Finch & Anor v Richardson

On 4 June 2008 the Aldermanic Election for the Ward of Coleman Street in the City of London ("the election") was held. There were two candidates, the First Claimant, and Mr Richardson. The votes cast were 126 for the First Claimant and 102 for Mr Richardson. The First Claimant was accordingly elected. The Second Claimant was the agent of the First Claimant.

On 3 October 2008 the Claimants issued a claim form seeking relief under the Representation of the People Act 1983 ("the Act") ss.86 and 167 from the consequences of (a) certain election expenses being incurred by or on behalf of the First Claimant in excess of the limit provided by for the Act and (b) an omission to make the necessary statements and declarations in relation to those expenses as required by the Act.

There are two relevant provisions for relief, under each of which this application is made: s.167 relates to illegal practices generally (including expenditure in excess of the permitted amount) and s.86 relates to failures as to returns and declarations.

Section 167 of the Act provides:

"(2)

If it is shown to the court by such evidence as to the court seems sufficient…

(a)

that any act or omission of any person would apart from this section by reason of being in contravention of this Act be an illegal practice,…

(b)

that the act or omission arose from inadvertence or from accidental miscalculations or from some other reasonable cause of a like nature, and in any case did not arise from any want of good faith, …

and under the circumstances it seems to the court to be just that either that or any other person should not be subject to any of the consequences under this Act of the act or omission, the court may make an order allowing the act or omission to be an exception from the provisions of the Act making it an illegal practice,… and upon the making of the order no person shall be subject to any of the consequences under this Act of that act or omission".

S.86 of the Act provides that a candidate or his election agent may apply for relief under that section to the High Court and that:

"(2)

Relief under this section may be granted-

(a)

to a candidate, in respect of any failure to deliver the return and declarations as to election expenses, or any part of them, or in respect to any error or false statement in them; or

(b)

to an election agent, in a respect of the failure to deliver the return and declarations which he was required to deliver, or any part of them, or in respect to any error or false statement in them.

(3)

The application for relief may be made on the ground that the failure, error or false statements arose….

(d)

by reason inadvertence or any reasonable cause of a like nature and not by reason of any want of good faith on the applicant's part.

(4)

The court may …..

(b)

on production of such evidence of the grounds stated in the application and of the good faith of the application, and otherwise, as it considers fit, make such order for allowing an authorised excuses for the failure, error or false statement as it considers just".

The Claim Form was served on the Lord Mayor of London and Mr Richardson. As required by the Act it was also brought to the attention of the Director of Public Prosecutions. The Crown Prosecution Service has written to say that the Director did not intend to be present at the hearing, and he has made no representations to the Court.

On 28 October 2008 the matter came before this Court (Lloyd Jones and King JJ). Submissions were made on behalf of the Claimants and on behalf of Mr Richardson. They were represented then, as they were before us, by Mr Millar QC and Mr Deane, respectively.

On 28 October an Order was made joining Mr Richardson as a defendant to the proceedings, and adjourning the matter to be re listed, as it has been before us. Orders were also made for the First Claimant to file a statement producing certain documents. It is to be noted that Mr Richardson did not present a petition in this case, and the time for presenting one had expired long before the Claimants made this application.

At the close of the hearing before us, we made an Order that the Claimants be relieved from all consequences of :

We stated then that we would give our reasons in writing, as we now do.

The statements referred to in the Order are a statement dated 9 October 2008 by the First Claimant, a statement dated 8 October 2008 by the Second Claimant, a second witness statement by the First Claimant dated 7 October 2008 and a third witness statement of the First Claimant dated 12 November 2008. The second statement of the First Claimant had been made in response to a statement by Mr Richardson, and the statement dated 12 November 2008 was made in compliance with the order of this court made on 28 October 2008.

On 20 June 2008 the Second Claimant signed a return of expenses as required by s.81 of the Act. He gave the "amount of expenses incurred" as £145.38. This was accompanied by an invoice from Liberty International PLC ("Liberty") addressed to the First Claimant in respect of stationery. The invoice was for a total of £130.48 for paper and envelopes. The First Claimant became chairman of Liberty in July 2005, amongst other responsibilities and positions that he holds. The difference between £145.38 and £130.48 is made up of items to the value of less than £20.00 for which no invoice or receipt is required. Also on 20 June 2008, the Second Claimant made a declaration pursuant to s.82 of the Act to the effect that the return of the election expenses was complete and accurate as required by law.

