Graham Harry Moore v Royal Mail Group Limited & Ors

What is at issue in this appeal is whether an election petition presented by Mr Graham Moore should be dismissed because it failed to give information required by the Election Petition Rules 1960 (“the 1960 Rules”) and/or was not duly served. The Divisional Court (Yip and Butcher JJ) concluded that the trial of the petition should proceed, but that decision is now challenged in this Court by Ms Sarah Pochin (the candidate declared to have been elected) and Mr Stephen Young (the returning officer).

The petition relates to the Parliamentary by-election which was held for the Runcorn and Helsby constituency on 1 May 2025. Ms Pochin, the Reform UK candidate, was declared to have been elected, having gained six more votes than the Labour Party candidate. Mr Moore, who stood as the English Constitution Party candidate, was reported as having gained 50 votes.

On 15 May 2025, Mr Moore presented a petition seeking to have the result of the by-election declared void and a recount ordered. The petition stated, among other things, that the by-election was held on 1 May, that the result was declared on 2 May, that Ms Pochin was the elected candidate and that he himself was declared as having received 50 votes. The petition further included a link to the results as published by Halton Borough Council.

The respondents to the petition were named as Ms Emma Gilthorpe, who was the chief executive officer of Royal Mail Group Limited (“Royal Mail”) at the time of the by-election; Mr Mark Roberts, the chief constable of Cheshire Constabulary; Ms Pochin; and Mr Young. Royal Mail was subsequently substituted for Ms Gilthorpe as the first respondent.

Also on 15 May 2025, Master Eastman fixed the security for costs required by section 136(1) of the Representation of the People Act 1983 (“the 1983 Act”) at £5,000 and ordered that sum to be paid into Court within three working days. Mr Moore paid £5,000 into Court that same day.

On 16 May 2025, Mr Moore sent an email to, among others, Ms Pochin in which he said:

“The election petition was issued at the high court yesterday 15 05 2025. The Bundle has been sent today to the Stephen Young Returning officer, Sarah Pochin MP, Mark Roberts Head of Cheshire Police, Emma Gilthorpe Head of Royal Mail and the DPP by recorded next day delivery.”

It appears that the petition was attached to the email and that the email to Ms Pochin was opened at 23.50 on 16 May.

Mr Moore also sent each respondent a copy of the petition (together with copies of Master Eastman’s order and the cheque by which he had deposited the £5,000) in the post, by Royal Mail Special Delivery. The letter to Ms Pochin was addressed to her at the House of Commons and a Royal Mail “Track your Item” document indicates that it was delivered on 19 May 2025. Ms Pochin has herself explained in a witness statement:

“On or around 20 May 2025, I became aware that a bundle of documents had been sent to my parliamentary address at the House of Commons, London, SW1A 0AA and were provided to me by the security at the House of Commons. I understand these documents were an election petition.”

The Divisional Court accordingly concluded that Ms Pochin had personally received a hard copy of the petition by 20 May 2025.

All the respondents applied for the petition to be dismissed. Ms Pochin did so by an application notice dated 10 June 2025 on the ground that the petition had not been validly served on her. By his application notice, dated 20 June, Mr Young also relied on failure to effect due service on Ms Pochin but further contended that the petition should be dismissed because, among other things, it did not state the date on which the return was made to the Clerk of the Crown.

Both applications came before the Divisional Court on 25 July 2025. The Court informed the parties on the day that the petition would be dismissed as against Royal Mail and Mr Roberts but it reserved judgment as regards Ms Pochin and Mr Young. In a judgment dated 11 September 2025, the Court explained that it had decided that it should refuse the applications of Ms Pochin and Mr Young and that the trial of the petition should go ahead.

Ms Pochin and Mr Young appeal to this Court. By an order dated 12 September 2025, the Divisional Court granted special leave to appeal limited to the following points of law:

In the circumstances, we are not concerned with (and have heard no submissions on) the merits of the petition. Nor is there even any issue before us as to whether the Divisional Court was right to consider it appropriate, on the facts, to exercise the power which it considered itself to have under CPR rule 6.15. The matters we have to decide are limited to those for which Ms Pochin and Mr Young obtained special leave. As regards CPR rule 6.15, therefore, the question is whether that rule operates to give the Court power to order steps taken in the past to be good service.

Part III of the 1983 Act comprises sections 120-186. The heading to Part III, “Legal proceedings”, indicates its subject matter.

Section 120(1) of the 1983 Act provides that no Parliamentary election or return to Parliament “shall be questioned except by a petition complaining of an undue election or undue return (‘a parliamentary election petition’) presented in accordance with this Part of this Act”. By section 121(1), a Parliamentary election petition may be presented by “a person who voted as an elector at the election or who had a right so to vote”, “a person claiming to have had a right to be elected or returned at the election” or “a person alleging himself to have been a candidate at the election”. Section 121 further states as follows:

“(3)

The petition shall be in the prescribed form, state the prescribed matters and be signed by the petitioner, or all the petitioners if more than one, and shall be presented to the High Court, or to the Court of Session, or to the High Court of Northern Ireland, depending on whether the constituency to which it relates is in England and Wales, or Scotland or Northern Ireland.

(4)

The petition shall be presented by delivering it to the prescribed officer or otherwise dealing with it in the prescribed manner; and the prescribed officer shall send a copy of it to the returning officer of the constituency to which the petition relates, who shall forthwith publish it in that constituency.

(5)

The petition shall be served in such manner as may be prescribed.”

