Khan, R (on the application of) v The Election Commissioner for the Aston Ward

LORD JUSTICE SCOTT BAKER: We have heard a number of applications for leave to apply for judicial review in four separate, but related, proceedings. In the case of Zulfiqar Khan we granted him leave to apply for judicial review. His case proceeded thereafter as a full judicial review application. The other applications are all for permission.

The cases are linked in that they are they all related to decisions of Mr Richard Murray QC, sitting as an Election Commissioner hearing election petitions concerning the Bordesley Green and Aston Wards at the Birmingham City Council elections held on 10th June 2004. There is another applicant, Mohammed Afzal, whose application for judicial review succeeded in the Court of Appeal on 3rd May of this year. He was one of three Labour Party councillors who were elected for the Aston Ward at that election.

The Commissioner had found that Afzal, and others, had been guilty of corrupt and illegal practices at that election. He challenged the Commissioner's decision in so far as it related to him seeking judicial review, but he was refused permission to apply by Collins J, albeit, as I have said, he subsequently succeeded in the Court of Appeal so that the finding of corrupt and illegal practices against him was set aside.

The background to this case, the main statutory provisions in the representation of the People Act 1983, and the details of the Commissioner's decision so far as it relates to the Aston Ward, are set out in the Court of Appeal's judgment of 26th May of this year. It is unnecessary to repeat them in this judgment.

The present applications fall within four separate applications for judicial review. I take first Zulfiqar Khan, CO/2911/2005. Zulfiqar Khan was the Labour Party's Ward Organiser for Aston Ward. He was named by the Commissioner as being involved in corrupt and illegal practices during the local government election. The finding has serious consequences for him. They are set out, in particular, in section 160 (4). In summary he is disenfranchised for five years from voting in parliamentary and local government elections and cannot be elected to the House of Commons or hold any elective office. His claim is that the judge did not give him the statutory notice required by section 160(1) of the 1983 Act. This section provides:

What happened was this: Zulfiqar Khan was neither a party to the petition nor a candidate. Therefore, the subsection applied to him. The judge said, at paragraph 534 of his judgment, that he was satisfied that corrupt and illegal practices were proved against Mr Zulfiqar Khan. He said that he was given an opportunity to give evidence at the trial, but that he was told by Mr Hayes, who was acting for Mr Islam, that he hoped to call him, but that he had declined to testify on the advice of his solicitors. The judge said that in those circumstances he considered that Mr Zulfiqar Khan had received sufficient notice under section 160(1) and that accordingly he could name him.

In my judgment section 160(1) is a procedural provision whose purpose is to give a person, against whom the court is minded to make a finding of any corrupt or illegal practice, an opportunity of calling evidence and of making representations to the judge why he should not do so and should not name him in his report. It is a fundamental fairness provision that someone should not have what is tantamount to a criminal finding made against him without first having an opportunity to answer it.

The subsection itself is silent as to the form the notice should take, or the detail that it should contain. The detail should, in my view, be sufficient for the recipient of the notice to know the basis the Commissioner has in mind for naming him of a corrupt or illegal practice. Section 184 provides for the service of notices. It provides:

The present case is covered by subsection (1)(b) because the notice was to be given in a proceeding before the court. The court has a wide discretion as to the form of notice. Although there is no requirement for the notice to be in writing, it is often easier to prove that a written notice has been given than an oral one. An election court will often be under pressure of time and there are obvious advantages in the court giving notice under subsection 160(1) as soon as it is of opinion that there is sufficient evidence to establish the person has been guilty of a corrupt or illegal practice. No one in the present application has sought to argue that subsection 160(1) was complied with and, in my judgment, it was not.

It is one thing for Mr Zulfiqar Khan to have an opportunity to give evidence at the hearing in support of one or other of the respondents, it is quite another to know that the judge has the intention of taking the grave step of stating in his report that he is proved guilty of a corrupt or illegal practice. In my judgment a report of an election court should not name a person who is neither a party to the position, nor a candidate, as guilty of any corrupt or illegal practice, unless he has first been given notice under the subsection.

The closing words of subsection 160(1) appear to envisage that those who are neither a party to the petition, nor a candidate, in contradistinction to those who are, and who are guilty of a corrupt or illegal practice, do not necessarily have to be named in the report. The Commissioner decided not to name three others who, although engaged in corrupt practices were in his view mere foot soldiers. One reason, therefore, why Mr Zulfiqar Khan should have been given notice was to give him the opportunity of trying to persuade the Commissioner not to name him. He was deprived of that chance. In my judgment, therefore, his naming in the report was wrong because the condition precedent of notice under section 160(1) had not been complied with.

