The Conservative and Unionist Party v The Election Commissioner & Ors

This case is all about a local election. It was won by the Conservative candidate. One of the defeated candidates was the Labour candidate. She claimed that the Conservative candidate had resorted to postal vote fraud. In due course, his election was set aside by an election court on a petition presented by the Labour candidate, and he was ordered to pay the costs of the Labour candidate on an indemnity basis. He did not do so, and the Labour candidate now wants to get an order for her costs to be paid by the Conservative Party and the local Conservative association. The important issue which this claim for judicial review raises relates to the extent to which an order for costs can be made against someone who was not a party to the election petition, in particular against the political party of the candidate whose election was set aside.

There is a subsidiary question which the court is being asked to answer. If an order for costs can be made against someone who was not a party to the election petition, can the application for such an order be heard by the Election Commissioner who tried the petition in the election court (whether sitting as an Election Commissioner in the election court or sitting as a deputy High Court Judge in the High Court) or has it got to be heard by a High Court Judge sitting in the High Court? The Labour candidate wants the application to be heard by the Election Commissioner who tried the petition, perhaps because those who are advising her think that the application will have a better chance of success before him. The Conservative Party contends that the Election Commissioner cannot and should not hear the application because

Although not relevant to any of the issues I have to decide, it should be recorded that the Conservative candidate was eventually prosecuted for postal vote fraud. He was convicted and sentenced to a term of imprisonment. The defeated Labour candidate did not stand in the subsequent by-election which took place. I was told that by then “she had probably had enough”. The by-election was won by a different Labour candidate. All references in this judgment to sections of an Act are references to sections of the Representation of the People Act 1983 (“the Act”) unless otherwise stated.

The election. The election with which this case is concerned was an election in the Central Borough Ward of Slough Borough Council. There were five candidates. They included Eshaq Khan, the Conservative candidate, and Lydia Simmons, the Labour candidate. The election took place on 3 May 2007. Mr Khan won the election with a majority of 120 votes over Ms Simmons who came second.

The election petition. On 24 May 2007, Ms Simmons presented an election petition questioning Mr Khan’s election. Section 130(1) required the petition to be tried by “an election court” consisting of a commissioner assigned under section 130(3)(b) to try it by the judges on the rota for the trial of parliamentary election petitions. Mr Richard Mawrey QC was appointed the Election Commissioner to try the petition. He is the defendant to this claim by the Conservative Party, though he has taken no part in the proceedings. The trial of the petition took place over ten days in January and February 2008 at Slough Town Hall. Mr Khan was represented by solicitors (Penningtons) and leading counsel. It was subsequently said that they were regularly instructed by the Conservative Party in matters of election law, and this was not disputed. Mr Mawrey gave judgment on 18 March 2008. He found that Mr Khan and his agents had caused the names of non-existent people to be entered on the electoral register for the ward, and had then applied for postal votes in their names. In doing so they had been guilty of corrupt and illegal practices, including the corrupt practice of impersonation. These practices could reasonably be supposed to have affected the result of the election, and he therefore declared Mr Khan’s election void. He ordered Mr Khan to pay Ms Simmons’ costs of the petition, which were to be assessed on an indemnity basis unless otherwise agreed. It should be made clear that when Mr Mawrey referred to Mr Khan’s agents, he was referring to Mr Khan’s supporters, not to his official agent who no-one had suggested had been a party to the frauds or had known about them. The same goes for both the Conservative Party and the Slough Conservative Association.

In his report to the High Court of the same date, Mr Mawrey made scathing remarks about the systems of electoral registration and postal voting, which in his view did not contain any effective safeguards against the kinds of fraud which Mr Khan and his supporters had practised. These systems, he said, were as vulnerable to systematic and widespread fraud as they had been when he had reported to the High Court at the conclusion of the trial of two election petitions relating to postal vote frauds in two wards of Birmingham City Council at local elections in 2004. Statutory reforms introduced since then had failed to address all but one of the frauds in Birmingham, and had not addressed at all the problem of fraudulent electoral registration which had marred the election in Slough. He added for good measure that the election petition was an inadequate and inappropriate mechanism to combat electoral fraud. It was not acceptable for electoral probity to be policed by what were, in effect, private civil actions brought at the expense of the unsuccessful candidate.

The inquiries about funding. In due course, a bill of Ms Simmons’ costs was submitted in the sum of £215,775.95. Since Penningtons did not raise any points of dispute about them, a default costs certificate was issued for that amount (plus £130.00 being the fixed costs on the judgment) on 13 May 2008. Attempts to enforce payment were unsuccessful, and in due course Mr Khan was adjudged bankrupt on a petition presented by Ms Simmons as a result of this debt. The Official Receiver was eventually to say that there was no apparent prospect of the distribution of funds to creditors. Accordingly, Ms Simmons decided to investigate how Mr Khan’s defence of the election petition had been funded with a view to making an application for costs against, among others, the Conservative Party or the Slough Conservative Association, even though they had not been parties to the petition.

To that end, Ms Simmons’ solicitors asked Penningtons who had funded Mr Khan’s defence. They responded that their fees had been paid by insurers, and that the policy limit had been exhausted, but that they were without instructions from Mr Khan, and could not disclose any further information. On being notified that Ms Simmons’ solicitors were proposing to apply to Mr Mawrey for an order requiring Mr Khan and Penningtons to disclose the information it sought, Penningtons said that the Election Commissioner was now functus officio, and that therefore Mr Mawrey had no power to consider the application. They cited the decision of the Court of Appeal in R v Cripps ex p Muldoon [1984] 1 QB 686 in support of that proposition.

