ELECTIONS

Abuse of power - election candidates - judicial review - local elections - defective nomination papers - undertaking by returning officer to check nomination papers - nomination deadlines

R (on the application of Begum) v Tower Hamlets London Borough Council: QBD (Admin) (Mr Justice Keith): 27 April 2006



The claimants (B) applied for judicial review of a decision of an electoral returning officer, appointed by the defendant local authority, that the nomination papers submitted by B in respect of forthcoming local elections were invalid. B further sought an order that the returning officer countermand the local election and call a fresh election.


B had wished to stand as candidates in a local election that was due to occur on 4 May 2006 and had submitted nomination papers in support of their candidature. The timeline and procedure for the elections was governed by the Local Elections (Principal Areas) Rules 1986.


The returning officer had indicated to the electoral agents of B and other prospective candidates that she would assist with checking that nomination forms submitted were correctly completed but that forms submitted at the last moment would not be checked. B's nomination papers had been submitted in good time, but after the deadline for nominations had expired they were declared invalid because the electoral numbers given on the papers did not correspond with those in the electoral register in force, as was required by the rules. Other candidates who had submitted defective nomination papers had been informed of the defects before the expiry of the deadline for nominations and had been able to rectify their nomination papers in time.


On the instant hearing, issues arose as to whether the returning officer acted contrary to the rules by failing to determine as soon as practicable whether: B had been validly nominated in forthcoming local elections; the returning officer acted contrary to a legitimate expectation that nomination papers submitted on behalf of B would be checked before the deadline for nominations so that any defects could be remedied in time; it was appropriate for the court to grant the relief sought by way of judicial review.


Hugh Southey (instructed by Birnberg Peirce & Partners) for the claimant; Timothy Straker QC, Robert Walton (instructed by the local authority solicitor) for the defendant.


Held, although the rules required the returning officer to decide whether a candidate had been validly nominated as soon as was practicably possible after nomination papers had been delivered, there was no proscribed timescale for the determination and the rules did not require her to draw any defects in the nomination papers to B's attention before the deadline for nominations expired. The practice that the returning officer had adopted of checking nomination papers for defects so that they could be rectified before the deadline for nominations expired, while laudable, was a voluntary arrangement that was neither contemplated nor required under the rules (R v Election Court, ex parte Sheppard [1975] 1 WLR 1319 considered).


The information given by the returning officer to B's electoral agents amounted to an undertaking that nomination papers submitted in good time would be examined in advance of the deadline for nominations and that electoral agents would be informed of any defects in the nomination papers before the deadline expired. The returning officer's failure to do so in relation to B amounted to unfair treatment of B.


Furthermore, it appeared that B were placed in a different position to other candidates who had also delivered defective nomination papers in good time but who had been given an opportunity to rectify them. Accordingly, the unfairness that occurred amounted to an abuse by the returning officer of her powers.


In the circumstances, judicial review was an appropriate forum to dispose of the issues in the instant case and, while requiring an election to be countermanded was a serious step, it was a power that was open to the court and that should be exercised. If an election occurred, the only way that it could be questioned would be by way of an election petition. It was unlikely that any new evidence would emerge on such a petition and, furthermore, it was uncertain that the returning officer's error could be rectified by an election petition. Accordingly, it was better that the error should be rectified before the election occurred and B would be allowed to stand in a fresh election provided that they submitted valid nomination papers (R v Balbanoff, ex parte de Beer (2002) The Times, 25 April considered). Application granted.





FAMILY


Civil procedure - marital status - protective costs orders - public interest - same-sex partners - issues of general public importance - quasi-public proceedings - prospects of success - private interest

Susan Wilkinson (Petitioner) v (1) Celia Kitzinger (2) Attorney-General (Respondents) and Lord Chancellor (Intervener): Fam Div (Sir Mark Potter (President Fam)): 12 April 2006


The petitioner female (W) applied for a protective costs order in respect of proceedings against the first respondent female (K).


W and K, who had been domiciled in the UK, had married under the law of British Columbia, which recognised as valid marriages between persons of the same sex. W had sought a declaration under section 55 of the Family Law Act 1986 that her marriage was a valid marriage at its inception, and a declaration that the terms of section 11(c) of the Matrimonial Causes Act 1973 read literally and then, taken alone or in combination with the effect of sections 212 to 218 of the Civil Partnership Act 2004, were incompatible with the European Convention on Human Rights.


W's case was that the failure to recognise her marriage as a lawful marriage constituted a breach of articles 8,12 and 14 of the convention. The Lord Chancellor intervened in the proceedings pursuant to section 5 of the Human Rights Act 1998.


W submitted that her case had a real prospect of success; the issue of non-recognition of same-sex marriage was of significant and general public importance and that public interest required that the issue be resolved; she had no private interest in the case of a kind that would set her or K apart from any applicant with locus standi in public law proceedings; she and K had modest savings and, if a protective costs order was not granted, they would have to seriously consider whether to continue with the case.


Karon Monaghan (instructed by Liberty) for the petitioner; Helen Mountfield (instructed by the Treasury Solicitor) for the second respondent and the intervener.


Held, the instant proceedings were essentially 'quasi-public' in the sense that they went to matters of status, were essentially directed to the elucidation of public law and might appropriately have been brought in the Administrative Court but for section 55 of the 1986 Act. Accordingly, the application should be approached on the basis of the principles governing the making of protective costs orders in public law cases (R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 applied).


W's case was not misconceived. There was sufficient material available for an argument that the requirement of the 2004 Act that a marriage between same-sex partners abroad must, on registration, be treated as a civil partnership and not a marriage was, on the face of it, discriminatory under article14 of the convention on the grounds of sexual orientation. However, the hurdle to be overcome was the requirement to tie such discrimination to articles 8 and12.


