Conservative and Unionist Party v Election Commissioner & Ors

The statutory costs scheme for election petitions governs the liability of parties and non-parties. The general High Court power to order a non-party to pay costs under section 51 of the Senior Courts Act 1981 cannot enlarge that scheme where section 154(1) of the Representation of the People Act 1983 makes costs subject to the Act’s specific provisions.

An election court may reserve costs after issuing its judgment and certificate because costs form part of its statutory business. Once it has made a final costs order and completed the matters required by section 145, however, the election court ceases to have authority to reopen the case or impose costs on a third party. Concerns about apparent bias must be addressed through a proper application and full argument.

The Conservative Party sought judicial review of decisions made by the Election Commissioner after an election petition concerning a local election. The Commissioner had ordered the successful petitioner’s costs against the candidate whose election had been declared void. After the candidate became bankrupt, the petitioner sought to add the Conservative Party and the local association as respondents for costs purposes.

Keith J held that the law did not permit an adverse costs order against a non-party to an election petition. He also considered himself bound by R. v. Cripps ex parte Muldoon to hold that the election court ceased to exist after completing the statutory formalities. He did not decide the recusal issue. The central questions on appeal were whether the general High Court costs jurisdiction could be used and whether the Commissioner retained jurisdiction.

Appeal dismissed. Lord Justice Leveson gave the leading judgment. Lady Justice Smith and Lord Justice Maurice Kay agreed.

1. The Representation of the People Act 1983 contains a detailed and extensive costs scheme. Section 154(1) makes the parties responsible for costs except where the Act otherwise provides. Section 156 supplies specific routes for costs orders against persons who have engaged in, encouraged or promoted corrupt practices, subject to procedural safeguards. Those provisions are not merely procedural; they define and extend the costs jurisdiction.
2. The election court could not rely on section 51 of the Senior Courts Act 1981 and Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965 to order the Conservative Party or the local association to pay costs. The general jurisdiction remained subject to the specific statutory scheme governing election petitions.
3. An election court may determine costs after delivering its judgment and certificate where the costs issue has been reserved. Costs are part of the business entrusted to the election court. However, the Commissioner had already made a final costs order and completed the matters required by section 145. The election court had therefore concluded its business and could not reopen the costs issue or entertain a fresh application against a third party.
4. The Commissioner was bound by R. v. Cripps ex parte Muldoon [1984] 1 QB 68; [1984] 1 QB 686. The Court of Appeal’s core statement that an election court ceases to exist when its trial is concluded was not displaced by the observations concerning the slip rule, which were obiter in that limited context.
5. The Commissioner’s prior observations about political parties’ responsibility for election-petition costs could generate an apprehension that he might not bring an unprejudiced mind to the issue. He was not entitled to dismiss that concern summarily without awaiting a formal application and full argument. Since the jurisdictional issues disposed of the matter, the court did not decide whether recusal was required.

1. Court of Appeal (Civil Division): The court dismissed the appeal and upheld the material conclusions of Keith J.
2. High Court (Administrative Court): Keith J held that an adverse election-petition costs order could not be made against a non-party and that the election court had ceased to exist after completing the statutory formalities. He declined to determine the recusal issue.