Burnley Local Government Election, Re

On 3 May 2007 an election was held for the Borough Council of Burnley in Lancashire, Rosegrove with Lowerhouse Ward. The Second Respondent (“the Returning Officer”) was the Returning Officer. He declared that the First Respondent was duly elected Councillor for the Ward. The numbers of votes recorded for each candidate, according to his declaration was:

He declared that the number of ballot papers rejected was 2, and that they were rejected as being unmarked or wholly void for uncertainty. The number of ballot papers issued was 1596. After two recounts it was found that the numbers of votes cast for each of Mr Reynolds and Mr Rowe were 489. The Returning Officer accordingly drew lots, and it was following this procedure that Mr Reynolds was declared elected.

On 8 February 2008 we ordered that the case raised by the petition be stated as a special case. We heard the case immediately. Following argument from counsel we announced our judgment. We held that the only ballot by then still in dispute was not void for uncertainty. It followed that Mr Reynolds was duly elected. We said that we would deliver our reasons later, which we now do.

The election was conducted pursuant to the “Rules for Conduct of an Election of Councillors of a Principal Area where Poll is not taken together with Poll at another Election” (“the 2006 Rules”). These are set out in the Local Elections (Principal Areas)(England and Wales) Rules 2006 SI No 3304 Sch 2, made pursuant to the Representation of the People Act 1983, s.36(2).

On 23 May 2007 the Petitioners, who are electors in the Borough, presented their petition. They alleged that the Returning Officer counted as a vote for Mr Reynolds a ballot paper that was wholly void for uncertainty. This paper has subsequently come to be referred to as MAP2. They applied for a scrutiny and recount. At a hearing on 12 September 2007 (following an adjournment from 30 July) Irwin J ordered that a scrutiny take place.

On 21 September 2007, in accordance with that order, Master Turner proceeded with a full recount of the votes cast. There was again found to be a tie. The tie was subject to the disputed ballot paper MAP2, and to a further disputed ballot paper marked MAP3. In addition two ballot papers were withdrawn from the bundle of papers counted as votes for Mr Reynolds and they were designated MAP4 and MAP5. The Report of Master Turner explains that these appeared to be votes which could be in dispute and in respect of which the parties might wish to seek legal advice.

On 2 January 2008 the Fourth Petitioner issued an application notice, asking (in accordance with the Representation of the People Act 1983 s.146) for the case raised by the petition to be stated as a special case and heard before this Court.

On 11 January 2008 that application came before myself. At that hearing the Fourth Petitioner appeared in person and the Respondents were represented by solicitors and counsel, Mr Cavanagh QC for the Returning Officer and Mr Vassall-Adams for Mr Reynolds. They also represented the Respondents at the hearing on 8 February 2008. The Respondents supported the application.

It appeared to me that the Fourth Petitioner's application might be granted, but I did not make the order sought at that stage for two reasons. First, there was at that time no agreement between the parties as to the circumstances in which the disputed paper MAP2 had been rejected by the Returning Officer. Second, an order under s.146 can only be made by a Divisional Court (The Election Petition Rules 1960 SI No 543 r.11). Accordingly I ordered that the application be adjourned to the sitting of a Divisional Court on 8 February 2008, with the hearing of the Special Case to follow immediately upon the hearing of the application, if the application were granted. Mr Cavanagh undertook the drafting of the Case, with the co-operation of Mr Vassall-Adams.

In the week ending 8 February 2008 the Petitioners obtained the representation of solicitors and counsel, Mr Adrian Davies. Following that, the Petitioners accepted that the only issue arising was in relation to the paper MAP2. They also accepted that the point of fact upon which there had hitherto been no agreement could not affect the outcome of these proceedings. Rule 48 of the 2006 Rules provides that:

“The decision of the returning officer on any question arising in respect of a ballot paper shall be final, but shall be subject to review on an election petition.”

It is now common ground that the effect of r.48 is that even if the Returning Officer was wrong in law to count the disputed ballot paper as a vote, that does not prevent this Court from counting it if in our judgment it was a valid vote. Nevertheless, for the sake of completeness, the point on which there was no agreement is briefly noted below.

The question of law set out in the Special Case, which we answered in the negative, can now be framed as follows:

“Is the vote in favour of the [Mr Reynolds], “the disputed vote”, ... marked MAP2... which was counted by the [the Returning Officer] in the election as a vote for [Mr Reynolds], void for uncertainty, so that it should be discounted?”

The ballot papers were in the form prescribed by r.16 of the 2006 Rules (and set out in the Appendix in Part 7). There were three columns, and one row for each candidate. In the left hand column there is a number from 1 to 4 beside the name and description of each candidate, which appears in the middle column. The right column is blank.