In the meantime, Ms Simmons’ solicitors had decided to approach the Conservative Party and the Slough Conservative Association. Her solicitors said that they believed that the funding of Mr Khan’s defence had been arranged by the Conservative Party, and they requested the Conservative Party or the Slough Conservative Association to meet Mr Khan’s liability for Ms Simmons’ costs. Although they were told that Mr Khan had been able to obtain partial funding of his defence from insurers, no mention was initially made of who had arranged the insurance, though subsequently the Conservative Party’s Treasurer informed Ms Simmons’ solicitors that the insurance had been taken out by the Slough Conservative Association, and that Conservative Party Campaign Headquarters (“CCHQ”) had simply collected the premium from the local association and had sent it on to the brokers. He added that when an association informs CCHQ of a potential claim, underwriters pass the claim to Penningtons who are the designated solicitors under the policy. Provided that Penningtons have the association’s permission, they may “keep CCHQ informed of the incurring of costs from time to time from an insurance-cost point of view, as claims have a detrimental effect on further policy premiums”. He also said:

“Before the case went to trial, CCHQ were warned by Penningtons that the limit of insurance cover would be likely to be exceeded. This information was also given to their clients, of course, and the local Association. An ad hoc request for additional funding was made to CCHQ to cover the excess over that insured amount but was refused.”

Both the Conservative Party and the Slough Conservative Association declined to meet Mr Khan’s liability for Ms Simmons’ costs.

The application for disclosure. It was against that background that on 14 August 2008 Ms Simmons’ solicitors filed an application notice in the High Court. It was on the standard form for application notices in the High Court, and it asked for the application to be determined by the Election Commissioner. Mr Mawrey was being asked to order Mr Khan and Penningtons to disclose the insurance policy under which his defence was funded and to answer specific questions about the funding of his defence. Mr Mawrey was requested to determine the application without a hearing, and he was content to do so. He was provided with written submissions from Mr Gavin Millar QC (who had appeared for Ms Simmons on the hearing of the petition) and from Penningtons, though none from the Conservative Party or the Slough Conservative Association since they had not been parties to the application as the orders for disclosure which were being sought did not relate to disclosure by them. However, it is important to note that Mr Millar’s submissions made the point that if Mr Mawrey thought that he may be functus officio as the Election Commissioner, he could make the order sought as a deputy High Court judge in the High Court.

Mr Mawrey handed down judgment on the application on 9 October 2008. He said that in the light of the issue over his jurisdiction to consider the application as the Election Commissioner,

“… I have felt it prudent to arm myself with an ad hoc appointment as a deputy High Court Judge so that, which ever of Mr Millar’s submissions is correct, I shall have the necessary power and jurisdiction to decide the application. Consequently, I approach this application wearing the twin ‘hats’ as the Election Commissioner appointed to try the Slough Central Petition and as a deputy Judge of the Queen’s Bench Division appointed to try any costs issues arising out of the Petition.”

Mr Mawrey did not state how he had armed himself with such an ad hoc appointment, but it was not suggested by Mr David Holgate QC for the Conservative Party that he had not been duly appointed a deputy High Court judge. Mr Mawrey went on to conclude that he had the jurisdiction to consider the application – which he described as an application “for an order ancillary to a possible future application for payment of costs by a non-party” – in his capacity as the Election Commissioner. However, he added:

“If, however, I am wrong about that, there can surely be no doubt that the Queen’s Bench Division of the High Court has a residual jurisdiction to determine questions of costs in election matters. Consequently my appointment as a deputy judge of that Division should suffice to clothe me with jurisdiction if my principal conclusions are in error.”

Mr Mawrey decided to make the order sought, but in the course of his judgment, he expressed certain views about whether political parties should be expected to meet the costs of election petitions. This is what he said:

“… it would probably come as somewhat of a surprise to the general public that, where an official candidate of a national political party is the petitioner or the respondent to an election petition, that political party does not automatically assume responsibility for the costs of its own candidate in promoting or defending the petition and responsibility for the costs of the other side in the event of defeat. Given that the political party stands to gain or lose by the result of the petition, some degree of responsibility might be expected. This was especially the case in Slough where the success of Eshaq Khan in the 2007 election meant that the Conservatives had a small but controlling majority on Slough Council and his removal from office would (at least pending the by-election) return the authority into being a ‘hung council’.

Having received no submissions and having carried out no research on the subject, I simply express interest in the question whether courts in the past have considered the extent to which an officially adopted candidate might expose the political party who adopted him to a degree of vicarious liability for any misdeeds on his part in the course of seeking election. It is not to be thought that I am necessarily encouraging Ms Simmons to attempt to mine a new lode of jurisprudence but, given the nature of the submissions on her behalf by Mr Millar QC, the question might arise in some form were this matter to be taken further.”

