Absalom v Gillett: QBD 1995

An application was made under rule 13 to strike out a local government election petition for non-compliance with s.136(3) and rule 6: the petitioners there had served the notice on the returning officer but had not served the successful candidates. The question arose as to whether a candidate should be joined to an application for an election petition.
Held: A party whose very status as a democratic representative is sought to be impugned by litigation before the court should have the right to be heard. It is an affront to justice that the successful candidates have no right to be heard on this petition. Successful candidates whose election is impugned by a petition such as this should be made respondents. ‘There is, so far as we are aware, no material difference between the statutory provisions and rules in play in these authorities and those with which we are here concerned.’ and ‘It is quite plain that the whole of the case law to date is one way, and supports the proposition that a successful candidate whose election is sought to be impugned must be made a respondent, and that if he is not the petition cannot go forward. . . . If a petition is to be brought, it must be so served [ie upon the successful candidate]. The requirement is mandatory . . . It follows that this petition is incompetent, and must be struck out. We reach this conclusion with very considerable regret. In the course of argument we made no secret of our view that, if the respondent’s application was good, an injustice would be perpetrated. We remain of that view. This petition has at least arguable merits . . . We greatly doubt whether the public interest in the speedy determination of election disputes – an interest which we readily acknowledge – requires so draconian a regime as regards time for service as that created by rule 19 of the Election Petition Rules 1960. We should have thought there should be scope for some limited judicial discretion to extend time, though no doubt it would be sparingly exercised, and only if very good cause were shown. But that is not the present position. Given the present state of the law, the application to strike out must succeed.’
Laws and Forbes JJ
[1995] 2 All ER 661, [1995] 1 WLR 128
England and Wales
Citing:
CitedWilliams v Mayor of Tenby CCP 1879
The defendant had not given appropriate notices under the act and complained that his petition had been struck out: ‘It is said that there would be hardship supposing money deposited, if mere omission of notices should prevent a petition. I see no . .
CitedDevan Nair v Yong Kuan Teik PC 1967
(Malaysia) The Malaysian election rules provide in certain circumstances for service by a notice published in the Gazette but such notice was in the event out of time.
Held: The respondent’s appeal should be allowed and the petition struck . .

Cited by:
CitedUllah and Others, Ahmed v Pagel, Scallan, Kennedy CA 12-Dec-2002
The claimants sought to issue election petitions to challenge the results of local elections. The petitioners had complied with all the rules save that they had failed to serve the notice of presentation within the five day period. The claimants . .
CitedGough v Local Sunday Newspapers (North) Ltd and Another CA 12-Mar-2003
The appellant claimed he had been libelled, when he was called incompetent by the respondent in the way he dealt with finding an uncounted bundle of votes after an election. He appealed a finding of justification. The finding was based upon an . .

These lists may be incomplete.
Updated: 12 February 2021; Ref: scu.179772