Sections 122 and 129 of the 1983 Act set time limits within which election petitions must be presented. As regards Parliamentary election petitions, section 122(1) provides:

“Subject to the provisions of this section, a parliamentary election petition shall be presented within 21 days after the return has been made to the Clerk of the Crown, or to the Clerk of the Crown for Northern Ireland, as the case may be, of the member to whose election the petition relates.”

The counterpart in respect of local elections, section 129(1), reads:

“Subject to the provisions of this section, 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.”

Sections 136-157 of the 1983 Act have the heading “Procedure on all election petitions”. The first of these provisions, section 136, provides for the petitioner to give security for costs “[a]t the time of presenting an election petition or within three days afterwards”. In the case of a Parliamentary election petition, the security is to be of “such amount not exceeding £5,000 as the High Court or a judge of the High Court, directs on an application made by the petitioner” and is to be “given in the prescribed manner by recognisance entered into by any number of sureties not exceeding four or by a deposit of money, or partly in one way and partly in the other”: section 136(2). By section 136(3), the petitioner is “[w]ithin the prescribed time after giving the security” to serve on the respondent “in the prescribed manner” (a) a notice of the presentation of the petition and of the amount and nature of the security and (b) a copy of the petition. “Within a further prescribed time, the respondent may object in writing to any recognisance on the ground that any surety is insufficient or is dead or cannot be found or ascertained for want of a sufficient description in the recognisance, or that a person named in the recognisance has not duly acknowledged the recognisance”: see section 136(4).

Section 137(1) of the 1983 provides for a petition to be “at issue” from the “relevant time”. Section 137(2) explains that “relevant time” means:

“(a)

where the petitioner gives the security for costs required by section 136 above by a deposit of money equal to the amount of the security so required, the time when the security is so given; and

(b)

in any other case, the time when—

(i)

the time prescribed for the making of objections under section 136(4) above expires, or

(ii)

if such an objection is made, that objection is disallowed or removed,

whichever happens later”.

Section 138(1) of the 1983 Act requires the returning officer, “as soon as may be”, to “make out a list of all election petitions at issue presented to the court of which he is officer, placing them in the order in which they were presented” and to “keep at his office a copy of the list, open to inspection in the prescribed manner”.

Section 157 of the 1983 Act, headed “Appeals and jurisdiction”, provides so far as relevant as follows:

“(1)

No appeal lies without the special leave of the High Court from the decision of the High Court on any question of law, whether on appeal or otherwise, under the foregoing provisions of this Part of this Act, and if leave to appeal is granted the decision of the Court of Appeal in the case shall be final and conclusive.

(2)

Subject to the provisions of this Act and of the rules made under it, the principles, practice and rules on which committees of the House of Commons used to act in dealing with election petitions shall be observed, so far as may be, by the High Court and election court in the case of election petitions, and in particular the principles and rules with regard to—

(a)

agency,

(b)

evidence,

(c)

a scrutiny, and

(d)

declaring any person elected in place of any other person declared not to have been duly elected,

shall be observed, as far as may be, in the case of a petition questioning an election under the local government Act as in the case of a parliamentary election petition.

(3)

The High Court has, subject to the provisions of this Act, the same powers, jurisdiction and authority with respect to an election petition and the proceedings on it as if the petition were an ordinary action within its jurisdiction.

(4)

The duties to be performed in relation to parliamentary elections by the prescribed officer under this Part shall be performed by such one or more of the masters of the Senior Courts (Queen’s Bench Division)) as the Lord Chief Justice may determine.”

Sections 182-186 of the 1983 Act are headed “Supplemental”. Section 182 empowers the “authority having for the time being power to make rules of court for the Senior Courts” to make rules for the purposes of Parts II and III of the Act. Section 185 defines “prescribed”, as used in Part III, to mean “prescribed by rules of court”.

Section 202 of the 1983 Act defines a variety of expressions for the purposes of the Act. It states that “election petition” means “a petition presented in pursuance of Part III of this Act” and that “parliamentary election petition” means “an election petition questioning a parliamentary election or return”.

The 1960 Rules were originally made pursuant to the predecessor of section 182 of the 1983 Act, section 160 of the Representation of the People Act 1949. They have since been amended on several occasions pursuant to sections 136, 182 and 185 of the 1983 Act.

The explanatory note for the 1960 Rules, as first made, stated as follows:

“These Rules replace in modern form (with a few minor and consequential changes in procedure) the Rules relating to parliamentary and local government election petitions. Some of the existing provisions have been omitted in reliance on the general practice and procedure of the High Court, which will apply notwithstanding any different practice followed by committees of the House of Commons in dealing with election petitions before 1868.”

In line with that explanation, rule 2(4) of the 1960 Rules provides:

“Subject to the provisions of the Act and these Rules, the practice and procedure of the High Court shall apply to a petition under these Rules as if it were an ordinary claim within its jurisdiction, notwithstanding any different practice, principle or rule on which the committees of the House of Commons used to act in dealing with election petitions.”

Rule 4 of the 1960 Rules, which is of particular significance in the context of the first and second points of law in respect of which the Divisional Court granted leave to appeal, is so far as material in these terms:

“(1)

A petition shall be in the form set out in the Schedule to these Rules or a form to the like effect with such variations as the circumstances may require, and shall state—

(a)

in which of the capacities mentioned in section 121(1) or section 128(1) of the Act the petitioner or each of the petitioners presents the petition;

(b)

the date and 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;

… and

(d)

the grounds on which relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved;

and shall conclude with a prayer setting out particulars of the relief claimed.

