it is not a conclusion I myself feel able to share. The judge thought that Mr Gough reached the wrong answers on all the important issues of election law and practice raised in the case. Even then, of course, as he rightly accepted in paragraph 142, it did not necessarily follow that Mr Gough was negligent. I, however, have found Mr Gough to have reached the right answers on most of the important issues and certainly on those concerning the rule 47 application - that, rather than the informal count, being the conduct criticised by the respondents (see the publications complained of and the judge’s findings on meaning). Mr Browne sought to argue that by the same token that Mr Gough could have been found wrong but competent, so too he could be found right but incompetent. He goes so far as to submit, indeed, that the judge would have found him incompetent whatever view were properly taken of the legal issues. In support of this proposition Mr Browne refers us to the terms in which Gray J refused permission to appeal:

I utterly reject this argument. It seems to me inconceivable that the judge would have found the appellant’s conduct to have fallen “some considerable way short of what is to be expected of a competent solicitor” (which I take to mean guilty of the very great degree of incompetence alleged against him) had he taken the same view of the electoral legal issues as I do. Certainly in those circumstances it would seem to me quite impermissible to have done so. The judge’s view, which I share, that it was wrong to have carried out the informal count (see paragraph 140) and that Mr Gough should have told Mr Darkoh to raise with the judge the jurisdictional doubts as to the rule 47 application (see paragraph 142), to my mind provide a wholly insufficient basis for a finding of incompetence, let alone very great incompetence. Given, indeed, the difficulties in this area of the law, I am far from sure that it would be right to uphold this finding of justification even had Mr Gough, as the judge thought, reached all the wrong answers. The judge’s conclusion, for example, in paragraph 142 that “the point was essentially one of construction … a competent solicitor would have concluded that the application could not have been made in the absence of a petition”, I find surprising. So too his view in paragraph 143 that “there was nothing to be achieved by an application under rule 47”. It is unnecessary, however, to consider this question further: having regard to my conclusions on the legal issues arising, I would hold that on no view can the finding of justification be upheld. Whatever criticisms can be made of Mr Gough’s handling of the difficult situation in which he found himself, they cannot in my judgment warrant a finding of incompetence, still less of very great incompetence.

That conclusion makes it unnecessary save in relation to damages to consider Mr Browne’s final submissions, pursuant to a respondent’s notice, questioning the judge’s findings on meaning, particularly with regard to the newspaper article. Mr Browne submits that, even supposing it were right to regard the press release as alleging “very great” incompetence rather than mere incompetence (as to which he says that the reference to “gross maladministration” in paragraph (u) would have been read simply as exemplifying the “incompetence” referred to earlier in the paragraph rather than inflating its defamatory meaning), it would not be right to read the BoS article in the same way: the article used the language neither of incompetence nor of gross maladministration.

In my judgment there is nothing in these arguments. The article, like the press release, referred to Mr Lister being “horrified” and intent on reporting the matter to the District Auditor, these being the considerations which, as explained in paragraph 42 of his judgment, led the judge to conclude that readers would understand the degree of incompetence to have been very great. As Sir Thomas Bingham MR said in Skuse -v- Granada Television Limited [1996] EMLR 278, 287, this court “should not disturb [a judge’s conclusion on fact] unless we are quite satisfied he was wrong”. On the question of meaning I do not think the judge was wrong; I am certainly not quite satisfied he was.

Mr Browne’s final submission on meaning is that the judge should have treated Mr Lister’s characterisation of the incompetence as “very great” as a value judgment, a comment rather than a defamatory statement of fact. Not merely, however, was this submission not encompassed within the respondent’s notice or skeleton argument but it is to my mind clearly unsustainable. It might as well be said that the description of someone as incompetent is itself an expression of opinion rather than a statement of fact. Someone may be asserted to be incompetent in varying degrees. In one class of manslaughter case juries are directed to decide whether the defendant’s conduct was so grossly negligent as to attract criminal liability. Their conclusion is one of fact, not comment.

It follows from all this that I for my part would allow this appeal. I would reverse the judge’s holding on justification, set aside his order and enter judgment for the appellant for damages to be assessed. The parties agree that in those circumstances the assessment should be by this court (this may not otherwise be possible, though see CPR Part 52.10(2)(a)). Quite how we proceed with regard to that assessment we shall decide when these judgments are handed down.

I agree entirely with the judgment of my Lord, Simon Brown LJ, including his view that informal counts, though not expressly forbidden by the Rules, should not be employed. The conclusion which I have reached on the function of rule 47 in cases such as the present makes it in any event far less necessary for a returning officer to engage in such an informal count.

The wording of rule 47(1) with its reference to an order being required “for the purpose of an election petition” is not such as to restrict the use of rule 47 applications to cases where an election petition has already been lodged. That is not what the subsection says. Nor is there any practical justification for such a restriction. Indeed, all the practical considerations point to a more generous interpretation which would allow the use of this local and relatively inexpensive process where an election petition was being contemplated because ballot papers had been overlooked in the count.

The Darwen case was one where the court was anxious to avoid pure “fishing expeditions” by those dissatisfied with the declared result. That anxiety is, of course, a perfectly proper one, but the county court has the power to refuse rule 47 applications in such cases, and that is an adequate safeguard. The anxiety does not justify depriving the county court of jurisdiction to hear such an application in the absence of an election petition, which is the interpretation urged upon us by the respondents. I too would emphasise that the court in the Darwen case expressly refrained from deciding that an election petition was a necessary pre-condition of the making of such an application, as the passages quoted by Simon Brown LJ make clear.

It is true that Mr Gough, faced with the problem of the uncounted ballot papers, could have sought the advice of counsel, preferably counsel specialising in election law, or could have carried out more legal research himself. But, in considering whether his actions amounted to incompetence or “very great incompetence”, regard must be had to the situation in which he found himself. He was under pressure of time because of the tight time limits within which any dissatisfied party could lodge an election petition. Taking counsel’s advice would itself have cost “the taxpayers of Bedford” (see the press release) a certain amount of money, as well as taking time. He decided, after discussing the matter with Mr Darkoh, to make an ex parte application to the county court, using lawyers already in the employment of the Borough Council. On the face of it, this was likely to be a relatively inexpensive process, and the decision to commence it is not to be judged in the same light as one would a decision to embark on some lengthy and expensive contested litigation.

As the judge below noted at paragraph 142, the question of whether the rule 47 process could be used in these circumstances was essentially one of construction. Not only did Mr Gough in my judgment give to the question a degree of attention adequate in the circumstances which I have just described, he also arrived at the correct construction of rule 47. In that situation, the allegation against him of incompetence cannot be held to have been justified. It was not substantially true, and I too would allow this appeal.

For the reasons given by my Lords Lord Justice Simon Brown and Lord Justice Keene, I too would allow this appeal.