The present claim is, however, for judicial review. The remedy is discretionary. Should the naming of Mr Zulfiqar in the report nevertheless be allowed to stand? It is said that the decision was not challenged until 10th May of this year, whereas the offending decision had been made in the proceedings ending on 4th April. There is a high premium on challenges of this kind in election cases being made very promptly. On the other hand, it is said that there is no evidence to suggest Mr Zulfiqar Khan would not have responded had he been given notice. The judge was told he declined to testify on the advice of his solicitors. We do not, of course, know the content of that advice. However, he may have been advised that a judge was not entitled to name him in his report without first giving him notice and an opportunity to be heard. That, in my view, would have been sound advice.

It is argued that it can be inferred that Mr Zulfiqar Khan knew perfectly well what was going on. The case had been opened amid great publicity. He was the ward organiser and he must have been fully apprised of the progress of the hearing. Be that as it may, section 160(1) still requires that he should be given notice before he is named. He was entitled to that notice and he did not get it. One cannot speculate on how he might have responded had the appropriate notice been given. In the end the determining factor as regards discretionary relief is, for my part, the serious consequences of being named in the report and the fact that what is, in essence, a fairness provision, has not been complied with. I would therefore allow Mr Zulfiqar Khan's application, and in the exercise of the court's discretion set aside the naming of him in the election court's report.

I turn next to the applications of Jahan, Ahmed and Khan, CO/3577/05. These three claimants did not bring their claim for judicial review until 3rd June of this year. They were the three Labour candidates elected for the Bordesley Green Ward. Mr Manjit Gill QC, who has appeared on their behalf, lodged a 67-paragraph skeleton argument very shortly before this hearing and sought to back it up with detailed oral submissions. His contentions can be divided into three. First, the judge was wrong to refuse an adjournment and put back the trial. Second, the claimants did not have a fair hearing at the trial that they chose to take no part in, and third there have been various breaches of the European Convention on Human Rights.

I shall take the human rights point first. I think it is common ground that Article 6 adds nothing to the fair trial issues. However, Mr Gill has other human rights arguments to which he refers briefly at the end of his skeleton argument. These are points that were taken by Mr De Mello, on behalf of Afzal, at the hearing before the Commissioner. The Court of Appeal did not find it necessary to deal with them in determining Mr Afzal's appeal. Mr De Mello has not sought to raise them before us on behalf of Islam, whom he has represented in the present group of applications.

Mr Gill has not sought to develop these arguments, but nevertheless wishes to leave them open. I say no more, not having heard argument other than that the judge dealt with these issues at the trial and was not persuaded that there was merit in any of the arguments. On the face of it, I would regard that as a conclusion that is difficult to disturb.

It is necessary to say something about the Bordesley Green case against these three claimants. The case against the Labour Party respondents was straightforward. It was one of personation. It was contended that the personation was achieved by a number of different techniques under the broad heading of "cheating the system". What the petitioners in the Bordesley Green case set out to prove was: (1) that there was personation by misuse of postal votes on a large scale; (2) that such personation was committed for the benefit of the Labour Party respondents with the intention of getting them elected; (3) that those responsible were the Labour Party respondents themselves and persons acting as their agents for electoral purposes; (4) that there was thus the comission of corrupt and illegal practices on the part of the candidates; and (5) that there was also general corruption.

The evidence relied on fell into two main categories: first, evidence obtained from the documents themselves, principally applications to vote, declarations of identity and ballot papers and, second, corroborative evidence of wrongdoing. The first category of evidence involved evidence of a handwriting expert, a Mr Allen, and of a research and scheduling exercise carried out by a Miss Holland at the request of the petitioner's solicitors. Miss Holland is not a handwriting expert and in compiling her schedule she used ordinary techniques of comparison and, as the judge said, a great deal of common sense. Her guiding principle was to treat writing as different only when the differences were blatantly obvious to the naked eye.

Mr Allen's task was severly limited by time constraints. Where his work could be compared with that of Miss Holland, in about 80 per cent of the cases Mr Allen was able to confirm her conclusions on a conclusive basis and he accepts that there is evidence for her views in most of the remaining cases. The judge said he checked a number of Miss Holland's findings against the documents themselves and that her schedule performed well on that exercise. Miss Holland gave evidence before the judge and impressed him as a careful and thorough lady whose approach had been cautious throughout. He concluded that he was able to place considerable reliance on her evidence.

