Saghir & Ors v Najib & Ors

An election petition must comply strictly with the statutory and procedural requirements governing presentation, security for costs and service. A served document must be a copy of the petition actually presented; a document containing additional material is insufficient. Notice of the nature and amount of security cannot be given before the security has been provided. Failure to serve either required notice within the prescribed period is fatal and cannot be remedied under the ordinary Civil Procedure Rules. An election petition may also be struck out where its allegations lack sufficient particularity and the evidence shows no real prospect of success.

The petitioners were unsuccessful Conservative candidates in a local election conducted as an all-postal pilot. They challenged the election result and alleged irregularities, misconduct, intimidation and improper processing and counting of votes.

The returning officer and the successful candidates applied to strike out the petition. They relied on failures concerning presentation, security for costs and service, as well as lack of particularity and prospect of success. The court also considered the Court of Appeal’s decision in Ahmed v Kennedy, [2002] EWCA Civ 1793 and [2003] 1 WLR 1820.

1. The applications to strike out the election petition were granted. The proceedings therefore came to an end.

2. Under the Representation of the People Act 1983 and the Election Petition Rules 1960, version 1 was the petition presented. It was the only version filed, stamped, sealed and placed on the court file. Version 2, served on the respondents, was not the petition presented. Serving a document which included the presented petition but added further allegations did not satisfy the requirement to serve a copy of the petition.

3. The letter served on 30 June did not provide valid notice of the security. It stated that £2,500 had been paid, although the security was not provided until 2 July. The court also found, on the balance of probabilities, that no later notice of the security had been served. The absence of a certificate of service reinforced that conclusion.

4. The reasoning in Ahmed v Kennedy applied. The failures were not merely defective service within time: neither required limb of the notice requirements had been complied with. Such non-compliance was incapable of being remedied and required the petition to be struck out.

5. The court left open the question reserved in Ahmed v Kennedy concerning a discretion to cure a defective notice served in time. In any event, even if such a discretion existed, it would not have been exercised because of the extent of the failures and the petitioners’ conduct.

6. Alternatively, the petition failed to state the relied-on facts with sufficient particularity under rule 4(1)(d) of the Election Petition Rules 1960. The allegations of intimidation and irregular vote processing were unsupported or inadequately particularised, and the evidence disclosed no real prospect of success.