As a result of Mr Mawrey’s order for disclosure, Penningtons produced a copy of part of the insurance policy. It showed that the cover was £100,000.00 for each election petition. The insurer’s consent had to be obtained before any legal expenses were incurred, and the policy stated that the insurer’s consent would be given if the insurer was satisfied by the insured that “there are reasonable prospects of achieving the remedy or result sought by the insured in the legal proceedings”. The insurer’s managing agents said that the insured under the policy was the Conservative Party or any of its official candidates or agents. Penningtons confirmed that following the service of the election petition, CCHQ had referred the chairman of the Slough Conservative Association to Penningtons, as a result of which Penningtons contacted Mr Khan, who instructed Penningtons to act for him. Penningtons also confirmed that during the conduct of the case, they had been in touch with Mr Khan, his official agent, the chairman of the Slough Conservative Association and CCHQ. What Penningtons described as “input” had been received from Mr Khan’s official agent, the chairman of the Slough Conservative Association and the National Conservative Party. However, Penningtons’ partner who had been handling the case was later to say that none of them had exercised “control” over the proceedings.

The application for costs. In the light of this disclosure, Ms Simmons decided to apply for an order that her costs of the petition be paid by the Conservative Party or the Slough Conservative Association. As I have said, they had not been parties to the petition. That was because sections 128(1) and (2) provide that the only persons who can present an election petition are electors and candidates at the election, and the only persons who can be respondents to an election petition are the person whose election is being questioned and the returning officer. Even though the Conservative Party and the Slough Conservative Association could not have been parties to the petition, it was thought that they had to be made parties to the petition in view of the procedural steps which had to be taken under the Civil Procedure Rules for an order for costs to be made against a non-party. Rule 48.2(1) of the Civil Procedure Rules provides:

“Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings –

(a)

that person must be added as a party to the proceedings for the purposes of costs only; and

(b)

he must be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.”

Accordingly, on 3 February 2009, Ms Simmons filed another application notice in the High Court. Again, it was on the standard form for application notices in the High Court, and it too asked for the application to be determined by the Election Commissioner. Mr Mawrey was being asked to order that the chairmen of the Conservative Party and the Slough Conservative Association, as representative respondents on behalf of the Conservative Party and the Slough Conservative Association respectively, be added as respondents to the petition “for the purposes of costs only”, and to order the Conservative Party and the Slough Conservative Association to pay Ms Simmons’ costs of the petition. Directions for the hearing of the application were also sought.

Following the service of the application notice, the Conservative Party’s solicitors wrote to Ms Simmons’ solicitors making the point that Mr Mawrey had been wrong to conclude that he continued to have jurisdiction as the Election Commissioner over issues ancillary to the petition such as the making of orders for costs, but that in any event Mr Mawrey’s conclusion that he continued to have jurisdiction as the Election Commissioner could not bind the Conservative Party as it had not been, and still was not, a party to the petition. However, since the Conservative Party’s solicitors accepted that the High Court had jurisdiction to make appropriate orders for the costs of election petitions, they would not object to the application being heard by the High Court. At that stage, they were not objecting to Mr Mawrey hearing the application in the High Court as a deputy High Court Judge, though they were concerned whether Mr Mawrey was “the right person” to hear the application in view of the comments he had made about whether political parties should meet the costs of election petitions. The position adopted by Ms Simmons’ solicitors was that it was appropriate for Mr Mawrey to hear the application since he had presided over the trial of the election petition to which the application for costs was ancillary, and that he could hear the application as both the Election Commissioner in the election court and as a deputy High Court Judge in the High Court. That – together with the facts that they asked for the application to be determined by the Election Commissioner while at the same time using the form appropriate to an application in the High Court – suggests that the application was being made both to the election court and to the High Court.

The correspondence in which these contentions were advanced was copied to Mr Mawrey, and on 9 March 2009 he e-mailed the parties as follows:

“For the benefit of all parties, as my judgment of October indicates, I am authorised in this matter to sit as a deputy Judge of the Queen’s Bench Division and will hear the application in both capacities. The parties will have to consider to whom they wish to appeal any adverse decision.”

Mr Mawrey did not say how he was authorised to sit as a deputy High Court Judge on the hearing of the application, though as I have said Mr Holgate was prepared to proceed on the assumption that he had been duly appointed a deputy High Court judge. However, what concerned the Conservative Party’s solicitors was that Mr Mawrey was saying that he would follow his earlier judgment on whether he had jurisdiction to consider the application as the Election Commissioner, even though the Conservative Party had not been a party to the application in which that judgment had been given.

In due course, the Conservative Party’s concern about Mr Mawrey hearing the application (in whatever capacity) transmuted into opposition to it. This followed advice which had been received from Mr Holgate. The Conservative Party wanted the application to be heard by a High Court Judge and not a deputy, whether Mr Mawrey or another deputy. On 16 March 2009, its solicitors wrote to the Administrative Court to that effect, enclosing Mr Holgate’s opinion, and asking for the matter to be considered by one of the judges on the rota for the trial of parliamentary election petitions. The opinion had made the point, though the letter did not, that it was not necessary for the judge who had tried the petition to hear the application, since the principal issue on the application would be whether the Conservative Party and the Slough Conservative Association could be said to have funded Mr Khan’s defence, and that was not something which had been addressed in the trial of the petition.

Copies of this letter were sent to Mr Mawrey and Ms Simmons’ solicitors. It prompted what is said to be a change of position on the part of Ms Simmons’ solicitors. That is because they wrote on the following day – 17 March 2009 – to the Administrative Court saying that Ms Simmons’ application to join the Conservative Party and the Slough Conservative Association to the petition for the purposes of costs only had only been made to the election court, and that it was therefore for the election court to determine whether it still had jurisdiction to decide issues of costs arising out of the petition.

