Erlam & Ors v Rahman & Anor

In an election petition, failure to plead facts with sufficient particularity does not necessarily make the petition a nullity. Where a permissible statutory ground and some factual basis are stated, the court may order further particulars under the Civil Procedure Rules or its inherent jurisdiction. Protective costs relief is not automatic in election proceedings, particularly where applicants fail to provide essential evidence of means.

Electors challenged the Tower Hamlets mayoral election held on 22 May 2014. The first respondent applied to dismiss or strike out the petition, alleging that serious allegations of electoral fraud and other unlawful conduct lacked sufficient particularity. The petitioners applied to adjourn their application for a protective costs order, having not produced evidence of their financial means.

The Divisional Court considered whether the petition was a nullity, whether further particulars could be ordered, and whether the protective costs application should be adjourned or pursued.

1. Dismissal application: The application to dismiss or strike out the petition was dismissed. Section 127 of the Representation of the People Act 1983 limits election challenges to specified grounds. Rule 4(1)(d) of the Election Petition Rules 1960 requires the grounds and the facts relied on to be stated with sufficient particularity.
2. The primary obligation is to state a permissible ground of challenge. The particularity requirement is important but subordinate to that requirement. Whether facts are stated with sufficient particularity depends on the circumstances of the individual petition.
3. A petition which states a permissible ground and gives a general factual basis is not a nullity merely because its facts are insufficiently particularised for trial. The court may order further particulars under the CPR or its inherent jurisdiction. Further particulars were ordered by 4 pm on 18 August 2014.
4. The court distinguished Ahmed v Kennedy, which concerned a fundamental failure to serve the prescribed notice within a non-extendable statutory period. The court did not need to decide the petitioners’ ECHR argument, but observed that the strict statutory time limits would likely pursue a legitimate aim and might be proportionate.
5. Protective costs order: The application to adjourn was refused and the application itself was dismissed. The petitioners’ deliberate failure to disclose their financial means supplied no good reason for an adjournment. The court considered, without deciding, that the protective costs regime might be inapt for election petitions because section 154 of the Representation of the People Act 1983 contains a specific election-costs regime.