It is common ground that the permitted election expenses were a total of £305.26 in accordance with the Representation of the People (Variation of Limits of Candidates Election Expenses) (City of London) Order 2005. That is made up of 5.2 pence for each of the 755 electors, namely £39.26, plus a fixed amount of £266.

As already mentioned, the declared expenditure of £145.38 is made up of paper and stationery in the sum of £130.48, and a further sum £14.90. This sum was in respect of telephone calls the First Claimant made, and use of electricity, and one journey which he made from Wimbledon to Bank. He states, and it is not in dispute, that he did not use any postage. If these figures had been complete, then, given the limit of election expenses at £305.26, there would have remained at his disposal a further possible expenditure of £158.88.

The First Claimant qualified as a solicitor in 1969, and he has spent his professional life as a solicitor. First he was working for, and then he became a partner in, the firm now known as Linklaters. He became a senior partner, Head of Commercial Real Estate. He was a member of the firm's governing policy committee until shortly before his election as Sheriff. He left the firm in July 2005 to become Chairman of Liberty, and he remains a consultant both to the firm Linklaters and to Liberty.

As part of his employment with Liberty the First Claimant was required to be based at 40 Broadway, London, SW1. He was provided by Liberty with a car and driver for his exclusive use on a five days a week full time basis, in addition to secretarial support. His commitments to Liberty left him free to continue with a number of other commitments, both charitable and otherwise, with the agreement and knowledge of Liberty. As at June 2008 he estimates that he was attending approximately 150 meetings per year. Mr Adams was his driver, and he was employed wholly by Liberty. At the First Claimant's request, Mr Adams carried out a number of tasks for the election, including delivering election address documents to the electorate and "Vote Today" cards to the non-solicitor members of the electorate, and a small number of letters. Mr Adams also drove the First Claimant to five meetings. No money was paid by the First Claimant to Mr Adams or to Liberty, and no overtime was paid to Mr Adams by Liberty as a result of this work. It was largely carried out during his normal working hours.

Part II of the Act contains provision relating to services provided free of charge to a candidate. S.90C(2) provides that where this section applies, an amount of election expenses determined in accordance with this section is to be treated as incurred by the candidate, and the candidate's election agent is required to make a declaration of that amount, unless it is not more than £50. S.90C(1) provides that, where services are provided for the use or benefit of the candidate free of charge, and are made use of by the candidate in circumstances such that, if any expenses were to be (or are) actually incurred by the candidate in respect of their use, there would be (or are) election expenses incurred by him.

That provision was inserted into the Act by the Political Parties, Elections and Referendums Act 2000, s.134, which was brought into force on 1 July 2001. It represented a significant change in the law in relation to election expenses. Before that services provided free of charge to the candidate, at the expense of a third party, were not treated as incurred by the candidate and did not have to be declared in accordance with s.81 and 82.

The services provided by Mr Adams fell within s.90C of the Act.

In his first witness statement, the First Claimant calculated that Mr Adams had spent 10 hours and 45 minutes on his election campaign over ten separate days. He made the calculation with the assistance of Mr Adams, who kept a detailed diary. The First Claimant did not himself consult this diary before he made his first witness statement. The First Claimant calculated the value of this work by taking Mr Adams's salary, dividing it by the number of contractual hours, and thus arriving at an effective hourly rate of £15.31. Accordingly, in his first witness statement, he calculated the value of the time spent by Mr Adams on the election campaign at £149.27. He added an estimate of the commercial value of the provision of the car at £93.49. One hour of the time spent by Mr Adams was voluntary, during his unpaid lunch breaks. Figures for petrol and parking charges were added.

The First Claimant thus arrived at the value of the car and of Mr Adams's services provided free of charge by Liberty at £252.62. This figure ought to have been, but was not, declared as an election expense. It followed that, on the assumption that this figure was correct, the total resulting expenditure exceeded the limit of election expenses by a sum of £92.74.

