Parkinson v Lewis & Ors

An election petition may establish that candidates were not duly elected where mandatory nomination requirements are breached. A returning officer’s decision that a nomination paper is valid does not prevent a later challenge to the candidate’s nomination on grounds not apparent from the paper’s form. The statutory saving provision for local elections addresses breaches by returning officers and other persons acting in an official capacity; it does not ordinarily cure candidates’ failure to comply with mandatory nomination rules. The court’s jurisdiction is limited to deciding whether the respondents were duly elected or whether the election is void. It cannot declare the petitioner elected in their place without the statutory conditions for the thrown-away votes doctrine.

The petitioner challenged the election of three councillors for the Over ward of Winsford Town Council. Their nomination papers were accepted, but each candidate’s proposer or seconder was registered outside the ward, contrary to the mandatory nomination requirements. The defects were admitted and the candidates were found to have acted innocently.

The petitioner sought a declaration that he was elected. The respondents relied on the finality of the returning officer’s decision, the statutory saving provision for local elections, and the absence of any substantial effect on the voting result. The court had to determine the legal effect of the defective nominations, the scope of the court’s remedial jurisdiction, and the appropriate costs order.

1. Defective nominations. Rule 6 of the Local Election (Parishes and Communities) England and Wales Rules 2006 required each nomination paper to be subscribed by two electors registered in the electoral area concerned. Since the ward was the relevant electoral area, the proposers and seconders had to be registered in the Over ward. The admitted breaches meant that the candidates were not duly elected.
2. Finality of validation. Rule 8(7) protected the returning officer’s decision as to the validity of the nomination paper’s form. It did not prevent an election petition challenging the validity of the nomination itself on a defect requiring information or investigation beyond the paper. The distinction drawn in R v Election court ex parte Shepherd (1975 QB 13.19) applied. The returning officer was not required to compare electoral numbers or polling-district prefixes with other information.
3. Responsibility for nomination papers. The candidate remained responsible for presenting valid nomination papers. The principles in Begum and Others v the Returning Officer for Tower Hamlets [2006] EWCA Civ 733, R (on the application of de Beer) v Balabanoff [2002] EWHC 670 and Sanders v Chichester supported that conclusion.
4. Statutory saving provision. Section 48(1) of the Representation of the People Act 1983 was directed to acts or omissions by the returning officer or persons acting in an official capacity. It did not save an election from candidates’ own breaches of mandatory nomination requirements. Morgan v Simpson (1974 1QB 151) concerned official breaches and did not support the wider construction advanced by the respondents. Even if section 48 applied, the breach was substantial and affected the election because it allowed ineligible candidates to stand and win.
5. Remedy and costs. The election for the Over ward was void and had to be rerun. Section 145 gave no power to declare the petitioner elected. The thrown-away votes doctrine was unavailable because no public notice had been given before the election. The petitioner recovered 75% of his costs: 25% from the returning officer and 50% from the first and second respondents, with several rather than joint and several liability. The third respondent, who had taken a neutral position, was ordered to pay nothing.