The second category of evidence fell into two classes: first, eyewitness evidence of malpractice and second, evidence from individual voters in whose names postal votes were cast and who were prepared to say that they never applied for a postal vote, they never used their postal vote, or their ballot paper had been altered after leaving them, and in each case the vote in question was not their vote. The judge said that he described the second category of evidence as corroborative because he accepted the proposition that the first category of evidence was so strong that if accepted it greatly diminished the need for any other evidence.

The judge went on to point out that he nevertheless took oral evidence from a representative selection of individual voters. He said that a considerable number of the statements of the individual voters were taken shortly after the election by supporters of the people's justice party and possibly also of the Liberal Democrats. The petitioners' solicitors had neither the time nor the resources to double-check these statements. The judge went on to say that at a very late stage in the trial, after the evidence had been completed, he was informed by the representative of the Director of Public Prosecutions that evidence had come into the possession of the police which indicated that some of the witness statements of the individual voters might not be genuine. He said that he granted permission for the police to visit as many of these witnesses as time permitted to see whether their statements could be verified. The police visited roughly 150 witnesses. The judge was told that 68 witnesses confirmed their statements were genuine and that the other witnesses, who were a smaller number, had either disavowed their statements or could not recall whether they had or had not given statements.

The judge said that he therefore proposed to take the following course: (1) where a witness had appeared in person he would evaluate his or her evidence and make up his own mind as to credibility. None of the witnesses visited by the police came into that category. (2) Where a witness statement from one of the individual voters had been verified by the police, the judge would consider himself entitled to take it into account as corroborative evidence. (3) Where a witness statement from one of the individual voters had not been verified by the police, for whatever reason, he would totally disregard it.

The judge went on to point out that 15 types of fraud had been identified. Type 1, the DOI [declaration of identity] signed by a different person from the application to vote. Here the evidence established that over 1,600 postal votes were cast in favour of the Labour Party candidates in which the signature of the purported elector, set out on the declaration of identity, differed from the signature for that elector set out on the application for the postal vote submitted in their name. Type 2: Multiple DOI [declarations of identity] witnessing with the same name but different addresses. Here there were over 280 postal votes in favour of the Labour Party candidates that fell into this category. Type 3: Multiple DOI [declarations of identity] witnessing with the same name and address but different witness signatures. Into this category there were over 350 postal votes cast in favour of Labour Party candidates. Type 4: The same person writes the signatures on the DOI [declaration of identity] of both the voter and the witness. In this category over 430 postal votes cast in favour of the Labour Party candidates. Type 5 the same person writes the signatures of the voter on several different DOI [declarations of identity]. More than 20 postal votes in this category. Type 6: Altered ballot papers. 146 postal votes were cast, which had been physically altered in favour of Labour Party candidates. Type 7: Forged signatures of witnesses on the DOI [declaration of identity].

Mr Allan, in his report, identified instances where postal votes were cast in favour of Labour Party candidates in circumstances where the signatures of those who purported to witness the declaration of identity were forged. Type 8: postal votes apparently cast by voters who had not applied for a postal vote. The judge said in this category:

In the light of this evidence the judge was satisfied to the criminal standard that:

In short, a very large number of all the Labour votes were false. The judge said that the best estimate he could give of the total number of ballot papers bearing bogus Labour voters could not be less than 1,500 and may well have been over 2000. This was in the context that the votes recorded by the three successful Labour candidates were 4,432, 4,150 and 3,976 respectively. As to the involvement of the Labour Party respondents the judge found this:

He was therefore satisfied, to the criminal standard, there were corrupt and illegal practices committed by the Labour Party respondents and their agents. There was general corruption within section 164 of the 1983 Act in that corrupt or illegal practices, committed with reference to the 10th June election for the purpose of promoting or procuring the election of the Labour Party respondents at that election, had so extensively prevailed that they may reasonably be supposed to have affected the result.

Mr Gill's first ground of complaint is that the Commissioner should have granted an adjournment. It was unfair to the Labour Party respondents, that is the claimant's in this application, for the hearing to proceed when it did. The election took place on 10th June 2004. The petition was issued by the losing people's Justice Party candidates under section 128 of the 1983 Act on 28th June 2004. By section 129 of that Act the petition had to be presented within 21 days after the date of the election. This time limit emphasises the necessity for speed in determining an election petition. This need really goes without saying. The reasons are obvious.