(2)

The petition shall be presented by filing it and at the same time leaving three copies at the election petitions office.”

Rule 5 of the 1960 Rules requires a petitioner to apply to a Master within three days after the presentation of the petition for the amount of the security for costs he is to give to be fixed. Rule 6, which is central to the third point of law on which the respondents have leave to appeal, reads:

“(1)

Within five days after giving the security the petitioner shall serve on the respondent within the meaning of section 121(2) or section 128(2) of the Act and on the Director of Public Prosecutions a notice of the presentation of the petition and of the nature and amount of the security which he has given, together with a copy of the petition and of the affidavit accompanying any recognisance.

(2)

Service shall be effected in the manner in which a claim form is served and a certificate of service shall be filed as soon as practicable after service has been effected.”

By rule 7, a respondent who intends to object to a recognisance “shall, within fourteen days after service on him of the notice referred to in Rule 6, serve on the petitioner notice of his objection, stating the grounds thereof, and issue and serve on the petitioner an application notice to determine the validity or otherwise of the objection”.

Rule 19(1) of the 1960 Rules, which also featured prominently in argument, provides:

“Any period of time prescribed by Rules 5, 6 or 7 shall be computed in accordance with section 119 of the Act and shall not be varied by order or otherwise, but save as aforesaid rules 2.8 to 2.11 and 3.1(2)(a) of the Civil Procedure Rules 1998 shall apply to any period of time prescribed by these Rules as if it were prescribed by the Civil Procedure Rules.”

Section 23 of the 1983 Act stipulates that the proceedings at a Parliamentary election are to be conducted in accordance with the Parliamentary elections rules in schedule 1 to the Act.

Those rules require a nomination paper to be accompanied by a “home address form” giving the candidate’s home address in full: rule 6(4). Subject to exceptions, no person is entitled to attend the proceedings during the time for delivery of nomination papers or for making objections to them unless he is, among other things, “a person standing nominated as a candidate”: rule 11(1). By rule 11(3), the “right to attend conferred by this rule includes the right (a) to inspect, and (b) to object to the validity of, any nomination paper and associated home address form”.

Rule 50(1) of the Parliamentary elections rules provides:

“In a contested election, when the result of the poll has been ascertained, the returning officer shall forthwith—

(a)

declare to be elected the candidate to whom the majority of votes has been given;

(b)

return his name to the Clerk of the Crown; and

(c)

give public notice of his name and of the total number of votes given for each candidate together with the number of rejected ballot papers under each head shown in the statement of rejected ballot papers.”

Rule 51(1) of the Parliamentary elections rules requires the returning officer to “return the name of the member elected by endorsing on the writ a certificate in the form in the Appendix”. By rule 51(3), the returning officer “may, on receiving a receipt, deliver the writ with the certificate endorsed on it to an official designated for that purpose by a universal postal service provider who is providing a universal postal service (within the meaning of Part 3 of the Postal Services Act 2011) for the area in which the election is being held or to his deputy, provided that the official or deputy is at that time within the area concerned”. By rule 51(4), the designated official or his deputy is to “send the writ so endorsed by the first post, free of charge, under cover to the Clerk of the Crown with the words ‘Election Writ and Return’ endorsed on it”.

Rule 52 of the Parliamentary elections rules provides:

“(1)

The Clerk of the Crown shall from the certificate on each writ returned to him enter the name of the member returned in a book to be kept by him at the Crown Office.

…

(3)

The book shall be open to public inspection at reasonable times and any person may, on payment of a reasonable fee, take copies from the book.”

Rule 53A deals with destruction of home address forms. It states:

“The returning officer shall destroy each candidate’s home address form—

(a)

on the next working day following the 21st day after the officer has returned the name of the member elected; or

(b)

if an election petition questioning the election or return is presented before that day, on the next working day following the conclusion of proceedings on the petition or on appeal from such proceedings.”

The most relevant of the authorities relating to election petitions to which we were referred were Ahmed v Kennedy [2002] EWCA Civ 1793, [2003] 1 WLR 1820 and Ireland v Dorries [2015] EWHC 2781 (QB), [2016] 1 WLR 571.

In Ahmed v Kennedy, the Court of Appeal upheld orders striking out election petitions on the ground that the petitioners had failed to notify the respondents of the amount and nature of the security for costs they had given as required by section 136(3) of the 1983 Act and rule 6(1) of the 1960 Rules. It was argued on behalf of the petitioners that, “whatever the 1960 Rules provide, any failures to comply with them are amenable to the exercise of the High Court’s discretionary powers under the CPR, most notably CPR r 3.10 (and, if it is held that on true analysis the petitioners here need an extension of time, CPR r 3.1(2)(a))”: see paragraph 19. However, Simon Brown LJ, with whom May LJ agreed, explained in paragraph 23 that “the legislation dictates the following hierarchy of provisions: first, Part III of the Act and the Rules made under section 182(1); next the CPR; finally any residual ‘practice, principle or rule’ of the House of Commons (likely to concern matters such as agency and scrutiny)”: paragraph 23. Approaching matters on that basis, Simon Brown LJ said that it was necessary to consider “the precise nature of the petitioners’ non-compliance with the legislation in these cases so as to reach a view whether the discretion which the court is being invited to exercise under the CPR is compatible or otherwise with the mandatory requirements of the 1960 Rules”: paragraph 24. In this connection, Simon Brown LJ noted in paragraph 24 that non-compliance with section 136(3) and rule 6 could take any one of three forms:

“(a)

late service (i e service out of time); (b) non-service of a necessary respondent (whether the successful candidate or the returning officer in a case where the latter is deemed or required to be a respondent - or, indeed, non-service of the Director of Public Prosecutions as is required by rule 6); or (c) timeous service of the respondent(s) but service which is defective as to the content of the documents served”.

