Murphy v The Electoral Commission

Under Political Parties, Elections and Referendums Act 2000, the Electoral Commission must return the original referendum return and accompanying documents to the responsible person after the prescribed retention period if requested. The Act does not require the Commission to destroy copies or stop publishing them while it has a legitimate reason to retain them, including an ongoing compliance investigation.

A breach of that return duty does not automatically create a private law claim. The statutory scheme and the availability of judicial review did not indicate an intention to confer a private right of action for breach of statutory duty. Conversion concerns tangible chattels and requires total deprivation of possession. A private law claim seeking to enforce the statutory duty was therefore misconceived and an abuse of process.

The claimant was the responsible person for Grassroots Out Limited, a permitted participant in the 2016 referendum. Under sections 120 and 122 of the Political Parties, Elections and Referendums Act 2000, he submitted the campaign spending return to the Electoral Commission.

After the two-year period in section 124(3), he requested its return and sought the destruction of copies and cessation of online publication. The Commission returned the original while investigating possible electoral offences, but retained and published copies. The claimant brought a private law claim for breach of statutory duty, conversion and exemplary damages. The Commission applied to strike out the claim.

The central issues were the proper construction of section 124, whether the statutory duties supported a private law action, whether conversion was arguable, and whether the claim should instead have been brought by judicial review.

1. Construction of section 124. Section 124(3)(a) confers a power to destroy the return or accompanying documents; it does not impose a duty to do so. Section 124(3)(b) imposes a duty to return the original return and accompanying documents to the responsible person at the end of the two-year period if requested. It contains no duty to return copies or to destroy them.
2. The Commission may retain and publish copies for the period during which it keeps the return. While its investigation into possible non-compliance remained open, it had a legitimate reason to retain the documents in connection with its statutory functions, duties and powers under PPERA. The court did not decide whether publication could continue after the investigation and any related appeal.
3. Breach of statutory duty. Applying the principles stated in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, section 124(3) might benefit a limited class, but the statute contained no indicators that Parliament intended to confer a private right of action. Judicial review provided the proper means of enforcing the Commission’s public law duty. The claimant therefore had no private law cause of action.
4. Conversion. Conversion applies only to chattels. It could not concern information in the return and required total deprivation of possession and use of the physical original. The claimant had not been wholly deprived of it, so no arguable conversion claim existed: OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1 (HL).
5. The claim was misconceived and an abuse of process. The proper route for enforcing the return duty was judicial review, applying the exclusivity principle in O’Reilly v Mackman [1983] 2 AC 237 (HL), as discussed in Trim v North Dorset DC [2010] EWCA Civ 1446, [2011] 1 WLR 1901 (CA). The claim was struck out under CPR 3.1 and 3.4.
6. The observations concerning exemplary damages under Rookes v Barnard [1964] AC 1129 (HL) were unnecessary to the decision.