While the sums themselves were subsequently the subject of revision, there has been no dispute that the method of calculation was carried out correctly in accordance with section 90C (4) and (5).

It is common ground that, as a consequence of these matters, the Claimants are guilty of illegal practices, contrary to ss.76 and 84.

Section 76(1B) provides that:

"Where any election expenses are incurred in excess of a maximum amount specified…any candidate…who

a)

incurred… the election expenses, and

b)

knew or reasonably ought to have known that the expenses would be incurred in excess of that maximum amount,

shall be guilty of an illegal practice".

S.84 of the Act provides that (subject to the provisions of s.86, which includes provision of relief):

"…..if a candidate or election agent fails to comply with the requirements of section 81 or section 82…he shall be guilty of an illegal practice."

The First Claimant is very experienced. He had previously been elected as Alderman for the Ward of Coleman Street in November 1991 and was subsequently re-elected unopposed in 2001. He had served in the office of Sheriff of the City of London from 1999-2000 and as Lord Mayor of the City of London from 2003-2004. Nevertheless, he stated in his first witness statement, that he had not appreciated that, though he was not personally paying for his driver, he was still bound to include this expense in his returns. He stated that he had inadvertently made an error in failing to include the expense in his return, and that there had not been any want of good faith on his part.

The First Claimant explained, by reference to documents which he exhibited to his first witness statement, that in the documents issued to prospective candidates at the election in question (described as a nomination pack), there is general guidance for candidates and agents, but no guidance as to what is or is not an election expense. He notes that, in this respect, the documentation differs from that in use for Parliamentary elections and local government elections. In that documentation, which is approved by the Electoral Commission, a candidate and his agent are prompted, at para A2.2, to provide information which includes 'declarations of value in relation to notional expenditure of more than £50'.

The guidance for the City of London is issued in a document entitled 'Wardmote Book'. The current edition was dated 15 December 2006. Under the heading Election expenses there is the following;

"'Election expenses' means expenses incurred at any time in respect of certain specified matters that are used for the purposes of a candidate's election after the date when that person becomes a candidate at the election. The specified matters include: advertising of any nature; unsolicited material addressed to the electors; and transport costs….'

There are footnotes referring to the Act, as amended, but none refers specifically to section 90C.

The First Claimant stated that immediately on being informed that there was a possible problem with his return of expenses, he took appropriate legal advice and instructed solicitors to issue these proceedings and serve the appropriate notices on the other candidates and bodies. There has been no challenge to this account of how he came to make this application.

The Second Claimant in his witness statement states that he was not aware at the time that the First Claimant had been provided free of charge with a car and driver for the delivery of letters and election addresses and to transport him to any meetings. He accepted that he made a mistake, but stated that this was inadvertent and not from any want of good faith.

In his witness statement of 22 October 2008 Mr Richardson asked the court not to grant the relief sought. He advanced legal arguments, and went on to refer to a number of items which he said represented election expenses which had not been declared by the claimants, in addition to those in respect which the claimants seek relief. In his second witness statement the First Claimant addressed each of those matters in turn, explaining why the matters in respect of which he does apply for relief are the only ones in respect of which he requires relief. On 28 October 2008 the court directed that the scope of the inquiry before us should be limited to the matters raised in the Claimant's applications for relief.

In his third witness statement, of 12 November 2008, the First Claimant produced, not only the diary of Mr Adams, which he had not previously looked at, but also a vehicle log showing the movements of his car at the relevant time. This was a document the existence of which he had not been aware of at the time he made his first witness statements. The data covers only a part of the relevant time. Having considered these additional documents, the First Claimant recalculated the timings, and arrived at a time spent by Mr Adams on the election for which Mr Adams was paid by Liberty of fourteen hours and forty eight minutes (in addition to forty one minutes of unpaid time). As recalculated, the total undeclared expenditure is £368.59. On this basis the amount by which the First Claimant exceeded the limit on expenditure was £208.71.

