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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Finch & Anor v Richardson [2008] EWHC 3067 (QB) (12 December 2008) URL: http://www.bailii.org/ew/cases/EWHC/QB/2008/3067.html Cite as: [2009] WLR 1338, [2008] EWHC 3067 (QB), [2009] PTSR 841, [2009] 1 WLR 1338 |
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QUEEN'S BENCH DIVISION
IN THE MATTER OF: an Aldermanic Election for the Ward of Coleman Street
In the City of London held on 4 June 2008
and in the Representation of the People Act 1983
Strand, London, WC2A 2LL |
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B e f o r e :
THE HONOURABLE MR JUSTICE UNDERHILL
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Sir Robert Finch (1) Michael Henderson-Begg (2) |
Claimants |
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- and - |
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Matthew Richardson |
Defendant |
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Mr Alexander Deane (instructed by Griffin Law) for the Defendant
Hearing date: 2nd December 2008
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Crown Copyright ©
The Hon Mr Justice Tugendhat :
"(2) If it is shown to the court by such evidence as to the court seems sufficient…
(a) that any act or omission of any person would apart from this section by reason of being in contravention of this Act be an illegal practice,…
(b) that the act or omission arose from inadvertence or from accidental miscalculations or from some other reasonable cause of a like nature, and in any case did not arise from any want of good faith, …
and under the circumstances it seems to the court to be just that either that or any other person should not be subject to any of the consequences under this Act of the act or omission, the court may make an order allowing the act or omission to be an exception from the provisions of the Act making it an illegal practice,… and upon the making of the order no person shall be subject to any of the consequences under this Act of that act or omission".
"(2) Relief under this section may be granted-
(a) to a candidate, in respect of any failure to deliver the return and declarations as to election expenses, or any part of them, or in respect to any error or false statement in them; or
(b) to an election agent, in a respect of the failure to deliver the return and declarations which he was required to deliver, or any part of them, or in respect to any error or false statement in them.
(3) The application for relief may be made on the ground that the failure, error or false statements arose….
(d) by reason inadvertence or any reasonable cause of a like nature and not by reason of any want of good faith on the applicant's part.
(4) The court may …..
(b) on production of such evidence of the grounds stated in the application and of the good faith of the application, and otherwise, as it considers fit, make such order for allowing an authorised excuses for the failure, error or false statement as it considers just".
i) The election expenses incurred by or on behalf of the First Claimant at the election in the aggregate exceeding the maximum amount specified in s.76 of the Act as identified in the statements filed on behalf of the Claimants, and;
ii) The errors and/or false statements in the return and declarations as to election expenses delivered by them to the appropriate officer after the above election pursuant to sections 81 and 82 of the Act as identified in the statements filed on behalf of the Claimants.
"Where any election expenses are incurred in excess of a maximum amount specified…any candidate…who
a) incurred… the election expenses, and
b) knew or reasonably ought to have known that the expenses would be incurred in excess of that maximum amount,
shall be guilty of an illegal practice".
"…..if a candidate or election agent fails to comply with the requirements of section 81 or section 82…he shall be guilty of an illegal practice."
"'Election expenses' means expenses incurred at any time in respect of certain specified matters that are used for the purposes of a candidate's election after the date when that person becomes a candidate at the election. The specified matters include: advertising of any nature; unsolicited material addressed to the electors; and transport costs….'
"Similar questions have been considered in the Courts of England and Scotland, and the decisions show that the Courts have kept three things in view in deciding whether illegal practices can be excused on the grounds of inadvertence coupled with good faith. The first question the Court is accustomed to ask is: What kind of person is the applicant? If he is he is a professional man, ignorance of law can not excuse his inadvertence, except, it might be, the case of ambiguity in a statute. He is bound to know that the whole of these matters are regulated by Act of Parliament. He has easy access to the Acts of Parliament and to manuals on election subjects and he is accustomed to consult such works. Further, if the applicant, although not a professional lawyer, has previous election experience, the fact that he may have forgotten that experience can not excuse his inadvertence. The second question the Courts asks is: What is the nature of the illegal practice? If it is something which the candidate or his agent had an interest to do, or which might affect the return of the candidate, the practice will be highly suspect. But if, on the other hand, there appears to be no reason whatever, personal or otherwise, why an illegal practice should have been followed, then the presumption is that what was done was done in good faith and merely from negligence. The third question is: What attitude has the applicant taken up when the mistake was discovered? Has it treated it lightly or defiantly? Or has it done everything he possible could to put it right?'