On 19th October 2004, Burton J gave directions about the preparation of the case and in the same month Mr Richard Mawrey QC was appointed as a commissioner to try the petitions in the election court. On 29th November, he directed that the trial of the Bordesley Green and Aston petitions take place sequentially starting with the Bordseley Green petition and beginning on 21st February of this year. On 3rd February, Messrs Steel and Shamash, the respondent's solicitors, applied for an adjournment. It is said that the reason for this application was the late and voluminous development of the evidence.

Unfortunately there is no transcript of the judge's reasons for refusing the adjournment. References to a later transcript and of what we were told on the present application, however, make it plain that the judge was not only aware of the need to determine an election petition as soon as possible, but was also concerned about the likelihood of a forthcoming General Election. One of the allegations in the petitions was that the returning officer had handled the postal ballots in the wrong manner. There were serious allegations against her staff. If, as was anticipated, a General Election was to take place on 5th May, she needed to know whether her procedures had been right or wrong, and, if necessary, to take remedial action before the General Election. Also, as she was the returning officer in the Birmingham City Council area for the General Election, it would be very difficult for her, and her staff, to be tied up with an election court in the immediate run-up to a General Election. The reality of the situation was that any adjournment would be for months not weeks. It is not surprising that the judge refused the adjournment.

On 10th February Messrs Steel and Shamash told these claimants that they were no longer representing them, or, it appears, the respondents to the Aston petition. On 16th February, the Commissioner held a pre-trial review at which the claimants appeared in person. They then found solicitors who agreed to act for them on a pro bono basis, but only for the purposes of seeking an adjournment at the commencement of the trial. The trial opened on 21st February and counsel immediately sought an adjournment. It was refused and the pro bono representatives then withdrew. The Commissioner said this in his judgment:

We have a transcript of the judge's ruling on 21st February 2005. It is to be found at page 763 of the blue bundle. The Commissioner pointed out that very experienced election solicitors and counsel had, up until very recently, been acting for the present claimants and that they had had a full opportunity to put in documents and pleadings and to adduce any matter they wished in other words, to prepare the case. He referred to the fact that an application had previously been made by all the Labour Party respondents to adjourn the hearing of both petitions until after 5th May, that is, after the widely anticipated General Election. He said the councillors had been in post for nearly nine months since they had been elected and true or false the allegations needed to be resolved.

The applications to adjourn were opposed by both the petitioners and the returning officer. There were allegations about the system operated by the returning officer and these too needed to be resolved so that the remedial steps, if required, could be taken before the General Election. The judge referred to a letter from Steel and Shamash in which they said that they had taken themselves off the record and that the present claimants would be giving evidence and were prepared to answer questions, but would otherwise be taking no part in the hearing of the petition. He said that it was in these circumstances that he called an urgent pre-trial conference which had taken place the previous Wednesday, at which all the parties with the exception of the Director of Public Prosecutions were present, and at that pre-trial review no application was made for an adjournment. Mr Gill, however, makes the point that the judge had previously made it clear that he was not going to grant one and therefore there was no purpose in repeating the application.

The judge went on to deal with the application that had been made on the morning of the hearing. He said:

The applications for an adjournment, made first on 3rd February and next on 21st February on the morning of the trial, were decisions that had to be made by the Commissioner in the exercise of his discretion. Such decisions are not likely interfered with by the Administrative Court on judicial review, and only if the Commissioner made a decision that was plainly wrong. Mr Commissioner Mawrey QC had various factors to weigh in the scales, including the need for these claimants to have a fair hearing and a need for an election court to reach a speedy conclusion on the issues before it. There was the additional factor of the imminent likelihood of a General Election. The case was not particularly complicated. It was clear what the allegations were against the claimants and they had legal representation over many months in the run up to the trial. No judge likes to proceed with a trial of this kind with unrepresented respondents. It places an additional burden on the judge, but it did not mean in this case that these claimants could not have a fair hearing. It was their choice to take no further part in the proceedings and not to challenge any of the evidence. I can detect no error in the judge's refusal to grant an adjournment either on 3rd or 21st February. Indeed, I would have reached the same conclusion myself.

Furthermore, if such a decision is to be challenged it should be challenged immediately rather than awaiting the outcome of the petitions. Applications for judicial review have to be made promptly and, in any event, within three months of the decision complained of. This application was not and Mr Gill has been unable to advance any convincing reason for the delay. In my judgment, to take no part in the trial and then complain about the refusal to adjourn, this long after the decision, is close to an abuse of process.