Again, there is no issue as to the calculations, in their revised form, put forward by the First Claimant. Mr Deane takes the point that, but for the intervention by Mr Richardson, the revised figures would never have become known to the court.

Mr Deane applied for permission to cross examine the Claimants. This was not opposed. He cross examined the First Claimant for nearly half an hour, and the Second Claimant for a shorter period. The questions were directed to eliciting the extent of experience of the Claimants, in the case of the First Claimant, including his experience of the law in general, and in the case of both Claimants their experience of elections. It did not appear to us that the questions brought out any information material to the questions that we have to decide which adds significantly to the information set out above, which was included in the witness statements. It was not suggested to either Claimant that he had acted in bad faith or with want of good faith.

The essential submission for Mr Richardson is primarily one of law: that ignorance of the law cannot excuse inadvertence within the meaning of the sections, at least when committed by a professional person. Alternatively, he submits that the experience of the Claimants was such that their ignorance of the law cannot be characterised as inadvertence.

Mr Deane based his submissions upon a statement in the Scottish case of Smith and Sloane v MacKenzie (1919) SC546. In that case there was an application for relief under provisions of the Corrupt Illegal Practices Prevention Act 1883, which are for practical purposes indistinguishable from the provisions referred to above in the Act. The application for the candidate related to an illegal practice consisting in the failure to send in the standard declaration. The application on behalf of the agent related to two matters. He had sent in accounts which were not properly itemised or supported by vouchers, and he too had failed to send in the declaration required by the statute.

The passage relied on is in the judgment of Lord Guthrie, at p549, and reads as follows;

"Similar questions have been considered in the Courts of England and Scotland, and the decisions show that the Courts have kept three things in view in deciding whether illegal practices can be excused on the grounds of inadvertence coupled with good faith. The first question the Court is accustomed to ask is: What kind of person is the applicant? If he is he is a professional man, ignorance of law can not excuse his inadvertence, except, it might be, the case of ambiguity in a statute. He is bound to know that the whole of these matters are regulated by Act of Parliament. He has easy access to the Acts of Parliament and to manuals on election subjects and he is accustomed to consult such works. Further, if the applicant, although not a professional lawyer, has previous election experience, the fact that he may have forgotten that experience can not excuse his inadvertence. The second question the Courts asks is: What is the nature of the illegal practice? If it is something which the candidate or his agent had an interest to do, or which might affect the return of the candidate, the practice will be highly suspect. But if, on the other hand, there appears to be no reason whatever, personal or otherwise, why an illegal practice should have been followed, then the presumption is that what was done was done in good faith and merely from negligence. The third question is: What attitude has the applicant taken up when the mistake was discovered? Has it treated it lightly or defiantly? Or has it done everything he possible could to put it right?'

Mr Deane also referred to the Borough of Walsall Case (1892) 4 O'M. & H.123. In that case a petition had been presented, and an application for relief was made in respect of an illegal practice in that context. Hawkins J stated:

"anyone who reads the Act of Parliament must know that the use of such cards is an infringement of the Act, and although a man may not know the law because he has not taken the trouble to make himself acquainted with it, no one can call that 'inadvertence' within the meaning of section 23".

The statute in question in that case was again the Corrupt and Illegal Practices Prevention Act 1883. By s.16 of that Act payment for certain items, including 'marks of distinction' was prohibited. The court held that the cards in questions in that petition fell within that prohibition.

Mr Deane takes no point on the attitude taken up by the claimants in this case. That is the third question referred to by Lord Guthrie. As to the second question referred to by Lord Guthrie, the only point taken is that the delivery of the documents by Mr Adams in this case must have affected the result. That was their purpose. The First Claimant anticipated this point, and states, which is not in dispute, that he could have arranged for the delivery of the documents without the services of Mr Adams or anyone else who was being paid. For example he could have done it by himself, or with the assistance of members of his family who were available to do it. It was not suggested that he could not, or would not, have done this. The central issue before us was the first question by Lord Guthrie.

Mr Millar submits Mr Deane's submission is erroneous in point of law. It is to be noted that the comments of Lord Guthrie in relation to the first question had no application to the case that he was considering. The applicants before him were two miners with no previous experience. They were not lawyers or persons experienced in elections. Although the other members of the court expressed agreement with Lord Guthrie, they do not include in their judgments any reference to this particular point.

