Gough v Local Sunday Newspapers (North) Ltd. & Anor

After an election result has been declared, an informal count of overlooked ballot papers should not take place because electoral secrecy and integrity must be protected. A county court may nevertheless make an order under rule 47(1)(b) before an election petition is presented, provided there is a real doubt about the declared result and a real likelihood that a petition would follow if inspection showed the result to be wrong. The application may be made ex parte by the returning officer. Interested parties should generally receive notice and an opportunity to attend, but need not be respondents. Applying those principles, the legal advice given in a difficult and uncertain situation did not amount to incompetence, still less very great incompetence. The defamatory publications were therefore not justified.

Following a local election, 86 postal ballot papers were discovered after the result had been declared. The returning officer authorised an informal count and then applied under rule 47(1)(b) for inspection and counting of the relevant papers. The application was adjourned and later discontinued; no election petition was presented.

The respondents published statements alleging gross incompetence and maladministration. Mr Justice Gray, after a 12-day trial, found the statements substantially justified. Mr Gough appealed. The central issues concerned the proper electoral procedure, the jurisdiction and parties for a rule 47 application, and whether his conduct justified the defamatory allegations. No issue arose under defamation law apart from justification and meaning.

Simon Brown LJ delivered the principal judgment. Keene LJ agreed entirely, and Bell J agreed for the reasons given by both Lord Justices. The appeal was therefore allowed unanimously.

1. Informal count. Although the Rules did not expressly prohibit an informal count, opening and examining ballot papers without the candidates or their agents risked compromising electoral secrecy and integrity. Informal counts should not take place in any circumstances.
2. Rule 47 jurisdiction. Rule 47(1)(b) permits a county court application before an election petition has been presented. The court must be satisfied that the application is intended to resolve a real doubt about the correctness of the declared result and that, if inspection showed the result to be wrong, there was a real likelihood that an election petition would follow. An application was improper where the overlooked votes could not reasonably affect the result. The approach was consistent with the policy underlying Representation of the People Act 1983, including section 48(2), because it reduced the risk that genuine counting errors would remain uncorrected.
3. Applicant and parties. The returning officer could make the application in order to correct an obvious electoral error. An ex parte application was permissible. Candidates and other interested persons should generally be notified and given an opportunity to attend or seek joinder, but they need not be joined or served as respondents. The court distinguished Absalom v Gillett [1995] 2 All ER 661, which concerned an election petition in which a successful candidate risked losing office.
4. Justification. Gray J had reached the wrong conclusions on most of the important electoral-law issues. The remaining criticisms, including authorising the informal count and failing to raise jurisdictional doubts promptly, were insufficient to establish incompetence, particularly given the difficulty of the legal problem and the correct advice on the rule 47 application. The finding of justification could not stand.
5. Meaning. The judge’s conclusion that the publications alleged very great incompetence was not plainly wrong and was upheld applying Skuse v Granada Television Limited [1996] EMLR 278. The submission that the allegation was merely comment or a value judgment was rejected as unsustainable.

The judgment below was set aside. Judgment was entered for Mr Gough, with damages to be assessed by the Court of Appeal. The respondents were ordered to pay the appeal costs.

• Court of Appeal (Civil Division) — The appeal was allowed on 12 March 2003: [2003] EWCA Civ 297.
• High Court of Justice, Queen’s Bench Division — Gray J, sitting without a jury, found the publications defamatory and substantially justified after a 12-day trial. Mr Gough’s claim therefore failed.