It was the petitioners’ case that their non-compliance had been of the third kind, but Simon Brown LJ rejected that. He said in paragraph 28:

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

Simon Brown LJ then addressed the petitioners’ “wider submission that, rule 19 notwithstanding, these provisions are to be regarded as directory only rather than mandatory so that non-compliance with them is not such as to nullify the proceedings”: see paragraph 29. In that connection, Simon Brown LJ asked himself “directly” in paragraph 29: “does this legislation on its true construction give the court a discretion to waive these petitioners’ timeous non-compliance or must it be regarded as fatal to their proceedings?” He concluded in paragraph 31 that he could not regard the non-compliance as a curable irregularity: it struck him rather as “a fundamental failure to effect timeous service of a proper notice”. Simon Brown LJ went on to say in paragraph 32 that the failures were such as to require the striking out of the petitions, observing:

“Timeous service is an imperative in these cases. Rule 19 is very strong. CPR r 2.11, for example, ordinarily allows for parties to agree variations of specified time limits. Rule 19 disapplies it in rule 6 cases.”

In paragraph 40, Simon Brown LJ referred to “Parliament’s insistence upon the strict compliance by both parties with the series of requirements imposed by section 136 of the 1983 Act to ensure that any petition is made ready for listing and disposal as speedily as possible”. He added:

“Flexibility and discretion are all very well but there is merit too in certainty, not least in the field of electoral challenge. It is undesirable to have someone serving in a public office with doubts surrounding the legitimacy of his election.”

In his concurring judgment, Clarke LJ said in paragraph 50 that “the power in CPR r 3.1(2)(a), assuming it otherwise to apply, has no application because it must yield to the express prohibition in rule 19(1) of the 1960 Rules that the five days provided by rule 6(1) of the 1960 Rules shall not be enlarged” and, in paragraph 51, that this was “not … a case in which it can be said that a defective notice was given in time” but one in which “no notice was given at all in either case”.

In paragraph 53, Clarke LJ said that he thought it important not to seek to decide questions which did not arise on the facts. He continued in paragraphs 54-56:

“54.

In particular, all the cases to which Simon Brown LJ has referred, including the Shrewsbury case 19 LT 499, are cases in which no notice was given within the prescribed period. None of them is a case in which a defective notice was given timeously. I would leave open for future decision whether the court has a discretion, through section 157(3) of the 1983 Act and CPR r 3.10, to treat a defect in a timeous notice as a failure to comply with a relevant rule. Alternatively, a court might treat a notice which substantially complied with the provisions of section 136(3) as sufficient compliance with it. As Simon Brown LJ puts it, precisely which errors are remediable and which fatal it is unnecessary to decide.

55.

I would, however, add this. Although I would leave these questions for future consideration in the light of such rules as then apply, even if the court had a discretion in such a case, I would expect it to be exercised in a petitioner’s favour only in a very rare case, because I can see no reason in principle why petitioners and their solicitors should not read the relevant provisions of the 1983 Act and the 1960 Rules, which are quite simple, and apply them in accordance with their terms.

56.

Finally, while I would accept [the] submission that there is a hierarchy of provisions, first Part III of the 1983 Act and the 1960 Rules, next the CPR and finally any residual practice, principle or rule of the House of Commons, that does not resolve the question whether the court has the powers given by the CPR in the absence of a provision of the 1960 Rules which is in less absolute terms than rule 19(1), which expressly forbids an enlargement of time. I would leave that further question open until it arises.”

In Ireland v Dorries, an election petition had been sent to a respondent at the constituency office of her political party. The petitioner subsequently applied for retrospective permission to serve the petition at an alternative place, namely, the address to which it had been posted, pursuant to CPR rule 6.15. The Divisional Court (Popplewell and Jeremy Baker JJ), however, declined to make such an order and dismissed the petition.

Popplewell J, with whom Jeremy Baker J agreed, expressed the view that “service by an alternative method is permissible in relation to an election petition where what is sought is a prospective order under rule 6.15(1)”: paragraph 22. If, he explained, “such an order is sought and made in advance of the expiry of the five-day limit (set out in EPR [i.e. the 1960 Rules] rule 6(1)), so that no question of EPR rule 19 coming into play arises, there is in my view nothing in the statutory framework to prevent such service falling within the range of permitted modes of service which are prescribed”.

Turning to the question “whether there is a power to validate retrospectively under CPR r 6.15(2) when the application has not been made or heard prior to the expiry of the five-day period imposed by EPR rule 6”, Popplewell J noted in paragraph 26 that that “brings into play questions as to whether granting retrospective validation would cut across EPR rule 19 and in particular the prohibition in that rule on extending periods of time”.

Since Popplewell J considered that this was not an appropriate case in which to exercise the power even if it existed, he preferred to express no view on the question and found it unnecessary to do so.