The meaning of the word 'inadvertence' in this context, and in particular the question whether ignorance of the law may be 'inadvertence', has been considered by Kelly LJ and Higgins J in the Queens Bench division of Northern Ireland in the case of McCrory v Hendron [1993] NI QBD 177. At page 181f Kelly LJ observed that the requirements and restrictions imposed by the Act are there to be obeyed by those who choose to put themselves forward for public office and by those who assist them. As to the meaning of 'inadvertence' he said the following:

"There had been some debate in the election courts at the turn of the century as to whether ignorance of the law was 'inadvertence'. McCardie J resolved it in Nichol [v Fearby [1923] 1 KB 480]. In that case the question was similar to the present one, in that two municipal candidates, required to send both a return of election expenses and a declaration verifying it, failed to do so within the specified period and sought relief 'by reason of inadvertence… and not by reason of any want of good faith'. The inadvertence they each put forward was ignorance of their statutory obligations, McCardie J said (at 497-498):

'In my view the word "inadvertent" may be used according to our jus et norma loquendi as indicating either a negligent act, as distinguished from a careful act, or as indicating an unintentional, as distinguished from an intentional act. So, too, of an omission, as well as of an act… In my own view it is clear that ignorance of the law may fall within the word "inadvertence" … In Ex parte Walker (1889) 22 Q.B.D. 384 the Court of Appeal held and in my view unmistakeably held, that ignorance of the law may be "inadvertence" Any dicta to the contrary effect in earlier cases must, I think, be deemed overruled.'

In Smith and Sloan v. MacKenzie 1919 SC 546 Lord Skerrington took 'inadvertence' with its accompanying phrase in the statute (as here) 'or…any reasonable cause of a like nature'and said (at 550-551):

'The phrase is a somewhat curious one. It implies that inadvertence may be "a reasonable cause," and I assume that what is meant is that there must exist some reasonable explanation…. To say that a man has not adverted to a particular duty, and has consequently failed to perform it, may either imply gross and reprehensible negligence on his part, or again, it may mean that, being a human being, he has, thorough frailty, mad a mistake. In either case he has been guilty of negligence.'

A L.Smith LJ considered in Re Piers [1898] 1 QB 627 at 631, in the context of the Bankruptcy Act 1883, that 'inadvertence' points to 'forgetfulness or accident'.

And in the more recent case, on the nature of contributory negligence, Lord Evershed MR in Hicks v. British Transport Commission [1958] 2 All ER 39 said (at 47).

'I cannot help feeling that perhaps there has been an undue significance attached to the word "inadvertence", as though inadvertence was something necessarily distinct from negligence. The fact, of course, is that inadvertence may itself amount to negligence or it may not'.

Parker LJ said (At 50):

'As regards inadvertence, of course, it is a matter of degree. It is not every act of inadvertence which amounts to negligence. Equally in certain circumstances inadvertence may well amount to neglect.'

The election court is therefore afforded a comparatively wide range of meaning in applying the word, ranging from human error, through negligence to ignorance of the law. It seems to me in particular that the inclusion of ignorance of the law in the meaning of inadvertence in electoral law has given it a highly significant extension, one which might not be justified in the ordinary meaning of the word. "

In that case, an election petition had been presented alleging that the candidate Dr Hendron, and his agent, Mr Kelly, were guilty of numerous illegal practices contrary to various provisions of the Act. At page 221h, Kelly LJ stated that he was satisfied that the applicant Mr Kelly's defaults in breach of ss.81(1) and 82(1) were due to inadvertence composed of negligence in failing to look up the Act or peruse carefully the declaration form, and of course his ignorance of the law. The Court granted relief to Mr Kelly under s.86(2)(b). At page 222a Kelly LJ stated that for the same reasons the Court granted relief to the candidate Dr Hendron. He said that Dr Hendron was clearly unaware that his agent was obliged to make the return that he failed to read the printed form of return before signing it. The court also granted relief under s.167.

