Julie Green v Patricia Josephine Hannah-Wood & Anor

Where an election petition challenges the validity of a local government election, the petition must proceed even if the person whose election is questioned resigns. A person declared elected contrary to the statutory voting rules has not in fact been elected and cannot lawfully accept or resign from the office. The election court must determine both whether that person was duly elected and whether another person was duly elected. The statutory process for filling a casual vacancy is suspended until that determination. The court may, where necessary, restrain steps to fill the vacancy pending determination of the petition.

A local government election was held for the Marsden West Ward of Nelson Town Council. The petitioner received 242 votes, but the returning officer mistakenly declared the first respondent elected with 242 votes and the petitioner with 177 votes. The first respondent subsequently resigned, and notice of a casual vacancy was given. The petitioner brought an election petition under section 127(b) of the Representation of the People Act 1983, alleging breaches of rule 50 of the Local Elections (Parishes and Communities) (England & Wales) Rules 2006.

The court directed that the issue be stated as a special case under section 146 of the 1983 Act. The central question was whether the resignation frustrated the petition or prevented the court from determining that the petitioner was duly elected.

1. Disposition. The court directed that the matter proceed as a special case. Had the first respondent not resigned, the petitioner would have been determined to be duly elected.
2. The court was inclined to accept that the bespoke statutory scheme governing election petitions and the Election Petition Rules 1960 prevailed over the general summary judgment procedure in the Civil Procedure Rules. Section 146 supplied a specific procedure where a petition raised a point of law and no facts were in issue. The issue was resolved through the special-case procedure, so the court did not finally determine the availability of summary judgment.
3. Section 139(3) of the Representation of the People Act 1983 required the petition to be proceeded with notwithstanding that the respondent had ceased to hold the office to which the challenged election related. Section 145 required the election court, at the conclusion of the trial, to determine whether the challenged person or any other person was duly elected.
4. The distinction between being elected and being duly elected could not be used to treat an erroneous declaration as an effective election. Rule 50 required the returning officer to declare the candidate receiving the most votes elected. A person declared elected despite receiving fewer votes had not in fact been elected and could not lawfully accept or resign from the office.
5. The statutory provisions concerning casual vacancies did not supersede the petition. Until the election court determined the petition, it could not be known whether a casual vacancy existed or whether the duties under section 89 were engaged. The process under section 89(6) was therefore suspended pending determination.
6. Paragraph 43 of Schedule 12 to the Local Government Act 1972 preserved the validity of local-authority proceedings despite a vacancy or defect in election or qualification. It did not validate the challenged person’s acceptance or resignation. The court indicated that it would have jurisdiction, where appropriate, to restrain the local authority from proceeding with a further election or co-option pending determination of the petition.

Mr Justice Soole agreed that section 139(3) resolved the apparent conflict between the election-petition provisions and the casual-vacancy provisions.