The Divisional Court said this in paragraph 65 of its judgment:

“In our view, the correct construction of rule 4 of the [1960] Rules is that it is not necessary for the petition separately to state the date of the return if there is a sufficient statement of the date on which the returning officer had an obligation to make the return. The wording of rule 4 is that the petition ‘shall state … the date and result of the election …, showing in the case of a parliamentary election the date on which the return was made…’ (emphasis added). If, as here, the petition states the date on which the election was conducted and date on which the result was declared, then there is a sufficient ‘showing’ of the date on which the return was made, because the returning officer had an obligation to make the return ‘forthwith’. To require that there should be a separate specification of the date of the return – which, other than as a deduction from the date of the declaration of the result, may well not be within the knowledge of a petitioner – serves simply to add a technical requirement, which might well not be understood by petitioners (many of whom … may be unrepresented), to no real purpose.”

Mr Timothy Straker KC, who appeared for Mr Young with Mr Rupert Beloff, took issue with the Divisional Court’s approach. Parliament, he said, has chosen to lay down a particular requirement, namely, that a petition should in the case of a Parliamentary election show “the date on which the return was made to the Clerk of the Crown of the member declared to have been elected”. It was not open to the Divisional Court to ignore what Parliament has required and, if the Divisional Court assumed that the date would on which the return was made would coincide with that on which the successful candidate was declared to have been elected, it was mistaken.

I agree that “the date on which the return was made to the Clerk of the Crown” (as mentioned in rule 4(1)(b) of the 1960 Rules) cannot be equated with the date on which the result of the election was declared. It is true that, as the Divisional Court said, the returning officer is obliged by rule 50(1) of the Parliamentary elections rules to return the name of the elected candidate “forthwith”. Even so, the returning officer will not necessarily deliver the endorsed writ to “an official designated for that purpose” in accordance with rule 51(3) on the very day of the declaration, and it is still more unlikely that the writ so endorsed will both be sent by the “designated official or his deputy” pursuant to rule 51(4) and reach the Clerk of the Crown on the day of the declaration. In fact, the provision in rule 51(4) for the writ to be sent by first class post makes it almost inconceivable that it will arrive at its destination on the day it is despatched.

Take an election in which the declaration is made before midnight on the day of polling. While most declarations are not made as fast as that, some are, and in such a case the returning officer could not be criticised if he did not deliver the endorsed writ to “an official designated for that purpose” until the next day. Further, there would be little or no prospect of the writ being delivered to the Clerk of the Crown until a later day.

In the circumstances, I part company from the Divisional Court on Issue (1). Section 121(3) of the 1983 Act states that a petition “shall be in the prescribed form” and “state the prescribed matters”. By section 185, “prescribed” means “prescribed by rules of court”, and the relevant rules, viz. the 1960 Rules, stipulate in rule 4(1) that a petition “shall state … the date and 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”. The 1960 Rules thus require a petition to give the “date and result of the election” but also, in the case of a Parliamentary election, to show “the date on which the return was made to the Clerk of the Crown”, and that latter date need not be either the date on which the election was held or that on which the result was declared. That being so, a petition will not, in my view, satisfy the requirements of rule 4(1)(b) of the 1960 Rules merely by stating the date of the election and the date of the declaration of the result.

I would therefore answer in the affirmative the first of the questions for which the Divisional Court granted leave to appeal.

Supposing that, as I consider to be the case, a petition which does not expressly show “the date on which the return was made to the Clerk of the Crown” in the case of a Parliamentary election is not in the prescribed form, what are the consequences?

Mr Straker argued that such an omission can be neither remedied nor excused. Save in very particular circumstances (as given by the legislation), electoral law provides no scope for exceptions or discretions, Mr Straker said. Where a petition fails to show “the date on which the return was made to the Clerk of the Crown”, there is simply no petition under the 1960 Rules and so the purported petition must just be dismissed. Mr Straker cited Ahmed v Kennedy in support of his submissions and further relied on a passage from London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 (“London & Clydeside Estates”) in which Lord Hailsham of Marylebone LC said, at 189, “When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail”.

In contrast, the Divisional Court considered that, supposing its construction of rule 4 of the 1960 Rules to be wrong, failure to show “the date on which the return was made to the Clerk of the Crown” would be “a case of an error of procedure, constituted by a failure to comply with a rule, and pursuant to CPR r. 3.10 this does not of itself invalidate the petition, and the court can make an order remedying the defect”: see paragraph 66 of the judgment. The Court saw no inconsistency between that conclusion and either Ahmed v Kennedy or rule 4 of the 1960 Rules. The Court observed in paragraph 66 that, “[g]iven the nature of rule 4, which is procedural, and where insistence on a precise compliance with its requirements in all cases will foreseeably produce injustice rather than justice in some cases, it would need to be clearly stated that a power such as that in CPR r. 3.10 was not applicable, and that was not done”.

The Divisional Court continued in paragraph 67 of its judgment:

“It is not difficult to think of many examples of where a strict application of rule 4, such as contended for by [Mr Young], might mean that otherwise meritorious petitions were found invalid and demurrable for technical errors or oversights. Thus, it might be the case that the petition got the date of the election slightly wrong; or contained a statement of some evidence by which the facts relied on were to be proved; or set out the relief claimed at the beginning rather than at the conclusion of the document; or, while saying what was being sought in the body of the petition, contained nothing which would ordinarily be described as a ‘prayer’. All of these are the types of matters which it would reasonably be expected should be capable of being remedied or disregarded in an appropriate case, and where, if it had actually been intended by Parliament that that should not be the case, that would have needed to be stated expressly.”

