The Conservative and Unionist Party v The Election Commissioner & Ors

The statutory scheme governing election petitions is a discrete and purpose-built code. Although the High Court ordinarily has power to order a non-party to pay costs, that power is subject to the Representation of the People Act 1983. Under section 154(1), costs are to be borne by the parties except where the Act provides otherwise. Section 156 is the only provision permitting costs to be ordered against non-parties to an election petition. The general powers conferred on an election court by sections 123(2), 130(5) and 157(3) cannot enlarge that scheme. Civil Procedure Rules concerning non-party costs are procedural and cannot create a substantive power unavailable under the Act. Any wider liability for political parties funding election litigation requires legislation.

A Labour candidate successfully challenged the election of a Conservative candidate. The election court declared the election void and ordered the candidate to pay the claimant’s indemnity costs. The candidate became bankrupt, and the claimant sought to recover those costs from the Conservative Party and the local Conservative association, neither of which had been parties to the election petition.

The Conservative Party sought judicial review of the proposed procedure and argued that the Act did not permit such a costs order. The central issue was whether a non-party could be made liable for election-petition costs outside the circumstances specified by section 156 of the Representation of the People Act 1983.

1. Non-party costs. The claim succeeded on the principal issue. Section 154(1) provides that election-petition costs are to be defrayed by the parties, except where the Act otherwise provides. Section 156 is the only provision that permits an order for costs against a non-party, in the specified circumstances involving corrupt or illegal practices.
2. The general power in section 51 of the Senior Courts Act 1981 is expressly subject to other enactments and rules of court. The powers conferred on an election court by sections 123(2) and 130(5), and on the High Court by section 157(3) of the Representation of the People Act 1983, are likewise subject to the Act. They cannot be used to add a general non-party costs jurisdiction to the statutory scheme.
3. Rule 48.2(1) of the Civil Procedure Rules 1998 is only a procedural mechanism for joining and hearing a proposed non-party on a costs application. It does not supply the substantive power to make the order. The approach was consistent with Ahmed v Kennedy [2003] 1 WLR 1820, which treated the election-petition legislation and rules as a discrete statutory scheme.
4. The argument that the election court’s powers necessarily ended when the trial was concluded was not required for the result. The judge provisionally considered that the election court probably ceased to exist after completion of the statutory formalities, consistently with R v Cripps ex p Muldoon [1984] 1 QB 68, but left the issue for determination by the appropriate appellate court if it became live.
5. It was declared that no order for payment of the claimant’s petition costs could be made against the Conservative Party or the Slough Conservative Association. Costs of the judicial-review claim were provisionally directed against the claimant, subject to any written representations.

Not an appeal. The judgment arose from a judicial-review challenge to the proposed determination of a costs application connected with an earlier election petition.