Mr Gill's next complaint is that the complainants did not have a fair hearing. The Commissioner bent over backwards to compensate for their absence of participation. He said:

In my judgment there was overwhelming evidence entitling the Commissioner to reach the conclusion he did. It does not lie in the mouths of those who chose to take no part in the hearing to say that other matters might have been explored, different inferences could have been drawn from some aspects of the evidence and the judge's approach might have been different. The fact is there was a very strong case against these men of corrupt and and illegal practices and the judge was entitled so to find. This claim was not brought within three months after the judge's judgment. It was one month after the Court of Appeal's decision in Azfal. Afsal's case shows that these cases can be heard and disposed of quickly if claimants take the appropriate application. I would refuse these applications for judicial review both on the grounds of delay and the fact that I am unpersuaded that the application has any merit.

Finally CO/4316/2005 and CO/4283/2005: Messrs Islam and Kazi. I take both these claims together. Mr Islam and Mr Kazi were two of the three Labour candidates elected for the Aston Ward. Their claims for judicial review were not commenced until 28th June 2004. That is very nearly three months after the decision complained of and nearly two months after the decision of the Court of Appeal in Azfal. Mr De Mello frankly admits that but for Mr Azfal's success in the Court of Appeal he would not have been before us making the present application. Neither of these applicants initially saw fit to challenge the Commissioner’s decision.

What they seek to do is to rely on Mr Azfal’s success as reflecting on their positions. In my view this approach is entirely misconceived. Mr Azfal’s case was that he was never at the warehouse on the night in question. It was a case of mistaken identity. He was, in effect, running an alibi defence. The Court of Appeal allowed his application because the judge was in error in the analysis of the evidence against him. The argument is that if the case against Mr Azfal is set aside the case against the others falls too. The fallacy of this argument is, in my judgment, that the case against them was different. They never disputed being at the warehouse when the police arrived and found numerous open ballot papers on a table.

It is plain from the judge's judgment that the judge considered Mr Islam and Mr Kazi quite separately from Mr Azfal. He heard them both give evidence. He did not believe them. The difficulty with their story was, he said, that it was inherently incredible. They had no real explanation for possession of these votes on the evening of 8th June and their explanation of failing to keep them in the lock-up shop with its steel shutter simply did not ring true. Also, as far as Mr Islam was concerned, he had adopted a variety of different identities to complete witness statements on declarations of identity which the Commissioner found was a clear indication of deliberate falsification of a vital election document. He was unable to give any satisfactory explanation. Both Mr Islam and Mr Kazi were, as the judge put it, caught red-handed rigging votes. I would refuse their applications both on the grounds of delay and lack of merit.

MR JUSTICE NEWMAN: I agree with everything my Lord has said in each of the cases. I only wish to add a short footnote in the case of Zulfiqar Khan. Corrupt or illegal practices in connection with elections were originally provided for by a separate statutue, namely the Corrupt and Illegal Practices Prevention Act of 1883. The terms of section 160(1) of the 1983 Act closely follow the terms of the 1883 Act.

In the 1983 Act the section forms part of a specific scheme of reporting which governs the procedure to be applied by the court at the conclusion of an election petition. The matters start with a petition. In a local election petition corrupt or illegal practice is governed by subsection (3) of section 145. That subsection provides: that where a charge is made in the petition of any corrupt or illegal practice having been committed, then there shall be a report in writing to the High Court, as required by sections 158 and 160, stating whether any corrupt practices have prevailed. I have merely summarised the import of the subsection. The matter is then followed through by section 158. Section 158 is significant because it deals with reporting in connection with a candidate guilty of a corrupt or illegal practice. Again it is not necessary to go to the whole of the sections and subsections, but, in essence, the report must state whether a candidate has been guilty and it has to state whether or not he has been personally guilty or guilty by his agents. Section 158(3) also provides that the candidate can seek to prove to the court certain matters set out in (a), (b), (c) and (d) of subsection (3) and if so the candidate shall not be treated, for the purposes of section 159, as having been reported guilty, by his agents, of the offences mentioned in the report.

As my Lord has observed, when one comes to section 161 one can see that there is a distinction drawn between the report of the election court in connection with a party to the petition or a candidate on behalf of whom the seat or office is claimed by the petition and third party. The words which follow, which my Lord has recited, provide for notice to someone other than a party to the petition or a candidate. These words were considered long ago, shortly after enactment in 1883 in the case of R v Manson Jones [1889] (?) 23 QB 29, when the then Lord Chief Justice, Lord Coleridge, described them as a notice provision providing for: "no more than common justice."