In considering the implications of failure to comply with a requirement specified in rule 4 of the 1960 Rules, I find it helpful to return to London & Clydeside Estates. In that case, the House of Lords unanimously held that failure to comply with a statutory requirement was fatal to a certificate purportedly issued in a compulsory purchase context. After, however, making the observation quoted in paragraph 51 above, Lord Hailsham went on at 189-190:

“But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority … to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like ‘mandatory,’ ‘directory,’ ‘void,’ ‘voidable,’ ‘nullity’ and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition.”

On the facts, however, Lord Hailsham held that the requirement in question was “mandatory and not directory” and that there had been a “total failure to comply with a significant part of a requirement”: see 189 and 190.

In R v Soneji [2005] UKHL 49, [2006] 1 AC 340 (“Soneji”), Lord Steyn referred to the comments of Lord Hailsham in London & Clydeside Estates which I have quoted as an “important and influential dictum” and explained that they had “led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity”: see paragraph 15. In paragraph 23, Lord Steyn said that “the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness” and that, instead, “the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity”. The other Law Lords (including Lord Brown of Eaton-under-Heywood, as Simon Brown LJ had become) agreed with the substance of Lord Steyn’s observations.

The Supreme Court has recently considered, and applied, Soneji in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27, [2025] AC 1075 (“A1 Properties”). That case concerned the regime under which, pursuant to the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”), “qualifying tenants” of flats are entitled to take over the management of their block via a right to manage (“RTM”) company. Section 79(6)(a) of the 2002 Act provides for an RTM company to give notice of such a claim to, among others, each person who on the relevant date is “landlord under a lease of the whole or any part of the premises”. In A1 Properties, the RTM company had failed to serve an intermediate landlord in accordance with section 79(6)(a). However, the Supreme Court concluded that the failure did not invalidate the claim to acquire the right to manage.

Lords Briggs and Sales (with whom Lords Hamblen, Leggatt and Stephens agreed) explained in paragraph 61 that “[t]he point of adoption of the revised analytical framework in Soneji was to move away from a rigid category-based approach to evaluating the consequences of a failure to comply with a statutory procedural requirement and to focus instead on (a) the purpose served by the requirement as assessed in light of a detailed analysis of the particular statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process is affirmed notwithstanding the breach of the procedural requirement”. Lords Briggs and Sales noted in paragraph 62 that “[e]xamination of the purpose served by a particular statutory procedural rule may indicate that Parliament intended that it should operate strictly, as a bright line rule, so that any failure to comply with it invalidates the procedure which follows”, but they observed in paragraph 63 that “[o]ften … analysis according to the Soneji approach does not lead to such a clear-cut result”. They went on:

“The statutory regime may reflect, and balance, a number of intersecting purposes, both as to substantive outcomes and as to the procedural protections inherent in the regime. In that situation, a more nuanced analysis may be called for. Soneji itself is an example of this. The purpose of depriving convicted offenders of the proceeds of their crimes had to be balanced against sufficient compliance with procedural protections available to them before they could be deprived of their property. A test of substantial compliance with a procedural rule may be an appropriate way to allow for such a balance to be struck between competing purposes. If there has been substantial compliance with the rule, so that the purpose served by it has largely (if not completely) been fulfilled, it may more readily be concluded that fulfilment of the competing substantive purpose of the legislation should be given priority.”

Addressing whether the omission at issue in the case before them invalidated the RTM company’s claim, Lords Briggs and Sales said:

“91.

In our view, in evaluating whether a procedural failure under the regime has the effect of invalidating the process, the question to be addressed is whether a relevant party has been deprived of a significant opportunity to have their opposition to the making of an order to transfer the right to manage considered, having regard to (a) what objections they could have raised and would have wished to raise and (b) whether, despite the procedural omission, they in fact had the opportunity to have their objections considered in the course of the process leading to the making of the order to transfer the right to manage. If there was no substantive objection which they could have raised or would have wished to raise, they have lost nothing of significance so far as the regime is concerned and the inference is that Parliament intended that the transfer of the right to manage should be effective notwithstanding the omission. If their objection has in fact been considered in the process, even though the claim notice was not served at the proper time, again they have lost nothing of significance so far as the regime is concerned and the inference as to Parliament's intention is the same.

92.

In both cases, the focus is on the position of the party directly affected by the procedural omission. The omission does not give other persons who are not so affected … a right to object to the making of a transfer order if the party who is so affected has not sought to complain about this ….”

As I understand it, neither Soneji nor A1 Properties was cited to the Divisional Court. It must, however, be right to have regard to the guidance to be derived from those cases (both of which post-date Ahmed v Kennedy) when deciding whether a failure to comply with rule 4 of the 1960 Rules (and, in particular, a failure to show the date on which the return was made to the Clerk of the Crown) invalidates an election petition.

In Ahmed v Kennedy, Simon Brown LJ noted “Parliament’s insistence upon the strict compliance by both parties with the series of requirements imposed by section 136 of the 1983 Act to ensure that any petition is made ready for listing and disposal as speedily as possible” and saw “merit … in certainty, not least in the field of electoral challenge”. Considerations of that kind might point towards a “bright line rule”, such that any failure to comply with the prescribed requirements is fatal. It is also relevant that the date on which a return is made to the Clerk of the Crown may be significant in determining whether a petition has been presented in time: by section 122(1) a Parliamentary election petition has to be presented within 21 days after the return has been made.