Higgins J delivered a concurring judgment. In particular, at page 234j, he accepted that 'all the illegal practices committed by both respondents were due to inadvertence or other reasonable cause of a like nature (mainly ignorance of an electoral law and practice)'.

While we are not bound by the decision of the Queens Bench Division in Northern Ireland, the judgments command respect and are persuasive. I agree for the reasons given by Kelly LJ that ignorance of the law may be 'inadvertence' within the meaning of the two sections under which these applications for relief are made.

Although Kelly LJ referred to Smith and Sloane, the only reference he made is to the speech of Lord Skerrington in the passage cited above. I note that he does not refer to the passage from the judgment of Lord Guthrie upon which Mr Deane relies primarily. Lord Guthrie stated that similar questions had been considered in the Court of England and derived the propositions he set out, including the first question, from those cases. The only English case referred to on this topic, which is identified at page 549 of the report, is Ex parte Walker (1889) 22 QBD 384. That is the very case referred to by McCardie J in the passage cited at page 213e of the judgment of Kelly LJ. Both Kelly LJ and McCardie J understood Ex Parte Walker to support the proposition that ignorance of the law may be 'inadvertence'. I agree. See pages 388-389 of the Judgement of Lord Esher MR with whom the other members of the court agreed. Lord Guthrie must be taken to have been setting out the approach a court might take to the facts, not a principle of law.

I therefore turn to the facts. In my judgment it is plain that the illegal practices to which I have referred, and which occurred in this case, occurred through inadvertence, as explained by the Claimants. There is no suggestion of any want of good faith. I do not need to say how great was the measure of carelessness, since it does not lead me to doubt that what occurred was by inadvertence. Once it is decided, as it is, that the case is one of inadvertence, it does not assist to characterise the degree of lack of care which led to the error. If the Court were concerned with an illegal practice under one or other of the sections here in question, which was one that could occur only as a result of a very high degree of carelessness or negligence, then that might lead a court to conclude that, if committed by professional men as distinguished and experienced as the Claimants, then it could not have been by inadvertence. But this is an approach to the facts, and not a proposition of law. And it is not the position as I find it to be in the present case.

In this case I am entirely satisfied on the evidence that the commission of the illegal practices was inadvertent on the part of both claimants. Had the claimants properly understood the law, there is no reason to suppose that they would have refrained altogether from distributing the documents that they did. The overwhelming probability is that the First Claimant would have arranged for their distribution by other means, either personally or through others who were neither paid by them nor being paid by others. Neither Claimant had any interest in the First Claimant spending, nor did he need to spend, more than was permitted.

In all of these circumstances I conclude that this is a proper case for the exercise of the Court's power, as we stated at the end of the hearing.

A further point arose in relation to costs. It was the Claimants' submission through Mr Millar that there should be no order for costs. That was the order that we made.

Mr Deane, on the other hand, asked for costs to be paid to Mr Richardson by the Claimants. He referred to Ex Parte Kyd (1897)14 TLR 154. In that case an application for relief was made on behalf of the candidate in respect of the holding of a meeting for the purpose of procuring an election upon premises upon part of which intoxicating liquors were supplied to a workman's club. The application was made upon the ground of inadvertence and was granted. An application on behalf of one of the other candidates was made for costs against the applicant, and the court granted those costs. The report reads as follows:

"Mr Justice Wright, in granting costs against the applicant, said that the Court had reserved the question of costs in order to see if there was any general rule on the subject. Cases had been brought to their notice, but no general rule had been shown. Where the illegal practice was not serious, it did not seem to them that the opponents of the application for relief ought to have their costs. But where the illegality was serious, it was to the interest of the public not to prevent such matters from being brought forward. The illegality was serious in this case, and costs would therefore be allowed.

Mr Justice Kennedy concurred. He said that when ever a case was a serious one the freest inquiry ought to be encouraged to see that the Act had been observed".

In the present case nothing has come to light as a result of the intervention of Mr Richardson which has assisted us in the disposal of this matter. Mr Deane has advanced submissions on behalf of Mr Richardson which we have rejected. In my judgment this is not a case where justice requires that the claimants be ordered to pay the costs of Mr Richardson.

I agree.