I see no reason to regard their presence in the 1983 Act as having any other purpose than providing for the protection of an individual and a requirement that the individual receive common justice, namely sufficient notice of the serious consequences which could follow upon a conclusion contained in a report that he had been guilty of a corrupt or illegal practice.

In my judgment the notice should be in such form as to indicate that he has not only the right to call evidence in his defence, namely a defence on the merits or otherwise to the alleged corrupt or illegal practice of which he is said to be guilty, the nature of which should be stated, but that he also has an opportunity to show why he should not be so reported. That, in my judgment, indicates an area which is larger and wider than simply joining issue on the facts giving rise to the alleged corruption or illegal practice.

Again, in my judgment, it is significant that, contrary to the position adopted by the Commissioner, it is not sufficient that the individual in question may be familiar with allegations which could give rise to a finding that he has been guilty of corruption or illegal practice. The essence of the notice is that the consideration of the facts has reached a stage at which the judge has decided that he is minded to report him. It is that which is an integral part of the notice.

I therefore agree that in this case, so far as Zulfiqar Khan is concerned, he did not receive common justice. I also agree, as my Lord has indicated, that on the facts of this case the court should grant him the relief by way of setting aside the reporting of him. Those are the only matters I wish to add.

LORD JUSTICE SCOTT BAKER: Mr Coppel, is there any difficulty about the drawing of the order to reflect the decision of Zulfiqar Khan?

MR COPPEL: I cannot see it.

LORD JUSTICE SCOTT BAKER: Perhaps you can keep an eye on it with the associate and make sure no problem arises.

MR DANESHYAR: Very briefly, I do apologise for turning up late. We were informed the judgment was to be handed down at 12.30. The other matter is in relation to costs. There is an application for costs on behalf of this applicant. Clearly, as your Lordships indicated, he was entitled to relief. The only issue your Lordships were being addressed on yesterday is whether or not you ought to exercise your discretion to withhold that relief: matters mostly conceded by the respondents in this matter. I would respectfully submit that, being a successful applicant in this matter, he is entitled to his costs.

LORD JUSTICE SCOTT BAKER: Against whom?

MR DANESHYAR: I would respectfully submit it ought to be against the respondent in this matter, or out of Central Funds.

LORD JUSTICE SCOTT BAKER: What is the position? Are you covered by public funds, or not?

MR DANESHYAR: No, no. There was initially an indication from the Legal Services Commission. They were minded to grant legal aid and that offer was withdrawn, namely on the basis of means. That was a miscalculation. We have appeared here unfunded.

LORD JUSTICE SCOTT BAKER: Have we got jurisdiction to grant you an order for costs out of Central Funds?

MR DANESHYAR: I believe there may not be that specific jurisdiction. What there is, is your Lordships do have discretion to award funds against an unsuccessful party. Largely this two day hearing would have been unnecessary had the respondents not wished to.

LORD JUSTICE SCOTT BAKER: Who is the unsuccessful party?

MR DANESHYAR: It would be the Commissioner who is represented by Treasury Counsel.

LORD JUSTICE SCOTT BAKER: The Commissioner has come here to assist the court. It would be very unusual to make an order against the Commissioner.

MR DANESHYAR: I can see your Lordship’s point of view. It would have been of great assistance to the court if the Commissioner had certainly acknowledged the fact that this case specifically, on its own merits, need not have been heard for two days.

LORD JUSTICE SCOTT BAKER: Mr Kovats, what do you say about this application because you did, I think, seek to persuade us not to make an order in the exercise of discretion and, secondly, you asked for guidance with regard to this provision in the future?

MR KOVATS: As set out in our skeleton, we had not intended to be represented. The only reason that we were represented, in the light of the comments of Davis J, when dealing with the matter of the permission on the papers. Secondly, as indicated in the skeleton jurisprudence set out in the case of Davies, is that providing that the court, the Commissioner in this case, confines itself to assisting the court, they are not at risk of an adverse contested order. Thirdly, we have not contested the case (inaudible) within decided as long ago as July that section 160 had not been complied with. Fourthly, we have not spent two days on the case. Your Lordships have spent the majority of the time on other cases. Given that in the light of Davis's J obligations we felt duty bound to be heard, it seemed only appropriate to ask the court to give guidance.

LORD JUSTICE SCOTT BAKER: Do you want to say anything in response to that?