On the other hand:

Further, on the facts of the present case there is no question of any respondent having been in any way prejudiced by Mr Moore’s failure to specify the date on which the return was made to the Clerk of the Crown. Since the petition was presented only 13 days after the result of the election was declared, there was no question of it being out of time and so the date of the return was of no consequence. In any event, it is only Mr Young who takes this point and he will have had personal knowledge of when delivery to a designated official occurred. The simple fact is that Mr Moore’s omission cannot have resulted in Mr Young losing anything of any significance at all.

It is perhaps relevant also to note that the “bright line” approach espoused by Mr Straker would imply that a variety of what might be thought trivial failures to comply with rule 4 of the 1960 Rules would be fatal to a petition. The Divisional Court gave examples in the passage from its judgment which I have quoted in paragraph 53 above.

However, whatever the position may be in relation to such defects, I do not think that Parliament is to be taken to have intended that failure to give “the date on which the return was made to the Clerk of the Crown”, as required by rule 4(1)(b) of the 1960 Rules, should in the circumstances of this case result in the petition being invalid and falling to be dismissed or struck out. While specifying the date may sometimes help a respondent to know whether the petition was presented in time, that was not the case here. Nor is there any reason to believe that anyone has been prejudiced in any way by the omission. In particular, the respondent who has complained of the non-compliance, Mr Young, did not need to be told when he had delivered the writ to a designated official.

There is no inconsistency between these conclusions and what was decided in Ahmed v Kennedy. In Ahmed v Kennedy, Simon Brown LJ distinguished between service of a defective document and non-service and said that, in the case before him, there had been “a complete failure to give the notice within the prescribed time”. Likewise, Clarke LJ said that the case was one where “no notice was given at all”, “not … [one] in which it can be said that a defective notice was given in time”. In contrast, Mr Moore’s failure to give “the date on which the return was made to the Clerk of the Crown” merely rendered the petition defective, and Simon Brown and Clarke LJJ both recognised that different considerations could arise in such a situation. Simon Brown LJ left open “[p]recisely which errors are remediable and which fatal” and Clarke LJ referred to the possibility of a Court “treat[ing] a notice which substantially complied with the provision of section 136(3) as sufficient compliance with it”.

In all the circumstances, I do not think I need to consider the extent, if any, to which a defect in an election petition can be remedied under CPR 3.10. In my view, Parliament did not intend the failure to comply with rule 4(1)(b) of the 1960 Rules which happened in this case to render the petition invalid. No remedy is therefore required.

Section 121(5) of the 1983 Act provides for an election petition to be “served in such manner as may be prescribed” and, by rule 6(2) of the 1960 Rules, service is to “be effected in the manner in which a claim form is served”.

By CPR rule 6.3, a claim form may be served by any of the following methods:

“(a)

personal service in accordance with rule 6.5;

(b)

first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A;

(c)

leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10;

(d)

fax or other means of electronic communication in accordance with Practice Direction 6A; or

(e)

any method authorised by the court under rule 6.15”.

Where a party has not given an address for service, a claim form which is to be served by post should be sent to the party’s “usual or last known residence”: see CPR rule 6.9. A claim form cannot be served by email unless the party has indicated in writing that he is willing to accept service by electronic means: see paragraph 4.1 of Practice Direction 6A.

In the present case, Ms Pochin had not indicated willingness to accept service by electronic means and the House of Commons, to which Mr Moore sent the petition addressed to her, was not her “usual or last known residence”. The petition was not, therefore, served on her in accordance with any of the methods specified in CPR rule 6.3(1)(a)-(d).

However, CPR rule 6.3(1)(e) explains that a claim form may also be served by “any method authorised by the court under rule 6.15”. So far as relevant, CPR rule 6.15 provides:

“(1)

Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2)

On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”

The Divisional Court concluded that CPR 6.15(2) empowered it retrospectively to order that steps taken to bring a petition to the attention of a respondent within the five-day period prescribed by rule 6 of the 1960 Rules constituted good service. It further considered that, on the facts, it should exercise that power. It said in paragraph 82 of its judgment:

“In summary, we regard the following matters of particular significance:

(1)

that Mr Moore acted promptly, both in presenting the petition, and in taking the steps he did to bring it to Ms Pochin’s attention;

(2)

the manner in which the petition was brought to Ms Pochin’s attention was such as to create a clear point at which Ms Pochin could be said to have been served;

(3)

the contents of the petition were brought to her actual attention during the five day period; and

(4)

we can see no relevant prejudice which the third and fourth respondents will suffer by reason of the retrospective validation of the service which occurred.

Those matters appear to us to constitute ‘a good reason’ why there should be a validation order under CPR r. 6.15(2). To the extent that the context of rules 6 and 19 of the Rules requires that the ‘good reason’ has an additional degree of cogency and force, as is suggested in Ireland v Dorries, we consider that it has.”

As I have already mentioned, there is no issue before us as to the manner in which the Divisional Court exercised the discretion which it believed itself to have under CPR rule 6.15(2). What we have to determine is whether the Court was right that CPR 6.15(2) gave it power to effect retrospective validation.

Both Mr Straker and Mr Adam Richardson, who appeared for Ms Pochin, stressed that rule 19 of the 1960 Rules states that any period of time prescribed by, among others, rule 6 "shall not be varied by order or otherwise”. It follows that the five-day period prescribed for service of a petition by rule 6 cannot be “varied by order or otherwise” and (so it was argued) retrospective validation under CPR rule 6.15(2) would be inconsistent with that bar. Steps which had not amounted to good service within the five-day period would, after the event, be decided later to do so, it was said.