Mr Mawrey responded to this letter on 17 March 2009. He re-affirmed the position which he had adopted in his e-mail of 9 March. He acknowledged that the Conservative Party and the Slough Conservative Association had not been parties to the application which had resulted in the judgment he had given on 9 October 2008, and he accepted that they could not be said to be bound by the decision he had made that he could decide issues of costs arising out of the petition both as the Election Commissioner in the election court and as a deputy High Court Judge in the High Court. He said that in the light of his previous decision, he would deal with the application, and he took the view that the comments he had made about whether political parties should meet the costs of election petitions did not mean that he had to recuse himself. As for the Administrative Court, one of its lawyers spoke to the Conservative Party’s solicitors on 17 March 2009. She said that the Administrative Court Office had taken the view that the High Court was not seized of the application, only the election court was.

In these circumstances, the Conservative Party now challenges the procedure which was being adopted by a claim of judicial review. The basis of the claim is that (a) Ms Simmons’ application was to be heard in the election court (which the Conservative Party argued had ceased to exist once Mr Mawrey had reported his findings on the petition to the High Court), and (b) Mr Mawrey would be considering the application both as the Election Commissioner (which he could not because the election court had ceased to exist) and as a deputy High Court Judge in the High Court (which he could not do either because the application was asserted by Ms Simmons’ solicitors and treated by the Administrative Court as having been made in the election court only). Appropriate declaratory relief is sought, as well as an order quashing Mr Mawrey’s decision to follow his previous judgment of 9 October 2008.

In addition, now that the Conservative Party is challenging the procedure which was being adopted, it is asking the court to determine the extent to which someone who was not a party to an election petition can nevertheless be ordered to pay the costs of someone who was a party to it. Section 156 sets out some circumstances in which a non-party can be ordered to pay such costs, and the Conservative Party says that section 156 contains the only circumstances in which a non-party can be ordered to pay such costs. And to the extent that Ms Simmons was relying on section 157(3) (which gives the High Court the “same powers, jurisdiction and authority” in connection with an election petition as if the petition were an ordinary action), a declaration is sought that these powers are not available to the Election Commissioner. Finally, because it was thought inappropriate for Mr Mawrey (in whatever capacity he chose to act) to determine the application, an order prohibiting his further involvement in the application is also sought.

Following the issue of the claim for judicial review on 8 April 2009, Mr Mawrey stayed the application until the claim had been determined. However, it should be noted that a couple of weeks before the issue of the claim, the Conservative Party’s solicitors had informed Ms Simmons’ solicitors that a claim for judicial review could be avoided if Ms Simmons’ application was made in the High Court with a substantive High Court Judge hearing the application.

The circumstances in which an order for costs can be made against someone who was not a party to the election petition would in the normal course of events have been decided by whoever determined the application which Ms Simmons issued on 3 February 2009. It is only because the court is being asked on this claim for judicial review to resolve the dispute about who can determine that application and in what capacity that the parties are asking the court to address the issue about the extent to which orders for the costs of an election petition can be made against non-parties to the petition. Although the court is therefore being asked to decide that issue by a sidewind, it would not be appropriate now to decline to decide the issue simply because it should be decided by whoever the court says has the jurisdiction to hear Ms Simmons’ application. After all, if the court decides that an order for costs cannot be made against the Conservative Party or the Slough Conservative Association, that will dispose of Ms Simmons’ application in its entirety.

The provisions about costs in the Act must be where the analysis begins. The governing provision is section 154(1), which provides:

“All costs of and incidental to the presentation of an election petition and the proceedings consequent on it, except such as are by this Act otherwise provided for, shall be defrayed by the parties to the petition in such manner and in such proportions as the election court or High Court may determine.”

Two points should be made about this provision. First, its manifest aim is to ensure that the legal costs of the successful petitioner or the successful respondent are likely to be met. As Mr Millar rightly said, that serves the wider purpose of encouraging people to bring meritorious petitions, and of discouraging people from bringing unmeritorious ones, because you know that you are likely to be reimbursed your legal costs if your case is a good one, and that your opponents are likely to be reimbursed their legal costs if your case is a bad one. Considerations of that kind are particularly important so long as the election petition is the only practicable method of exposing electoral fraud or malpractice.

Secondly, if your legal costs are likely to be met if you succeed on your petition or are successful in your defence of it, those costs will normally be met by one of the parties to the petition. I say “normally” only because of the words in section 154(1) “except such as are by this Act otherwise provided for”. The only provision in the Act which comes within that exception in that it provides for orders for costs to be made against someone who is not a party to the petition is section 156. It is unnecessary to set out the terms of that section. It is sufficient to state that it applies when corrupt practices have occurred without the knowledge or consent of the respondent to the petition, and the respondent has taken all reasonable means to prevent corrupt practices being committed on his behalf. In such a case, the person or persons proved to have been extensively engaged in corrupt practices, or to have encouraged or promoted extensive corrupt practices, may be ordered to pay the whole or part of the costs of the petition. There are ancillary provisions about what orders can be made if the costs cannot be recovered from such a person, and what orders for costs can be made if someone appears to have been guilty of a corrupt or illegal practice.