The issues raised by W did not require resolution as a matter of general public importance. There was scant evidence that a substantial number of same-sex couples were in the same position as W and K, or considered that the status, rights, and responsibilities accorded to them under the 2004 Act disadvantaged or demeaned them in any way in comparison to married couples. No clarification of the law was necessary. W was seeking a change in the law. It was difficult to see that the public interest required change so soon after the passage of the relevant legislation.


Furthermore, the issues raised related to a measure carefully considered by Parliament with a view to producing equivalence, in a context in which the European Court of Human Rights clearly recognised the wide margin of appreciation enjoyed by the states (Secretary of State for Work and Pensions v M [2006] 2 WLR 637, considered).


Where the applicant in private or public law proceedings was pursuing a personal remedy, albeit her purpose was essentially representative of a number of persons, it was difficult to see why, if a protective costs order was otherwise appropriate, the existence of an applicant's private interest should disqualify her from the benefit of such an order. The nature and extent of the 'private interest' and its weight in the overall context should be treated as a flexible element in the court's consideration of whether it was fair and just to make the order.


It was not unreasonable, unfair or unjust, in the absence of evidence of real hardship, that W should be at risk of at least a contribution to the costs of an intervener who had a proper interest in opposing the claim, and it was unlikely that W would discontinue with the proceedings if she was refused the protective costs order provided that the costs were quantified on a reasonable basis. A cap of £25,000 was imposed. Application refused.





PLANNING


Gypsies - injunctions - planning permission - travellers' sites - pending appeals against refusal of planning permission

Wychavon District Council v Rafferty and ors: CA (Civ Div) (Sir Andrew Morritt C, Lord Justice Tuckey, Sir Peter Gibson): 27 April 2006


The appellant Romany gypsies (R) appealed against a decision refusing to amend an injunction obtained by the respondent local authority.


The injunction had been obtained ex parte and restrained R from stationing caravans, depositing hardcore or using the land for residential purposes. R subsequently applied for planning permission to use the land to station three mobile homes and several touring caravans. The application was refused and R lodged an appeal to a planning inspector. R moved caravans onto the land and made an application to vary the injunction.


The local authority made an application for committal on the grounds that R had breached the injunction. R's application was dismissed and the judge ordered them to be committed to prison for six weeks, suspended on the condition that the caravans were removed.


R contended that the judge had erred in his refusal to vary the injunction by following the case of Mid-Bedfordshire DC v Brown [2005] 1 WLR 1460, which could be distinguished factually from the instant case; and by failing to appreciate the substantial merits of the planning appeal.


Mark Willers (instructed by South West Law) for the appellant; Saira Kabir Sheikh (instructed by Sharpe Pritchard) for the respondent.


Held, while the facts of Mid-Bedfordshire DC v Brown were distinguishable from the facts in the instant case, it was of no consequence. The judge had been well aware of the facts and had not slavishly followed the case, but had applied the principle of the case and he could not be criticised for doing so.


The planning inspector who eventually decided the appeal would have more evidence than had been before the judge. It was not the Court of Appeal's function to second-guess the outcome of the appeal, South Buckinghamshire DC v Porter [2004] 1 WLR 1953 applied. The judge had assessed the merits of the appeal and had held that, while it was not hopeless, it had no real prospect of success and there was nothing perverse in his decision. Accordingly, the application to vary the injunction was non-sustainable. The grounds taken either collectively or individually were not sufficient to justify interference with the judge's discretion. Appeal dismissed.





SOCIAL SECURITY


Incapacity benefit - correct method of computing earnings when deciding entitlement to invalidity benefit - self-employed earnings

Secretary of State for Work and Pensions v Doyle: CA (Civ Div) (Lords Justice Waller, Sedley and Sir Christopher Staughton): 27 April 2006


The appellant secretary of state appealed against the decision of a social security commissioner on the computation of the earnings of the respondent (D) when deciding D's entitlement to invalidity benefit. A person who, like D, was otherwise entitled to invalidity benefit became disqualified if she was capable of work.


The Social Security (Incapacity for Work) (General) Regulations 1995 set out detailed provisions that included an exemption of earnings up to a fixed amount from work done on the advice of a doctor. The limit was not a penalty for working while drawing invalidity benefit - it was designed to encourage people on invalidity benefit, acting on medical advice, to return to the world of work.


D had an income from student lodgers for whom she shopped, cooked and cleaned.


The commissioner concluded that D's net weekly earnings had been such that she was to be treated as capable of work only during the eight weeks in which her net earnings had exceeded the limit set by regulation 17 of the 1995 regulations.


The secretary of state contended that the commissioner had not been at liberty to compute D's earnings week by week because the calculation was governed by regulation 11 of the Social Security Benefit (Computation of Earnings) Regulations 1996, which required the net weekly earnings of self-employed claimants to be averaged over a one-year period, or such shorter period as circumstances might dictate.


Martin Chamberlain (instructed by the solicitor for the Department of Work and Pensions) for the appellant; Desmond Rutledge (instructed by Pierce Glynn) for the respondent.


Held, the commissioner had been wrong to hold that the 1996 regulations did not apply. The entitlement to invalidity benefit was found in part II of the Social Security Contributions and Benefits Act 1992, and regulation 3 of the 1996 regulations required any calculation of earnings for the purposes of that entitlement to be calculated in accordance with those regulations, which expressly required averaging. The express purpose of the 1996 regulations was to give effect to part II of the 1992 Act. The commissioner's reasons for taking a contrary view were mistaken. D's case was remitted to the commissioner. Appeal allowed.