MR DANESHYAR: Very simply this: of course the reason why the applicant is before this court is because during the course of the conduct of the hearing below the Commissioner had simply failed to undertake the relevant procedure of which he was aware. All of this litigation would have been unnecessary. If one follows the authority of Davies v Her Majesty's Deputy Coroner it certainly is unfair for a party to have undertaken significant expense to pursue in the first place a remedy which it would otherwise not have pursued had the correct procedure been followed. It is on that basis I ask your Lordship to grant costs in the application.

LORD JUSTICE SCOTT BAKER: We have some sympathy for your client's position, but we have come to the conclusion that this is not a case in which we ought to make an order for costs.

MR DANESHYAR: One final matter, and that is in relation to the disenfranchisement of the applicant, I may see the force of your Lordship's argument if it is mounted in relation to the General Election in that he simply did not issue proceedings perhaps quickly enough. However, there was a matter of the local government elections, and the reason why the proceedings did not take place before the local government elected elections is simply this there were the applications which your Lordships have dismissed for the other parties and the reason why this applicant's case was not heard in time for him to be allowed to vote in the local government election is because it was deemed necessary to tie his case which was distinctly separate from the case of the others. Again, within the grounds for judicial review there is a claim for the adequate compensation for his disenfranchisement, certainly in the elections.

LORD JUSTICE SCOTT BAKER: I am not quite clear what you are advancing?

MR DANESHYAR: First of all, a declaration was sought that he has been disenfranchised and his rights under Article 3 were violated and, secondly, adequate compensation.

LORD JUSTICE SCOTT BAKER: These were not arguments advanced to us yesterday.

MR DANEYSHAR: No, no they were not.

LORD JUSTICE SCOTT BAKER: We have dealt with the arguments you advanced to us and we have indicated the relief you have.

MR DANESHYAR: Just one matter: my client was granted a Legal Aid Certificate yesterday. I ask for an order of community public funding assessment of any costs.

LORD JUSTICE SCOTT BAKER: You can have that.

MR SOLOMAN: I am sorry. I appear in Mr Brodie's stead. I would ask for costs on behalf of my clients for Mr Brodie's work and attendance at the hearing.

LORD JUSTICE SCOTT BAKER: Who is that going to be paid by?

MR SOLOMAN: Mr Gill's clients, my Lord.

LORD JUSTICE SCOTT BAKER: Mr Gill, what do you say about that?

MR GILL: If my learned friend has something else to say in support of the application. I would submit it would be a very exceptional course for the court to take to grant an order for costs against an unsuccessful claimant at a permission hearing, even a permission hearing where there was, as happens nowadays, a contested hearing. In this case we originally asked for it to be dealt with on paper and, for various reasons, it was decided to have an oral hearing. I make no complaint about that. We are all here. The reality is that the court took a certain view of the arguments. The petitioners had relatively little to contribute and what they did contribute they contributed in respect of the grounds we submitted. They contributed yesterday. It is not the sort of exceptional case that should require the court to make an order for costs against my clients, particularly they being persons who have had to scrape some money together to get this matter up and running, which is one of the reasons we advanced for the delay.

LORD JUSTICE SCOTT BAKER: Yes, two brief points in response to that. Firstly, as I understand it, it was an application by Mr Gill to have the hearing rolled up from a permission hearing to a full merits hearing and accordingly it was both necessary and appropriate for Mr Brodie to attend. Secondly, your Lordship has indicated that--

LORD JUSTICE SCOTT BAKER: That was resisted by your clients.

MR SOLOMAN: That is right. It was necessary for them to turn up to resist that if they were wrong and your Lordship was not with them. It may have gone ahead to a full merits hearing. Secondly, your Lordship has indicated that the claimant's case was close to an abuse of process. It is an unusual set of circumstances and in the light of those points, my Lord, it is appropriate to award costs.

LORD JUSTICE SCOTT BAKER: (pause) Yes, we think it is appropriate to grant your client the costs in the circumstances of this case.

MR GILL: If I may respond on those two points? I did say: if he wants to add anything else. He has made two points: one is, we applied for it to be a rolled up hearing. We issued no application. We wrote a letter suggesting that that would be sensible. The person who applied for that issue of notice of application was the returning officer. Now the petitioners resisted that. We made no earlier response to them. We issued no formal application to that effect.

LORD JUSTICE SCOTT BAKER: It was obviously sensible to try and dispose of as much of this in one fell swoop as could be done. The determining factor is that if your clients choose to bring an application which is, as we have held, close to an abuse of process, it would be unjust not to give Mr Brodie's clients their costs.

