Monday, 8 March 2010

The political parties will breath a sigh of relief - especially with an election in the offing....

The High Court has held that Election Courts cannot make orders for costs against third parties (like political parties or constituency associations) where it sets aside an election because a candidate is guilty of fraud.  Mr Election Commissioner Richard Mawrey QC (of Banana Republic fame) found terrible election fraud in local elections in Slough:

He found that Mr Khan and his agents had caused the names of non-existent people to be entered on the electoral register for the ward, and had then applied for postal votes in their names. In doing so they had been guilty of corrupt and illegal practices, including the corrupt practice of impersonation. These practices could reasonably be supposed to have affected the result of the election, and he therefore declared Mr Khan's election void. He ordered Mr Khan to pay Ms Simmons' costs of the petition, which were to be assessed on an indemnity basis unless otherwise agreed.

Mr Khan did not pay the costs (£215,775.95):

Attempts to enforce payment were unsuccessful, and in due course Mr Khan was adjudged bankrupt on a petition presented by Ms Simmons as a result of this debt. The Official Receiver was eventually to say that there was no apparent prospect of the distribution of funds to creditors. 

So the winner decided to seek her costs against those who funded the action:

Accordingly, Ms Simmons decided to investigate how Mr Khan's defence of the election petition had been funded with a view to making an application for costs against, among others, the Conservative Party or the Slough Conservative Association, even though they had not been parties to the petition.

It turned out that the Conservatives had arranged some legal expenses insurance and Mr EC R. Mawrey QC made an order for disclosure of the policy and in so doing said this:

    "… it would probably come as somewhat of a surprise to the general public that, where an official candidate of a national political party is the petitioner or the respondent to an election petition, that political party does not automatically assume responsibility for the costs of its own candidate in promoting or defending the petition and responsibility for the costs of the other side in the event of defeat. Given that the political party stands to gain or lose by the result of the petition, some degree of responsibility might be expected. This was especially the case in Slough where the success of Eshaq Khan in the 2007 election meant that the Conservatives had a small but controlling majority on Slough Council and his removal from office would (at least pending the by-election) return the authority into being a 'hung council'.
    Having received no submissions and having carried out no research on the subject, I simply express interest in the question whether courts in the past have considered the extent to which an officially adopted candidate might expose the political party who adopted him to a degree of vicarious liability for any misdeeds on his part in the course of seeking election. It is not to be thought that I am necessarily encouraging Ms Simmons to attempt to mine a new lode of jurisprudence but, given the nature of the submissions on her behalf by Mr Millar QC, the question might arise in some form were this matter to be taken further."
    An application for costs from the Conservatives then came before Keith J.   It failed (see judgment)  - essentially the ancient election petition legislation has no provision for making third party costs orders save in very special circumstances -  Keith J:
Finally, I return to the mischief which Mr Millar says should be avoided. The election petition is the only real weapon to combat electoral fraud in general, and registration and postal voting fraud in particular. Yet electors and unsuccessful candidates may be discouraged from bringing meritorious petitions if they know that, in the event of an order for costs in their favour not being met by an unsuccessful respondent, they will not be able to recover their costs from, say, a person or body which funded the unsuccessful defence to the petition, however unmeritorious that defence may have been. But it would be unwise to take that too far. Where the unsuccessful candidate is the official candidate of one of the major political parties, their petition will invariably be funded by the political party for whom they are standing. A major political party is less likely than an individual candidate to be put off funding an election petition simply because it may not be able to recover its costs later on. All the more so if there is a convention – which Mr Millar told me the Labour Party had hitherto thought there was – that if the defence of an unsuccessful respondent to an election petition has been funded by a political party, the political party will pay the costs of the successful petitioner. In any event, though, if it is thought that a political party which funds the costs of the defence of an unsuccessful respondent should pay the costs of the successful petitioner, that cannot be achieved by the courts grafting such a power on the Act when the language of the Act prevents that from being done. It is a matter for Parliament to legislate on, in the same way that if electoral fraud is to be combated, the real remedy, as Mr Mawrey said at the end of his judgment on the petition and in his report to the High Court, was to introduce proper measures which enables such frauds to be detected.


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