There is no question of the Conservative Party or the Slough Conservative Association having been involved in practices of the kind which could have engaged section 156. So by what route is it said on behalf of Ms Simmons that they can nevertheless be held accountable for her costs? The answer, so it is said, lies in the combination of two things: the undoubted jurisdiction of the High Court to order persons or bodies who are not parties to proceedings to pay the costs of those who are, and the fact that the election court has the same powers as a judge of the High Court.

As we have seen from rule 48.2(1) of the Civil Procedure Rules, the power of the High Court to make orders against non-parties for costs derives from section 51 of the Senior Courts Act 1981 (“the 1981 Act”). That provides, so far as is material:

“(1)

Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in –

(a)

the civil division of the Court of Appeal;

(b)

the High Court; and

(c)

any county court,

shall be in the discretion of the court.

(3)

The court shall have full power to determine by whom and to what extent the costs are to be paid.”

In Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965, the House of Lords held that the language of section 51 of the 1981 Act was wide enough to empower the court to order a non-party to proceedings to pay costs. Prior to then, it had been thought that some limitation had to be put on the generality of the words, and except for orders against solicitors (which were understood to be an exercise by the court of its inherent jurisdiction over solicitors as officers of the court) that limitation was that the court could only order costs to be paid by parties to the litigation.

However, the power derived from section 51 of the 1981 Act to order a non-party to pay costs applies only to proceedings in the courts referred to in section 51 of the 1981 Act. Although the High Court is one of those courts, it is not suggested that an election court when convened is part of the High Court. How, then, is the power derived from section 51 to order a non-party to pay costs to be conferred on an election court? The answer, says Mr Millar, is by those provisions in the Act which confer on the election court the same powers as a judge of the High Court. Thus, section 123(2) provides in relation to an election court trying a parliamentary election petition, so far as is material:

“The election court has, subject to the provisions of this Act, the same powers, jurisdiction and authority as a judge of the High Court … and shall be a court of record.”

The petition which Mr Mawrey tried was a local election petition, but in relation to an election court trying a local election petition, section 130(5) provides:

“The election court has for the purposes of the trial the same powers and privileges as a judge on the trial of a parliamentary election petition.”

Indeed, as mentioned earlier, when the High Court is considering an election petition, it has the same powers as when an ordinary action is being tried (which must include the power to order non-parties to pay costs). That is provided by section 157(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.”

Accordingly, it is said that the election court can order non-parties to an election petition to pay costs because it has all the powers of a judge of the High Court, and those powers include the power under section 51 of the 1981 Act to order non-parties to pay costs.

The words “[s]ubject to the provisions of this or any other enactment and to rules of court” in section 51(1) of the 1981 Act are said by Mr Holgate to be problematic for that analysis. The court’s power to order costs under section 51 of the 1981 Act is expressly qualified by the provisions of any other enactment and by rules of court. The provisions of any other enactment include sections 128(1) and (2), and rules of court include rule 48.2(1) of the Civil Procedure Rules. The latter provides that a non-party can only be ordered to pay costs if made a party to the proceedings, and the former provide that only certain persons are eligible to be parties to an election petition (and they do not include the Conservative Party or the Slough Conservative Association). If sections 128(1) and (2) prevent the Conservative Party and the Slough Conservative Association from being made parties to the election petition, the condition for non-parties to be liable for costs laid down in rule 48.2(1) cannot be satisfied. For that reason alone, it is said that neither the Conservative Party nor the Slough Conservative Association can be ordered to pay Ms Simmons’ costs.

I cannot go along with that argument. Rule 48.2(1) is simply a procedural device to enable non-parties to participate in any application for costs against them. It is a mechanism to enable them to be provided with the documents relevant to the application and to make representations to the court. If the election court was intended to have the power to order non-parties to pay costs, it would be odd if that power could not be exercised because the procedural device used in the High Court was inappropriate for the election court. Indeed, if Mr Holgate’s argument was right, orders for costs against non-parties could not be made at all – not even under section 156 which specifically permits orders for costs against non-parties in the limited circumstances it describes. The procedural device in rule 48.2(1) is unnecessary for applications for costs against non-parties pursuant to section 156 because it has its own in-built procedure for enabling non-parties to participate in the application. Section 156(5) requires the respondent to the application to be given “an opportunity of being heard by counsel or solicitor and examining and cross-examining witnesses to show cause why the order should not be made”.

But it does not end there. The provisions of any other enactment which section 51 of the 1981 Act is expressly qualified by include sections 154 and 156. Their effect – at first blush at any rate – is that the only circumstances in which non-parties to an election petition can be responsible for costs are those set out in section 156. Those are provisions to which the power to order non-party costs derived from section 51 of the1981 Act is subject. Since it is not appropriate to make an order against the Conservative Party or the Slough Conservative Association under section 156, it follows that for that reason the Conservative Party and the Slough Conservative Association cannot be ordered to pay Ms Simmons’ costs. The same applies to the qualifying words “subject to the provision of this Act” in sections 123(2) and 157(3). The provisions of the Act which sections 123(2) and 157(3) are expressly qualified by include sections 154 and 156. Those are provisions to which the powers given to the election court on a parliamentary election petition by section 123(2) – and therefore the powers given to the election court on a local election petition by section 130(5) – and to the High Court on an election petition by section 157(3) are subject.

