Ahmed v Kennedy (Ullah v Pagel)

The procedural regime governing an election petition has a strict hierarchy. Part III of the Representation of the People Act 1983 and the rules made under it prevail over the Civil Procedure Rules and any residual parliamentary practice.

A petitioner must serve, within the prescribed five days, notice both of the petition and of the amount and nature of the security given. A document addressing the petition but saying nothing about the security is no notice for this purpose. Because the five-day period cannot be enlarged, that omission is fatal and the petition cannot proceed. The treatment of minor defects in a notice which addresses both required matters remains open.

Two appeals concerned local government election petitions arising from elections in Birmingham and Manchester. The Divisional Court struck out both petitions because the petitioners had not served notice of the amount and nature of their security within the period prescribed by section 136(3) of the Representation of the People Act 1983 and rule 6(1) of the Election Petition Rules 1960. Its decision was reported at [2002] 4 All ER 764.

The petitions and copies of related documents had been served in time, but the Birmingham documents did not state the security actually ordered and given. The Manchester documents made no reference to security. The central questions were whether these were remediable defects in notices served in time and whether the Civil Procedure Rules empowered the court to waive the failures or extend time.

1. The appeals were dismissed unanimously. Simon Brown LJ delivered the leading judgment. May LJ agreed with his reasons, and Clarke LJ reached the same conclusion. The Divisional Court had correctly struck out both election petitions.

2. Part III of the Representation of the People Act 1983 and the procedural rules made under section 182(1) constitute the primary procedural regime for election petitions. They prevail over the Civil Procedure Rules, which in turn prevail over any residual practice, principle or rule formerly applied by House of Commons committees. Rule 2(4) confirms that ordinary High Court practice is subject to the Act and the election rules.

3. Section 136(3) and rule 6(1) require service within five days of a notice addressing two separate matters: the presentation of the petition and the amount and nature of the security actually given. Service of a petition or an application seeking the fixing of security does not satisfy the second requirement. Neither appellant served a document which could arguably amount to the required notice about security.

4. The omission was a complete failure to serve the prescribed notice, rather than a defect in a notice served in time. Rule 19(1) expressly prevents enlargement of the five-day period. The powers in CPR 3.1(2)(a) and CPR 3.10 therefore could not permit late service or cure the absence of the required notice. The petitions could not proceed.

5. The court followed Absalom v Gillett [1995] 1 WLR 128, treated Devan Nair v Yong Kuan Teik [1967] 2 AC 31 as highly persuasive, and accepted the strict approach in Williams v Mayor of Tenby (1879) 5 CPD 135. Simon Brown LJ considered Young v Figgins (1869) 19 LT 499 wrongly decided.

6. The court did not determine which typographical or minor errors in a notice might be remediable. Clarke LJ also left open whether CPR 3.10 could cure a defect in a timeous notice which substantially addressed the statutory requirements. He considered that any such discretion should be exercised in a petitioner's favour only very rarely.

1. Court of Appeal: The two appeals were dismissed unanimously. The orders striking out both election petitions were upheld: [2002] EWCA Civ 1793.
2. High Court, Divisional Court: Hooper and Hunt JJ struck out the election petitions for failure to comply with section 136(3) of the Representation of the People Act 1983. The decision was reported at [2002] 4 All ER 764. The Divisional Court granted permission to appeal.