On the disputed paper MAP2 the number in the left hand column next to the name of Mr Reynolds is 3. In the box containing that number there appears an oblique line, or back slash, from the top left hand corner of the box to the bottom right hand corner. The paper also bears a stamp “REJECTED unmarked or void for uncertainty”. It was the circumstances in which this stamp came to be made, by whom, and with what effect, which gave rise to the point on which there was no agreement between the parties. But for the reasons explained above, the only mark on the paper which is material to any issue we have to decide is the oblique line.

For the Petitioners, Mr Davies submits that the disputed paper is void for uncertainty. For the Respondents Mr Cavanagh and Mr Vassall-Adams submit that it is not.

The question set out above arises under the 2006 Rules, r.47(1)(d). So far as material, r47(1) and (3) provides as follows:

“47.

— (1) Any ballot paper— ...

(d)

which is ... void for uncertainty,

shall, subject to paragraphs (2) and (3), be void and not counted.

(2)

...

(3)

A ballot paper on which the vote is marked—

(a)

elsewhere than in the proper place, or

(b)

otherwise than by means of a cross, or

(c)

by more than one mark,

shall not for such reason be deemed to be void (either wholly or as respects that vote) if an intention that the vote shall be for one or other of the candidates clearly appears, and the way the paper is marked does not itself identify the voter and it is not shown that he can be identified by it.”

Another provision of the 2006 Rules which assists in understanding the submissions of the parties is the Appendix headed “Directions for the Guidance for Voters”. By r.26(6) these directions are required to be exhibited inside and outside every polling station. So far as material, these provide as follows:

“2.

Mark a cross (X) in the box on the right hand side of the ballot paper opposite the name(..) of the candidate(..) you are voting for”.

The disputed paper MAP2 departs from the Guidance in two respects: the voter has marked it elsewhere than in the proper place, and he or she has done so otherwise than by means of a cross.

Mr Davies's first submission is that, on the true construction of r.47(3), where a ballot paper is marked in the manner described in two of the sub-paragraphs of r.47(3), then, as a matter of law, that paper is void. The submission turns on the meaning of the word “or” where it appears at the end of sub-paragraphs (a) and (b) of r.47(3). Mr Davies submits that in that context “or” does not mean either “and” or “and/or”. In his Skeleton argument, he expanded the submission by a double negative:

“The rule does not suggest that a ballot paper that is both marked (a) elsewhere than in the proper place and (b) otherwise than by means of a cross is not deemed to be void”.

Returning Officers and those advising them naturally look for guidance on the validity of disputed ballot papers to cases which have been decided in the past. This also helps to ensure consistency and predictability. There is now a significant body of case law, a number of the cases dating back over a century. The law as it now is can be traced back to the Ballot Act 1872, but the precise form in which the legislation is now framed dates from 1948. The researches of counsel have brought to our attention cases where the voter has marked a ballot paper in one or other of the ways described in r.47(3)(a) to (c). But in none of these cases since 1948 did the voter mark the ballot paper in a way that involved, on the one paper, two departures from the Guidance.

Mr Davies supported his submission by a case on the meaning of the old Workmen's Compensation Act of 1925: Green v Premier Glynnrhonwy Slate Co [1928] 1 KB 561. By s.8(1) and (3)(i) of that Act additional compensation was payable in a case where a deceased workman left “a widow or other member of [his] family and [a] child ... wholly dependent upon [his] earnings...” The question before the court was whether “or” in that context meant “and”. Scrutton LJ decided it did not. He said at p568:

“You do sometimes read 'or' as 'and' in a statute. In Brown & Co v Harrison MacKinnon J read 'or' as 'and' in the Carriage of Goods by Sea Act 1924, and his decision was confirmed by this court. But you do not unless you are obliged, because 'or' does not generally mean 'and' and 'and' does not generally mean 'or”.

Mr Cavanagh, supported by Mr Vassall-Adams, submits that in the present case the question is not whether 'or' means 'and', but whether it means 'and/or'. That is what the question is here. In addition Mr Vassall-Adams emphasises the words in the sub-rule: “shall not for that reason be deemed to be void ... if an intention that the vote shall be for one or other candidate clearly appears”. They submitted that no sensible legislative purpose would be achieved by what was referred to in argument as Mr Davies’s “two strikes and you are out” construction. On the contrary, the purpose of the legislation is to save votes where the intention of the voter clearly appears

We accept the submissions for the Respondents. Legislation must be read purposively. The legislative purpose is to give effect to a vote where the intention of the voter clearly appears. This view is supported by the cases referred to below.

The point that Mr Davies put in the forefront of his argument was on the issue of fact whether the intention of the voter does appear sufficiently clearly on this particular ballot paper. He points out, what is not in dispute, that at a point before the Returning Officer decided that it should be counted, it had been stamped as rejected. So it was sufficiently uncertain for there to have been at least some doubts.