This approach is in line with the decision of the Court of Appeal in Ahmed v Kennedy [2003] 1 WLR 1820. The issue in that case was whether the short time permitted by the Election Petition Rules 1960 for serving a particular notice and accompanying documents could be extended by the general provisions in the Civil Procedure Rules which permit extensions of time, even though the Election Petition Rules expressly prohibited an extension of time. The Court of Appeal held that the time could not be extended because when it came to their hierarchy, the Election Petition Rules had primacy over the Civil Procedure Rules. In reaching that conclusion, the Court of Appeal accepted the argument at [21] that “the Act and the Rules made under it together comprise a discrete and purpose-built statutory scheme”. It would therefore not be right to add to the statutory scheme a power to order non-parties to pay costs in circumstances not covered by the scheme.

Mr Millar says that, unlike the particular rule in the Election Petition Rules relating to an extension of time which the Court of Appeal was considering, sections 154 and 156 do not expressly prohibit orders for costs against non-parties being made otherwise than in the circumstances set out in section 156. That is true, but the effect of the words “except such as are by this Act otherwise provided for” in section 154(1) is to limit the circumstances in which non-parties can be responsible for costs to the circumstances set out in any provision in the Act, and the only provision in the Act which does that is section 156. I appreciate that statutory provisions should be construed if possible so as to be consistent with legal policy. That includes enabling litigants to be assured that if they are successful they will recover their legal costs, if necessary against non-parties to the litigation in appropriate circumstances if the party against whom the order for costs is made defaults. I appreciate also that statutory provisions should be construed if possible to give effect to the presumed intention of Parliament, and Parliament may be presumed to have wanted litigants not to be deterred from bringing meritorious election petitions by the fear that they will not recover their costs. But these considerations simply cannot overcome the plain words of the exception in section 154(1), to say nothing of the words “[s]ubject to the provisions of this or any other enactment” in section 51(1) of the 1981 Act and the words “subject to the provisions of this Act” in sections 123(2) and 157(3).

Mr Millar took me through the legislative history of the statutory provisions governing elections. He demonstrated that many of the provisions of the Act had been lifted wholesale from their statutory predecessors. The legislative plan was to make it unnecessary to provide expressly for the procedure to be adopted when election petitions were litigated, and the device which was used was to incorporate the provisions from elsewhere. Thus, section 123(2) is modelled on section 29 of the Parliamentary Elections Act 1868, section 130(5) is based on section 92(6) of the Municipal Corporations Act 1882, and section 157(3) is modelled on section 100(4) of the Municipal Corporations Act 1882. And when it comes to the question of the costs of an election petition, the modern law can be traced back to the 19^th century statutes as well. Thus, section 154(1) is modelled on section 41 of the Parliamentary Elections Act 1868 and section 98 of the Municipal Corporations Act 1882, and section 156 is based on section 44 of the Corrupt and Illegal Practices Procedure Act 1883 and section 29 of the Municipal Elections (Corrupt and Illegal Practices) Act 1884. I found this history interesting, but I did not see how it casts such a different light on the modern provisions as to affect the result of the case.

Finally, I return to the mischief which Mr Millar says should be avoided. The election petition is the only real weapon to combat electoral fraud in general, and registration and postal voting fraud in particular. Yet electors and unsuccessful candidates may be discouraged from bringing meritorious petitions if they know that, in the event of an order for costs in their favour not being met by an unsuccessful respondent, they will not be able to recover their costs from, say, a person or body which funded the unsuccessful defence to the petition, however unmeritorious that defence may have been. But it would be unwise to take that too far. Where the unsuccessful candidate is the official candidate of one of the major political parties, their petition will invariably be funded by the political party for whom they are standing. A major political party is less likely than an individual candidate to be put off funding an election petition simply because it may not be able to recover its costs later on. All the more so if there is a convention – which Mr Millar told me the Labour Party had hitherto thought there was – that if the defence of an unsuccessful respondent to an election petition has been funded by a political party, the political party will pay the costs of the successful petitioner. In any event, though, if it is thought that a political party which funds the costs of the defence of an unsuccessful respondent should pay the costs of the successful petitioner, that cannot be achieved by the courts grafting such a power on the Act when the language of the Act prevents that from being done. It is a matter for Parliament to legislate on, in the same way that if electoral fraud is to be combated, the real remedy, as Mr Mawrey said at the end of his judgment on the petition and in his report to the High Court, was to introduce proper measures which enables such frauds to be detected.

Ms Simmons is said to face another and altogether different problem. It will be recalled that section 130(5) gives a local election court the same powers and privileges as a judge on the trial of a parliamentary election petition (whose powers by section 123(2) are the same as a judge of the High Court). Let us assume that despite the qualifying words in section 51(1) of the 1981 Act and sections 123(2) and 157(3) those powers do confer on the local election court the power to order a non-party to pay costs. It will be recalled that the powers in section 130(5) are conferred on the election court only “for the purposes of the trial”. If, as Mr Holgate contends in the light of Muldoon, the trial of a local election petition is over when the petition has been determined and any report submitted to the High Court, the election court is said no longer to have the powers of a judge of the High Court, including the power to order a non-party to pay costs. I am not convinced about that. The words “for the purposes of the trial” are unlikely to have been intended to create a cut-off point when the powers of the election court ceased to exist. Rather they give the election court the power to do that which a judge on the trial of a parliamentary election petition (and hence a judge of the High Court) can do in the course of a trial. However, for the reasons I have hitherto given, I have concluded that the extent to which third party orders for the costs of an election petition can be made are limited to the circumstances set out in section 156, and it follows that an order for the payment of Ms Simmons’ costs of the petition cannot be made against the Conservative Party or the Slough Conservative Association.