"anyone who reads the Act of Parliament must know that the use of such cards is an infringement of the Act, and although a man may not know the law because he has not taken the trouble to make himself acquainted with it, no one can call that 'inadvertence' within the meaning of section 23".
"There had been some debate in the election courts at the turn of the century as to whether ignorance of the law was 'inadvertence'. McCardie J resolved it in Nichol [v Fearby [1923] 1 KB 480]. In that case the question was similar to the present one, in that two municipal candidates, required to send both a return of election expenses and a declaration verifying it, failed to do so within the specified period and sought relief 'by reason of inadvertence… and not by reason of any want of good faith'. The inadvertence they each put forward was ignorance of their statutory obligations, McCardie J said (at 497-498):
'In my view the word "inadvertent" may be used according to our jus et norma loquendi as indicating either a negligent act, as distinguished from a careful act, or as indicating an unintentional, as distinguished from an intentional act. So, too, of an omission, as well as of an act… In my own view it is clear that ignorance of the law may fall within the word "inadvertence" … In Ex parte Walker (1889) 22 QBD 384 the Court of Appeal held and in my view unmistakeably held, that ignorance of the law may be "inadvertence" Any dicta to the contrary effect in earlier cases must, I think, be deemed overruled.'
In Smith and Sloan v. MacKenzie 1919 SC 546 Lord Skerrington took 'inadvertence' with its accompanying phrase in the statute (as here) 'or…any reasonable cause of a like nature'and said (at 550-551):
'The phrase is a somewhat curious one. It implies that inadvertence may be "a reasonable cause," and I assume that what is meant is that there must exist some reasonable explanation…. To say that a man has not adverted to a particular duty, and has consequently failed to perform it, may either imply gross and reprehensible negligence on his part, or again, it may mean that, being a human being, he has, thorough frailty, mad a mistake. In either case he has been guilty of negligence.'
A L.Smith LJ considered in Re Piers [1898] 1 QB 627 at 631, in the context of the Bankruptcy Act 1883, that 'inadvertence' points to 'forgetfulness or accident'.
And in the more recent case, on the nature of contributory negligence, Lord Evershed MR in Hicks v. British Transport Commission [1958] 2 All ER 39 said (at 47).
'I cannot help feeling that perhaps there has been an undue significance attached to the word "inadvertence", as though inadvertence was something necessarily distinct from negligence. The fact, of course, is that inadvertence may itself amount to negligence or it may not'.
Parker LJ said (At 50):
'As regards inadvertence, of course, it is a matter of degree. It is not every act of inadvertence which amounts to negligence. Equally in certain circumstances inadvertence may well amount to neglect.'
The election court is therefore afforded a comparatively wide range of meaning in applying the word, ranging from human error, through negligence to ignorance of the law. It seems to me in particular that the inclusion of ignorance of the law in the meaning of inadvertence in electoral law has given it a highly significant extension, one which might not be justified in the ordinary meaning of the word. "
"Mr Justice Wright, in granting costs against the applicant, said that the Court had reserved the question of costs in order to see if there was any general rule on the subject. Cases had been brought to their notice, but no general rule had been shown. Where the illegal practice was not serious, it did not seem to them that the opponents of the application for relief ought to have their costs. But where the illegality was serious, it was to the interest of the public not to prevent such matters from being brought forward. The illegality was serious in this case, and costs would therefore be allowed.
Mr Justice Kennedy concurred. He said that when ever a case was a serious one the freest inquiry ought to be encouraged to see that the Act had been observed".
Mr Justice Underhill: