Divisional Court dismisses Election Petition on grounds of defective service
A Divisional Court (Popplewell and Jeremy Baker JJ) has dismissed a Parliamentary Election Petition brought against Nadine Dorries, the Conservative MP for Mid Bedfordshire, by Tim Ireland, an unsuccessful independent candidate in the General Election held on 7 May 2015.
Mr Ireland’s petition alleged that Dorries was guilty of ‘illegal practices’ under the Representation of the People Act 1983 (“RoPA”), namely making false statements about a candidate contrary to s.106 RoPA and failure to include publisher details on election literature contrary to s.110 RoPA.
Having issued the petition within 21 days of Ms Dorries being returned, Ireland paid £5,000 security for costs into court on 29 May 2015. A copy of the petition had to be served on Ms Dorries “in the prescribed manner” (s.121(5) RoPA) and “[w]ithin the prescribed time” (s.136(3) RoPA). The Election Petition Rules 1960 (“EPR”) specify that the ‘prescribed time’ is five days, excluding weekends (EPR r.6(1)) and the ‘prescribed manner’ is “in such manner as a claim form is served” (EPR r.6(2)).
Mr Ireland’s solicitors sent the petition by first-class post to the office of her constituency Conservative Association on 4 June 2015. However, because candidates for election are individuals (not acting ‘in a course of a business’) they must ordinarily be served either in-person, or at their usual or last-known residence, unless they nominate a place or person or electronic means by which they will accept service.
On 10 June 2015, after the expiry of the 5 days, Mr Ireland’s solicitors applied ex parte and without notice for an order under CPR r.6.15(2), and Master Leslie ordered that that the steps already taken constituted ‘good service’. The Divisional Court heard Ms Dorries’ applications to set-aside the order of Master Leslie and to dismiss the petition as a nullity.
The Divisional Court held that, if a petitioner applied within the time limit, it would be possible for the Court to make an order for service in an alternative manner or at an alternative place (pursuant to CPR r.6.3(1)(e) and CPR r.6.15(1)) but only if the petitioner had been ‘unable’ to ascertain the respondent’s usual or last-known residence, having taken ‘reasonable steps’ to do so.
The Court did not decide whether or not it had the jurisdiction to retrospectively ‘deem’ good service (which might conflict with the strict time provisions of the RoPA and EPR), because it found on the facts that even if the power existed under CPR r.6.15(2), it should not be exercised in favour of Mr Ireland, because there was no ‘good reason’ for doing so.
(1) Although aware of the fact of the petition from 1 June 2015, Ms Dorries was not aware of the full contents of the petition until after the time period had expired.
(2) There was no attempt to serve Ms Dorries personally. She had done nothing to avoid or frustrate personal service: the decision to serve on the Association’s office, and not to serve personally, was taken early on.
(3) There was no evidence of steps taken to ascertain Ms Dorries home address, even though she had submitted it to the Returning Officer as part of the nominations process. The petitioner had had several weeks to seek this information, having threatened a petition as early as 22 April 2015. However, on the facts, there were no steps taken to satisfy the requirements of CPR r.6.9.
(4) There had been no attempts to serve by electronic or other means, or to use other methods of communication to ask Ms Dorries for an address for service.
(5) The decision having been taken to serve on the Association’s office, there was no explanation for why the application for alternative service was not made in time, and was not made until 10 June, or why it was made ex parte and without notice.
(6) The submission that the strictness of the RoPA and EPR regime for election petitions was not ‘necessary and proportionate’ and therefore a breach of the petitioner’s rights under Article 3 of the First Protocol of the European Convention on Human Rights was not accepted. Mr Ireland had had ample opportunity to achieve proper service of the petition without the need to apply after the expiry of time for doing so.
The order of Master Leslie of 10 June 2015 was set-aside, and the Election Petition being thereby a nullity would be dismissed. Mr Ireland was to pay Ms Dorries costs, with an interim payment of £25,000 to be made within 14 days.
5RB’s Greg Callus acted as junior counsel for Ms Dorries, led by Gavin Millar QC, and instructed by Clifford Chance.