Green v (1) Hannah-Wood & (2) Rouse

In an election petition, the Petitioner had won the larger number of votes but the Returning Officer (the Second Respondent) mistakenly declared the second-placed candidate (the First Respondent) the winner. The only means to resolve the mistake was by election petition.

However, after the petition was at issue, the First Respondent ‘resigned’ from the council, creating a ‘vacancy’. The Second Respondent contended that this meant that to fill the ‘vacancy’ either (a) a by-election must be called, if demanded by 10 electors; or (b) the council would have to co-opt a person. Accordingly, the relief sought by the petition had been frustrated and it should be dismissed.

The Petitioner sought summary judgment on the petition from the Divisional Court; the Second Respondent said summary judgment under CPR r.24.2 might not be available, and proposed resolution by the Divisional Court on a Special Case under s.146 RoPA.

(1) Was CPR r.24.2 available on an election petition, or was a special case under s.146 RoPA required?

(2) Did the resignation of the First Respondent frustrate the relief sought by the petition?

(1) The Court did not need to resolve the matter, but was inclined to the view that CPR r.24.2 might not be available, and so would resolve the petition as a Special Case.

(2) No, the resignation of the First Respondent did not frustrate the petition, and the Court would declare and certify that the First Respondent was not duly elected and that the Petitioner was duly elected.

A curious case, involving a not-uncommon mishap. The explanation of the interplay between the Representation of the People Act 1983 and Local Government Act 1972 will be useful for election law practitioners.