Reliance was placed on passages in Ahmed v Kennedy and Ireland v Dorries. In the former, Simon Brown LJ said in paragraph 32 that “[t]imeous service is an imperative in these cases”, adding:

“Rule 19 is very strong. CPR r 2.11, for example, ordinarily allows for parties to agree variations of specified time limits. Rule 19 disapplies it in rule 6 cases.”

In Ireland v Dorries, at paragraph 29, Popplewell J referred to “the public interest in speedy certainty which is reflected in EPR [i.e. the 1960 Rules] rules 6 and 19”.

The point was also made that the date on which a petition is served determines when certain other things are to be done. Thus, rule 7 of the 1960 Rules requires a respondent intending to object to a recognisance to serve notice of his objection “within fourteen days after service of the notice referred to in Rule 6” and, pursuant to section 137 of the 1983 Act, a petition potentially becomes “at issue” and should be listed in accordance with section 138 when the time prescribed for objecting to recognisances expires. A respondent, Mr Straker and Mr Richardson submitted, could find that he was too late to object to a recognisance before either he had been duly served or an order under CPR rule 6.15(2) had been made.

Mr Straker further argued that, given the political context, it is undesirable for Courts to have to make discretionary decisions in relation to election petitions. He said, too, that a candidate wishing to challenge an election result should be in a position to obtain the address of the person declared to have been elected in time to effect due service of a petition. He cited in this respect rule 11 of the Parliamentary elections rules.

However, rule 6(2) of the 1960 Rules provides for service to be effected “in the manner in which a claim form is served”. The “manner in which a claim form is served” is explained in CPR rule 6.3, which, by CPR rule 6.3(1)(e), specifies as permissible “any methods authorised by the court under rule 6.15”. By CPR rule 6.15 itself, the Court can either make an order providing prospectively for service by an alternative method or at an alternative place (under CPR rule 6.15(1)) or order steps already taken to be good service retrospectively (under CPR rule 6.15(2)). Both limbs of CPR rule 6.15 provide means by which, under the Civil Procedure Rules, a claim form may be served, and rule 6(2) of the 1960 Rules says nothing to render either approach impermissible.

Further, an order under CPR rule 6.15(2) does not involve an extension of time. Instead, steps taken at an earlier date are ordered to have constituted good service when they happened. It is for this reason that an order under CPR rule 6.15(2) can have the consequence that a claim form is considered to have been served in time and, hence, that the claim can be pursued when new proceedings would have been time-barred. A passage from Abela v Baadarani [2013] UKSC 44, [2013] 1 WLR 2043 is relevant here. In that case, Lord Clarke (with whom Lords Neuberger, Reed and Carnwath agreed) said in paragraph 36:

“As the editors of Civil Procedure, 2013 ed note (vol 1, para 6.15.5), rule 6.15(2) was designed to remedy what were thought to be defects as matters stood before 1 October 2008. The Court of Appeal had held in Elmes v Hygrade Food Products plc [2001] CP Rep 71 that the court had no jurisdiction to order retrospectively that an erroneous method of service already adopted should be allowed to stand as service by an alternative method permitted by the court. The editors of Civil Procedure, 2013 ed add that the particular significance of rule 6.15(2) is that it may enable a claimant to escape the serious consequences that would normally ensue where there has been mis-service and, not only has the period for service of the claim form fixed by CPR r 7.5 run, but also the relevant limitation period has expired” (emphasis added).

It follows, I think, that an order under CPR rule 6.15(2) would not fall foul of the prohibition on a period of time prescribed by rule 6 of the 1960 Rules being “varied by order or otherwise”. An order under CPR rule 16.5(2) does not vary such a period but rather provides for what was done within the period to be good service. As the Divisional Court said in paragraph 77(1) of its judgment, “While an order under CPR r. 3.1(2)(a) [under which the Court may extend time] would doubtless be inconsistent with rule 19 of the [1960] Rules, that is not so with an order under CPR r. 6.15(2) which deems to be valid steps taken within the prescribed time”.

The other objections which Mr Straker and Mr Richardson voiced to CPR rule 16.15(2) applying to election petitions may provide reasons for declining to make an order under CPR rule 16.15(2) on the particular facts. When deciding whether to exercise the power, the Court should have in mind “the public interest in speedy certainty” to which Popplewell J referred in Ireland v Dorries. The fact that a respondent who would have wished to object to a recognisance would be too late to do so would also, plainly, be a relevant factor. So too would the ease with which the petitioner could have effected due service in time without an order being made under CPR rule 6.15(2) (for example, because he would have been in a position to discover the address of the relevant respondent’s “usual or last known residence”). The Court should also remember that, as was explained by Lord Clarke in Abela v Baadarani at paragraph 36, “[t]he mere fact that the defendant learned of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under rule 6.15(2)”, albeit that that is “a critical factor”.

In all the circumstances, the Court should be cautious about making an order under CPR rule 16.15(2) in relation to an election petition. However, the arguments advanced by Mr Straker and Mr Richardson do not lead me to conclude that CPR rule 6.15(2) has no application in relation to election petitions. Matters such as those to which Mr Straker and Mr Richardson referred may mean that the power should be exercised only rarely, but it seems to me to exist. I would accordingly answer in the affirmative the question posed by the third point of law for which the Divisional Court gave leave to appeal. I agree with the Divisional Court that the Court has power under CPR rule 6.15(2) retrospectively to validate steps taken to serve an election petition within the five-day period prescribed by rule 6 of the 1960 Rules.

I would dismiss the appeal. The trial of the petition should, in my view, proceed.