In the light of that conclusion, the remaining issues on this claim for judicial review become academic. However, both sides asked me to address the remaining issues even if I held that the Conservative Party and the Slough Conservative Association could not be ordered to pay Ms Simmons’ costs of the petition – if only because the question whether the role of the Election Commissioner would have been over is one which they regard as important, and could provide, in the light of the words “for the purposes of the trial” in section 130(5), an alternative basis for saying that an order for costs against the Conservative Party or the Slough Conservative Association could not be made. I have been reluctant to do that. Any opinion I expressed – on that issue at any rate – would be an obiter pronouncement on the correctness of views unequivocally expressed by the Court of Appeal some time ago. Such an opinion would not be capable of being the subject of appeal itself in the absence of a successful appeal from this judgment. Indeed, in R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450, Lord Slynn said at p.457A-B:

“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

However, the issue whether the Election Commissioner still has a role to play will cease to be academic if there is a successful appeal from this judgment, and I suspect that the Labour Party will want to appeal if it can. In the circumstances, I have decided to state my provisional conclusion on this issue, giving my reasons for that conclusion in brief.

The completion of the election court’s role. In Muldoon, Donaldson MR, giving the judgment of the Court, said at p. 694 F-G:

“Most courts continue in existence over a period of time and deal with many different and separate proceedings. Questions arise as to whether and to what extent the court has finally disposed of each proceeding or issue arising in such a proceeding. When it has, the judge who presided is said to have become functus officio, quoad that issue or those proceedings. An election court, or at least one concerned with a petition questioning a local election, is somewhat different. It is brought into existence by the appointment of a barrister to constitute that court and the trial of that petition is the life-work of the court. When that trial has been concluded in accordance with section 125 of the Act of 1949, not only is the barrister functus officio but the court ceases to exist.”

Section 125 of the Representation of the People Act 1949 is the predecessor of section 145, which is headed “Conclusion of trial of local election petition”. Section 145(1) provides:

“At the conclusion of the trial of a petition questioning an election under the local government Act, the election court shall determine whether the person whose election is complained of, or any and what other person, was duly elected, or whether the election was void, and the determination so certified shall be final to all intents as to the matters at issue on the petition.”

Section 145(2) requires the election court “forthwith” to “certify in writing the determination to the High Court”, and sections 145(3) and (4) identify the circumstances in which the election court must or can “at the same time” report various matters to the High Court. If, as Mr Holgate argues, the trial was concluded in accordance with section 145 on 18 March 2008 when Mr Mawrey (a) gave judgment determining whether Mr Khan had been duly elected and (b) submitted his report to the High Court, how could the election court have had any role to play thereafter?

Mr Millar argues that the passage in Muldoon about the election court ceasing to exist was obiter. In Muldoon, the Election Commissioner, Mr Anthony Cripps QC, had purported to explain many months later what he had meant in an order for costs which he had made when handing down his judgment on the election petition. It was argued that he had had the power to do that under the slip rule (a power conferred on the High Court by Ord. 20 r. 11 of the Rules of the Supreme Court), which was a power which had been conferred on him by the predecessors of sections 130(5) and 123(2), namely sections 115(6) and 110(2) of the Representation of the People Act 1949. The Court of Appeal held that what Mr Cripps had purported to do went beyond what the slip rule permitted, and that for that reason his remarks had been “wholly without effect”. What Donaldson MR went on to say at pp. 697F-698A was as follows:

“It is not therefore necessary to consider whether on that day he was sitting as ‘Mr Commissioner Cripps’ in or as a local election court or whether his remarks were those of ‘Mr Anthony Cripps QC’ speaking under a misapprehension as to his capacity. Suffice it to say that although by section 115(6) of the Act of 1949 a local election court has ‘for the purposes of the trial … the same powers and privileges as a judge on the trial of a parliamentary election petition’ (our emphasis) which would import the High Court slip rule power, it is probable that these powers are inapplicable once the trial has been concluded by the formalities prescribed by section 125 and that thereafter slips must be corrected by the High Court under the powers contained in section 137(3). However, even if Mr Cripps had been appointed as a deputy High Court judge and invited to exercise the powers of the High Court, for the reasons which we have given, he could not properly have ‘corrected’ the order which he had made in a wholly different capacity.” (Emphasis supplied)

The reference to section 137(3) of the 1949 Act was a reference to the predecessor of section 157(3).

Two points can, I think, properly be made about this passage. First, although the court had previously expressed the view that the election court ceases to exist once the petition had been determined and any report submitted to the High Court, the appeal was not dismissed for that reason. It was dismissed because Mr Cripps, in whatever capacity he had been acting, could not have done under the slip rule what he had purported to do. Secondly, it did not necessarily follow that once the formalities prescribed by section 145 had been completed, the election court could not exercise such powers as it had over the proceedings. It was only “probable” that it could not.