MR GILL: I did not get a chance before that decision was made to deal with the abuse of process point. What your Lordship said in relation to that was, to bring a case this long after the matters, when the clients have walked out of the proceedings, was close to an abuse of process. I understand that, but the point is that your Lordships would need to take into account on a costs application that that may well be right nevertheless this is an unusual situation. You do not get election petitions trials occurring very often. This was a particularly unusual situation, for reasons too obvious to mention.

Secondly, the claimants are persons who, and this is one of the criteria that would have to be looked at, that is, what sort of persons are they, have been in difficulties. Firstly, they had pro bono assistance, secondly, they got enough money together to make the application they did. Most importantly, although the applicants having walked out is close to an abuse, according to the judgment the issue on which the application is brought relates to a most fundamental and important point which one does not often see being discussed in the court, bearing in mind the importance of that right, bearing in mind it coming to that court to say that simply because they delayed in circumstances where they walked out should lead to an order for costs against them mainly for rejection of the claim. For costs is, I respectfully submit, going a bit too far.

LORD JUSTICE SCOTT BAKER: No, your clients will have to pay the costs, Mr Gill, and we wish to make it clear that the overall matter of abuse that we raised is not just the abuse that you referred to, but leaving this matter until after the Court of Appeals’ decision. There we are.

MR COPPEL: Before your Lordship retires, the returning officer was named as the interested party in both Mr Kazi and Mr Islam matters, not an interested party in the other two, but made submissions in all of the other matters. We were going to have to be here for Mr Zulfiqar Khan's, in any event. We would say in relation to the balance of the returning officer’s costs they should be apportioned between the three groups of claimants, that is the Jahan, Kazi and Islam matters on the same basis. We always took the point, in the forefront of our submissions, that these were claims made way too late, bearing in mind the promptitude, the way we put it with the other claim being made before the Court of Appeal. We were of the view that these should not have been brought so late in the day. Those were the submissions by the returning officer. We too would ask for our costs.

MR GILL: I should say in relation to Mr Soloman's application for costs to be assessed, if not agreed?

LORD JUSTICE SCOTT BAKER: Yes, of course.

MR DANESHYAR: In relation to Mr Coppel's application we did not make him an interested party. He was not a defendant to the claim or an interested party. He also is saying nothing on the substance of the claim. He simply makes points about the delay. Those points about the delay could easily have been made, and have been made, by the petitioners who, as Mr Coppel himself says in his skeleton argument, I think, or an earlier letter from his solicitors, are perfectly capable of dealing with the matter. Indeed, the Commissioner's representative, Mr Kovats, who is here would also have made those points on delay. In so far as Jahan is concerned, we put it clearly on the documents that we were not interested in any matter relating to the returning officer. That was dealt with in correspondence. We ought not to be involved in any order which arises as a result of Mr Coppel's application.

LORD JUSTICE SCOTT BAKER: Can I say as far as Mr Kazi is concerned, we made no complaints against the returning officer and in fact in the skeleton argument the returning officer seeks to recover costs against the Commissioner. In reply to our submissions in relation to Mr Kazi's case, Mr Coppel did not have any submissions to make against us or responding to us. If one looks at our application as supplemented in what I said in my skeleton argument, there is nothing there of any substance at all that concerns him. As he said, he was going to be here for Mr Khan's case, in any event, therefore the appropriate order ought to be no order for costs as far as Mr Kazi is concerned. If there is one, not to be enforced without the usual terms.

LORD JUSTICE SCOTT BAKER: What about Mr Islam?

MR BERRY: I will be brief on that. The returning officer is an interested party in Islam. As against the defendant, where you are dealing with an interested party, the court should be very slow to impose an order for costs on the claimant, and finally, there are no exceptional circumstances here that would warrant such an order at this permission stage. The facts of Mr Islam's case are different from those of Mr Gill's client and the comments which your Lordship made in relation to the other applicants in the other ward does no apply to the clients in the Aston Ward case.

LORD JUSTICE SCOTT BAKER: Mr Coppel, do you want to add anything?

MR COPPEL: One final point. One reason why the returning officer is particularly concerned with these petitions is that if the matter were to have been ordered to be retried, as some of the claimants sought, the costs of those trials has to be borne by the returning officer and that is required under the representation of the People Act. That is one of the reasons why the returning officer was keen to ensure that there was not a fresh trial ordered and why she did participate in all of these matters.

LORD JUSTICE SCOTT BAKER: Mr Coppel, we are very grateful to you for all your assistance and we sympathise with the returning officer's position, but we do not think it would be right to make an order for costs in favour of the interested party in the particular circumstances here.