Mr Davies submits that by striking through the left hand box opposite Mr Reynolds, the voter was indicating that he rejected Mr Reynolds, or at least it is not clear whether he was intending to vote for Mr Reynolds, or to reject him. He submitted that the proper approach of the court was as set out by O'Connor J in Cornwell v Marshall (1976) 75 LGR 676, in the Divisional Court. At p681 O'Connor J referred to “different levels of education” since the ballot was introduced over a hundred years previously, and at 682 he said:

“I would only like to add on that particular topic, that, where directions for voting are simple and clear, it is really not right in this day and age for there to be too great an attempt to try and apportion a voting paper which, on its face, does not comply with the rules, and to save the vote. If there is a real doubt as to whom the voted is intended for, which can reasonably be raised, then the returning officer should reject it”.

At that point in his judgment he had just considered and decided the point in relation to one of the ballot papers there in question, and was about to consider the other disputed paper. In the election in that case there were three candidates who stood for election in respect of one vacancy. The paper that O'Connor J had just rejected was one on which the voter had placed a single cross on the middle column of the paper, and the cross covered the names of two candidates, Mr Marshall and Mrs Mostyn, its intersection being just in the space where Mr Marshall's name was. The Returning Officer had counted it as a vote for Mr Marshall. O'Connor J said there was a reasonable doubt whether this was a vote for Mr Marshall or for the third candidate, Mr Cornwell. The court rejected the vote. The words relied on by Mr Davies were not part of the reasoning in relation to either of the disputed papers in that case.

Mr Cavanagh referred us to Ruffle v Rogers [1982] 3 All ER 157, and submitted that we must follow the judgment of Lord Denning MR with which Eveleigh and Watkins LJJ agreed. In that case the voter had written the words “Ruffle Liberal” in the box on the right hand side of the paper opposite Mr Ruffle's name. The voter could not be identified from this writing, but the Returning Officer had rejected the vote. Lord Denning MR referred to two pre-1948 cases as follows:

“The first case was Birmingham Case, Woodward v Sarsons (1875) LR 10 CP 733. We were shown an extract from Schofield's Local Government Elections (8th edn, 1979) p 365. It showed photographs of ballot papers which were held to be bad in that case. In two examples the voter had not put a cross beside the name 'Sarsons'. He had written in the name 'Sarsons'. He had written in the name of the candidate for whom he wished to vote. The court held in 1875, with some hesitation, that that was a bad ballot paper.

The next case was Exeter Case, Duke v St Maur (1911) 6 O'M & H 228. One of the candidates was Mr Henry Edward Duke KC .... The opposing candidate was Mr Richard Harold St Maur. Mr Duke presented an election petition, which was tried by two judges at the Guildhall, Exeter in 1911. In that case the voter had not been content merely to put a cross next to Mr Duke's name. He showed his enthusiasm by writing in 'Up Duke'. That ballot paper was rejected as invalid”.

Lord Denning then said this at p160:

“It is clear to me that the new regulations going back to 1948 altered the pre-existing law. It is interesting to note that in Schofield's Local Government Elections (8th edn, 1979) p 365 it is said of Birmingham Case, Woodward v Sarsons: 'But there are grave doubts whether this now invalidates the vote.' It is also said (at p 369):

'In all cases which have been before the courts in recent years, the judges have all indicated that the voter's franchise should not lightly be lost by declaring a vote to be bad if there is a clear intention shown as to what the voter intended to do.'

In my opinion, since the new rules came into force, Birmingham Case and Exeter Case are no longer law. The fact that a voter has written in handwriting the name of his chosen candidate, clearly showing that he intended to vote for that candidate, on the correct ballot paper and in the correct place does not invalidate the ballot paper at all.

The voter in this case did not obey the directions. Many people make a slip of some kind. But when the intention is clear, as it was in this case, it seems to me entirely wrong that his vote should not be counted”.

That dictum is consistent with earlier cases. Mr Vassall-Adams cited Gloucester County, Cirencester Division Case (1893) 4 O'M & H 155 where Hawkins J (with the agreement of Vaughan Williams J) said at pp157-8:

“We have, first of all asked ourselves whether the voter received his paper with the intention to vote. The mere fact that he has applied for and received a voting paper, affords abundant evidence that such was his intention. Then we have looked at the face of the paper itself and with a view to see whether or not the voter has by any mark clearly indicated the person for whom he wished and intended to vote... our view being that we ought to interpret the Ballot Act liberally, and, subject to other objections, to give effect to any mark on the face of the paper which in our opinion clearly indicated the intention of the voter, whether such mark were in the shape of a cross, or a straight line ...and whether on the right or the left hand side of the candidate's name...”