Having said that, whether or not the Court of Appeal’s conclusion on this issue was obiter, the Divisional Court whose judgment was the subject of the appeal to the Court of Appeal had reached the same view, and that view had been part of its ratio decidendi. The Divisional Court’s judgment is reported at [1984] 1 QB 68, and at p. 80B-E Robert Goff LJ (as he then was), giving the judgment of the court, said this:

“We accept that the powers of a judge of the High Court include the power to operate the slip rule. However, there must be doubt whether this power was conferred on Mr Cripps under section 115(6) of the Act for the purpose in question. For, once he had made his order, the election court which consisted of him was functus officio and had ceased to exist. Of course, where a High Court judge sitting in the High Court exercises his power under the slip rule to correct accidental errors, he can do so because, although his order has been drawn up, the High Court has not ceased to exist. He can therefore exercise the jurisdiction under R.S.C., Ord. 20, r.11, which is vested in the High Court as such; indeed, it appears to us, if in any particular case the trial judge was not available (for example, because he had died) after the drawing up of the order, another judge of the High Court could exercise the power of the High Court under the slip rule to correct an accidental error. It appears that when an election court has ceased to exist the exercise of powers under the slip rule to correct accidental errors should be made not by the barrister who formerly constituted the election court, but by the High Court by virtue of its powers under section 137(3) of the Act of 1949 …”

Robert Goff LJ then went on to deal with whether what Mr Cripps had purported to do could be described as coming within the slip rule if the court was wrong in the view it took of when he could no longer exercise such powers as he had.

With such distinguished judges taking the view they did about the effect of what is now section 145, I am very hesitant to express a note of discord. But what Mr Mawrey said about the issue in his judgment of 9 October 2008 seems to me to have considerable force. At [23], he said that section 145 “merely provides for what the Commissioner must do at the conclusion of the proceedings. It prescribes the determination he must make (or expressly decline to make).” He did not think that it mandated the “radical conclusion” that once the things which the election court had to do at the conclusion of the trial had been done, the election court ceased to exist so that it, and the Election Commissioner which comprised it, was functus officio.

That is a conclusion which I would have reached but for what was said in Muldoon. At first blush, section 145 merely identified the formalities which must be completed at the end of the trial of an election petition. However, the conventional wisdom is that I am bound by previous decisions of the Divisional Court, especially ones of long standing, so even if the Court of Appeal’s remarks about when the election court ceases to exist were obiter, I could not have given effect to the view I would have formed about the effect of section 145. In those circumstances, it would not be a productive use of the court’s time to examine the other statutory provisions – sections 156, 160(1), 163(1), and 174(1) – which Mr Millar says are inconsistent with the election court ceasing to exist once it has done the things which section 145 requires it to do. Nor is it profitable to examine the decision of the Court of Common Pleas in Marshall v James (1874) LR 9 CP 702, the Taunton Election Petition case, which Mr Millar says shows that orders for costs can be made after the determination of an election petition has been certified. The order for costs in that case was made at the same time as the determination, and the issue in the case was whether that order could be enforced and taxed despite the dissolution of Parliament before the judge’s certificate and report had reached the Speaker. That turned on whether the order for costs took effect when it had been made or when the report containing it had been received. The court held that it had taken effect when it had been made. That could not have meant that the order for costs had been made after the determination of the petition had been certified.

Mr Mawrey’s continuing role. The ending of the existence of the election court means that Ms Simmons’ application (assuming it to have been made to the election court) cannot proceed further. But for the conclusion I have reached on the power to order the Conservative Party and the Slough Conservative Association to pay her costs, that application would have had to be made to the High Court. Whether the application would have been heard by a High Court judge or a deputy High Court judge would have been for the judges on the rota for the trial of parliamentary election petitions to decide.

If the judges on the rota had decided that the application could be heard by a deputy High Court judge, the question would then have arisen whether Mr Mawrey should have heard it. If I were to decide that, it would have to be determined on the footing that, contrary to what I have decided in this judgment, there is power to order non-parties to pay costs, since the parties were content for that issue to be decided by the High Court on this claim for judicial review. Moreover, the fact that Mr Mawrey has said that he would follow his earlier judgment on whether he had jurisdiction to consider the application as the Election Commissioner in the election court is also irrelevant, because if he was ever to determine the application, that would be because the question of the continuing role of the election court had been finally decided. Accordingly, the only relevant question is whether he has expressed any views which go to the merits of the application which might make him an inappropriate person to hear the application.

That is not a topic which I am prepared to address. It becomes a live issue only if

I leave it to the parties to decide whether they can agree an appropriate order which reflects the terms of this judgment, but at present I think that all I need to do is to declare that an order for the payment of Ms Simmons’ costs of the petition cannot be made against the Conservative Party or the Slough Conservative Association. I wish to spare the parties the time and expense of attending court when this judgment is handed down, and I leave it to them to decide whether they are content with an order to that effect. If they are not, they should notify my clerk of that within 14 days of the handing down of this judgment, and I will decide the appropriate order to make without a hearing on the basis of any written representations which are made. At present, I see no reason why Ms Simmons should not pay the Conservative Party’s costs of this claim, to be the subject of a detailed assessment if not agreed. If any of the parties wish me to consider some other order for costs, they should notify my clerk of that within 14 days of the handing down of this judgment, and I will make such order for costs as I think is appropriate without a hearing, again on the basis of any written representations which are made. If Ms Simmons wishes to apply for permission to appeal, her solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that application as well without a further hearing. However, her time for filing an appellant’s notice will still be 21 days from the handing down of this judgment.