Miller v Bull (Returning Officer of Herefordshire Council) & Ors

Election petition time limits must be interpreted proportionately. A rule preventing extensions of time is incompatible with Convention rights where its application would strike out a petition solely because notice of the amount and nature of security was served late, despite timely compliance with the other essential requirements.

Where the incompatibility arises from subordinate legislation rather than primary legislation, the court may disregard or read down the offending restriction under the Human Rights Act 1998. The public interest in secure and speedy elections is important, but does not justify an automatic nullity for a minor procedural default that causes no material prejudice or delay.

The claimant presented a local election petition challenging the nomination and election of the successful candidate. He presented the petition and gave the required security for costs in time, but served notice of the amount and nature of the security late. Notice was also served on the Director of Public Prosecutions several weeks out of time.

The Returning Officer relied on Ahmed v Kennedy [2002] EWCA Civ 1793; [2003] 1 WLR 1820, which treated the relevant election-petition time limit as incapable of extension. The central issue was whether amendments to the Election Petition Rules 1960 and the Human Rights Act 1998 permitted relief from the resulting sanction.

1. Relief granted. The court extended time for service of the notices required by rule 6 of the Election Petition Rules 1960. Without relief, the petition would have been struck out.
2. Construction of rule 19. On ordinary principles, the reasoning in Ahmed v Kennedy remained conclusive as to the pre-2003 wording of rule 19. That reasoning treated rule 19 as excluding the general power in CPR r.3.1(2)(a) to extend time.
3. Convention rights. The court accepted that Article 6 and Article 3 of Protocol No 1 were engaged. Election petitions concern an important public interest in determining whether elected representatives were duly elected and in safeguarding free elections. That interest supports certainty and expedition, but does not justify disproportionate procedural consequences.
4. Proportionality. A rule requiring automatic nullity for late service of notice of the amount and nature of security was disproportionate where the petition had been presented in time, security had been given in time, the other requirements had been met, and the delay did not materially prejudice the parties or delay the proceedings. The availability of extensions for other election-petition steps reinforced the conclusion that the prohibition produced an anomaly.
5. Human Rights Act 1998. Rule 19 was subordinate legislation. The primary legislation did not require the incompatible restriction. The court was therefore not bound to apply the Court of Appeal’s interpretation of the earlier version of rule 19 and was required to disregard the apparent prohibition insofar as it made the proceedings a nullity. It was unnecessary to read words into the rule; it could be read down as subject to the court’s power to grant relief from sanctions.

The extension of time was granted.

This was a first-instance application concerning an election petition. The judgment considered the Court of Appeal’s decision in Ahmed v Kennedy [2002] EWCA Civ 1793; [2003] 1 WLR 1820, but did not determine an appeal from that decision.