The Good Law Project, R (on the application of) v Electoral Commission

A declaratory order should record the court’s conclusion on the application of the law to the facts actually determined. It should not purport to decide questions of law in the abstract. A party cannot ordinarily introduce a new factual issue after judgment where the issue was not evidenced or determined and the party had an earlier opportunity to identify the omission. On costs, the court may make a single overall order reflecting success on one ground and refusal of permission on others, rather than separate issue-based orders. Permission to appeal depends on whether there is a real prospect of overturning the order, not merely on whether aspects of the reasoning are arguable.

This was a consequential judgment following the court’s merits judgment dated 14 September 2018, reported at [2018] EWHC 2414 (Admin). The claimant had succeeded on its permitted judicial review ground concerning whether three payments totalling £620,000 made by Vote Leave Limited to AggregateIQ Data Services Limited were referendum expenses incurred by Vote Leave under section 111(2) of the Political Parties Elections and Referendums Act 2000.

The court determined the proper form of declaration, considered whether a further £100,000 payment should be included, dealt with costs, and considered applications by the defendant and Vote Leave for permission to appeal. The court also referred to its earlier refusal of permission on two further grounds in [2018] EWHC 602 (Admin).

1. Declaration. The court’s reasoning in paragraphs 81 and 94 of the earlier judgment did not itself state the conclusion to be declared. The court had to decide the meaning of section 111(2) of the Political Parties Elections and Referendums Act 2000 only in its application to the facts of the claim. The declaration therefore recorded that the three payments totalling £620,000 were referendum expenses incurred by Vote Leave Limited.
2. Further payment. The claimant’s request to include a further £100,000 payment concerning advertising purchased by Veterans for Britain was refused. The transaction had not been supported by evidence or determined in the earlier judgment. The claim had been defined by reference to the three AIQ Payments, and it was too late to introduce the additional issue after judgment.
3. Costs. The claimant succeeded on the only ground for which permission had been granted but had been refused permission on two further grounds. A single order was appropriate. The defendant was ordered to pay £40,000 on account of costs, reflecting the applicable cap and the deduction of half the claimant’s costs incurred up to the permission hearing. No reduction was made for the later period, when only the successful issue remained.
4. Permission to appeal. Although some criticisms of the reasoning were reasonably arguable, an appeal had to address the order made. The relevant question was whether there was a real prospect of persuading the Court of Appeal that the AIQ Payments were not referendum expenses incurred by Vote Leave within section 111(2). The court found no such prospect and refused permission to appeal.

The judgment followed the court’s merits judgment dated 14 September 2018, reported at [2018] EWHC 2414 (Admin). The court also referred to its earlier refusal of permission to proceed on two further grounds in [2018] EWHC 602 (Admin). Applications by the defendant and Vote Leave for permission to appeal to the Court of Appeal were refused.