As Mr Cavanagh points out, the words of Hawkins J are reflected in what is now r.47(3). This passage was cited with approval by Kennedy LJ sitting with Hallett J in Rowe v Cox unreported 20 December 2001. In the same case Kennedy LJ approved the passage in Cornwell v Marshall at p 681 in which O'Connor J said:

“Each voting paper must be looked at on its own merits and ultimately it is a matter of first impression whether the vote is clearly cast for one candidate”.

Mr Davies submits that the ballot papers illustrated in volume 4 of O’Malley and Hardcastle’s report (1893) at p54 include at least one which would not be accepted under the law as it is now. That may or may not be so. It is the principle as to how the court is to approach a disputed paper that is the point of law, not how the judges in fact applied it in the case of each of the papers disputed in the Cirencester case.

In our judgment we are bound to approach the question of fact in accordance with the law set out in Ruffle v Rogers. We would in any event have been reluctant to adopt the approach of O'Connor J. The 2006 Rules do not include a “rule” as to how a voter must mark a ballot paper, but only Guidance. So it is not a question of saving a vote which does not comply with the rules. The question laid down in r.47(1) is whether the ballot paper is void for uncertainty. There are provisions in r.47(3) setting out three sorts of marks on paper and saying that if a paper bears any of them, then it shall not for that reason be deemed to be void. These are not additional tests for validity. That is because the 2006 Rules provide guidance, not rules, as to how to vote.

Moreover, it is important that the law should provide for the whole electorate. While there may be more educated voters in the twentieth and twenty first centuries than there were in the nineteenth century, the electorate is now much wider than it was then. It includes not only people who are well, or not so well educated, but also those whose first language may not be English, and those who suffer from impaired eyesight, and manual dexterity, as well as disabilities of all kinds, whether from birth or by reason of illness or age.

The voter who marked the disputed paper had gone so far as to attend the polling station, to receive a paper and to place a mark opposite the name of Mr Reynolds. The voter plainly intended to vote. In my judgment the intention of the voter to vote for Mr Reynolds does clearly appear from the disputed paper MAP2.

I have had the benefit of reading in draft the judgment of Blake J, and I agree with what he says.

I agree. As indicated above, at the conclusion of the oral argument we informed the parties of the result of the application with reasons to follow. We were then invited to summarily assess costs. The solicitors for the second Respondent presented information for summary assessment to the effect that their costs, including VAT and fees paid to leading counsel, were £40,589. We were informed that this sum did not include fees for opposing an application for scrutiny that was unsuccessfully opposed. The first Respondent appeared through junior counsel and presented a late manuscript summary statement of costs at some £15,000 inclusive of VAT.

In response, Mr Davies for the Petitioners submitted:-

We indicated that we would award costs in the sum of £20,000 to the Second Respondent and £10,000 to the First Respondent and here briefly give our reasons for doing so, it being recognised that costs are to be awarded in the discretionary judgment of the court in accordance with normal civil principles.

We are extremely grateful to all counsel for the efficient and effective manner in which the arguments were presented to us, but were concerned that a hearing which in the end took half a day of the court’s time should generate Respondent’s costs of £55,000. In our judgment, public law principles for the award of costs are an appropriate guideline in the case of a legitimate and serious challenge to a ballot paper that was decisive of the outcome of an election. There is an important public interest in clarifying the legitimacy of the ballot and the vote on which the disputed paper depends. It would be contrary to the public interest to deter such scrutiny because of the disproportionate consequences in costs for any unsuccessful petitioner. There is some analogy with the court’s concerns to limit the costs consequences of public interest challenges in environmental litigation or on other important [law] public law claims: see per Carnwath LJ in R (England) v LB TowerHamlets [2006] EWCA Civ 1742 20^th December 2006 and the report of Sir Maurice Kay “Litigating the Public Interest" (July 2006) noted at [14].

The Petitioners appeared in person when these proceedings were instituted. It may be that having regard to the issues, and the fact that the ballot paper concerned was originally rejected for uncertainty, that they would have had a good claim for a protective costs order at least of the third type mentioned by Sir Maurice Kay in his report, namely an order capping liability to all respondents in a reasonable sum.

No protective costs order was made. It is not alleged that the Petitioners have behaved unreasonably in the conduct of this litigation, but we do not conclude that there should be no adverse costs consequences for the outcome on the substantive issue. We are, however, satisfied that the Court has the power and the duty to ensure that costs are proportionate in all the circumstances and do not unduly deter access to the courts in appropriate cases of dispute, and in particular the full costs of engaging experienced leading counsel should not be visited on the Petitioners. It is for these reasons as well as specific observations on the summary assessments lodged made by the Petitioners that we have made the reductions in the costs claimed on summary assessment.