WHEN LAW AND POLITICS COLLIDE : IT'S ALL ABOUT SERVICE
It is rare for cases about service of the claim form to reach the headlines. This, however, is what happened in Ireland -v- Dorries  EWHC 2781 (QB). Although service here relates to service of an Election Petition the court considered CPR Part 6 in detail. The issues raised are common to many claim form/service cases.
“The legislative intent which is apparent from the statute and from the rules is that what is to be a permitted method of service under CPR is also to amount to a prescribed manner of service under the statutory framework. That is a result which accords with good sense. The reason for the change in the rules from 1 October 2008 which introduced rule 6.3(1)(e) and the ability under rule 6.15(2) to validate service by an alternative method or at an alternative placed retrospectively was to meet the hardship of cases in which without any fault on the part of a claimant it was impossible to effect service otherwise within the allotted times.”
The applicant had issued an election petition seeking to overturn the election of the respondent. That petition was served at the address of the local Conservative party headquarters whereas it should have been served on the defendant personally, or at her home address. The Master made an order allowing retrospective service at the party headquarters. The respondent applied to set aside that order and it was set aside by Mr Justice Popplewell and Mr Justice Jeremy Baker.
- Service at the party headquarters was not good service.
- There was residual discretion by which the court could ratify, retrospectively, service at an incorrect address.
- In the current factors there were none of the factors which would justify the court exercising that discretion. Indeed the factors militated against the court exercising its discretion.
Mr Justice Popplewell
The respondent, Ms Dorries, has been a Member of Parliament for the Mid Bedfordshire Constituency since 2005. On 8 May 2015 she was returned as the member for the constituency in the General Election held on 7 May, having received 32,544 votes. The petitioner, Mr Ireland, was an unsuccessful Parliamentary candidate for the constituency, having received 384 votes.
On 28 May 2015 Mr Ireland presented a petition seeking a determination that Ms Dorries’ election was void as a result of conduct during the election campaign, which is alleged to have been contrary to sections 106 and 110 of the Representation of the People Act 1983 (“ROPA”). We are not concerned with the merits of those allegations.
On the same day as the petition was presented, 28 May 2015, Mr Ireland applied to Senior Master Fontaine to fix security for costs pursuant to section 136(1) of ROPA and EPR rule 5(1). Master Fontaine fixed the amount of security at £5,000 and that sum was paid into court, as required by section 136(2) of ROPA, on Friday 29 May 2015. The petition was from that time at issue within the meaning of section 137 of ROPA. Pursuant to EPR rule 6 Mr Ireland was required to serve notice of the petition and the nature and amount of the security, together with a copy of the petition, within five days after giving security. By reason of section 119 of ROPA weekends do not count in the computation of the five day period. The last day for service was, therefore, Friday 5 June.
On Tuesday 2 June Mr Ireland’s solicitors purported to serve the petition and notice of the amount and nature of the security by a letter sent by first class post to the office address of the Conservative Association in the constituency at St Michael’s Close, High Street, Shefford (“the Association address”). On 3 June Mr Ireland’s solicitors filed a certificate of service stating that service was effected on 4 June (being two days after posting the documents by first class post). Under rule 6.14 of the Civil Procedure Rules that would be the deemed date of service where service of a claim form is permitted to be made by first class post.
Ms Dorries was at the time conducting her Parliamentary duties in London according to her evidence. Her evidence is that she did not receive those documents until 10 June 2015, although she was aware of the existence and some of the content of the petition before then. She was first aware of the existence of the petition on Monday 1 June when Mr Ireland announced on his Twitter account that it had been issued. On 4 June she was telephoned by a Central Bedfordshire Council Legal Services Officer to be told that they had received a copy of the petition and that it bore the Association address. On the same day she was sent an email from the Guardian newspaper purporting to quote what was said to be the key extract from the petition and asking for her comment. She declined to comment because she had not seen the petition.
After 4 June, when she learnt that the petition had apparently been sent to the Association address, she asked her personal assistant to collect it, but the latter was unable to attend for personal reasons until Monday 8 June when she collected it and sent it by Recorded Delivery to Ms Dorries’ office in Westminster. Her evidence is that she opened it on Wednesday 10 June, although in the application notice it is said that she received it on 9 June. It is her evidence that the Association office is a small office staffed by volunteers which, apart from the period of the election campaign when it was used as her headquarters, is usually only open once a week on a Monday morning.
On 10 June 2015 Mr Ireland made an application ex parte to Master Leslie for permission to serve at an alternative place, namely the Association address, pursuant to CPR rule 6.15. The application was supported by a witness statement from Mr Ireland’s solicitor, Mr Carter, which asserted, amongst other things, that personal service would be “difficult” because Ms Dorries’ Parliamentary and media commitments would have taken her away from her usual place of residence which was in any event unknown by Mr Ireland; that her residential address could not be ascertained within the limited time available from reasonable inquiries; and that the petition was not unlikely to have come to her attention as a result of postal service on the Association address, which it was asserted was manned on a daily basis. There was no evidential basis put forward in that witness statement for the assertion that the office was manned on a daily basis.
In a subsequent witness statement of Mr Ireland himself, he says that he does not accept that the constituency office is open only one morning each week as asserted by Ms Dorries. His grounds for not accepting that are based on an article dating from November 2013 published by The Mirror referring to Ms Dorries saying that her daughter had at that time been employed to provide full-time secretarial support at the constituency office. What was said on that occasion, according to the article, was that the daughter’s main place of work was in the constituency and she stayed there for some of each week.
On 7 July 2015 Ms Dorries issued a further application to dismiss the petition on the grounds that the order of Master Leslie should not have been made and that there had been no timeous service of the petition. The application to set aside Master Leslie’s order was referred by him to this court without objection from the parties.
Section 121(5) of ROPA provides that:
“The petition shall be served in such manner as may be prescribed.”
Section 136(3) of ROPA provides that:
“Within the prescribed time after giving the security the petitioner shall serve on the respondent in the prescribed manner
(a) a notice of the presentation of the petition, and of the amount and nature of the proposed security, and
(b) a copy of the petition.”
Section 185 of ROPA defines “prescribed” as meaning “prescribed by rules of court”.
Section 182(1) of ROPA provides that:
“The authority having for the time being power to make rules of court for the Senior Courts may make rules for the purposes of Part II and this Part of this Act.”
That authority is the Rules Committee which has made a set of rules specifically applicable to election petitions in the form of the EPR.
Rule 2.2(4) provides:
“Subject to the provisions of the Act and these Rules, the practice and procedure of the High Court shall apply to a petition under these Rules as if it were an ordinary claim within its jurisdiction, notwithstanding any different practice, principle or rule on which the committees of the House of Commons used to act in dealing with election petitions.”
Rule 6 provides:
“(1) Within five days after giving the security the petitioner shall serve on the respondent within the meaning of section 121(2) or section 128(2) of the Act and on the Director of Public Prosecutions a notice of the presentation of the petition, and of the nature and amount of the security which he has given together with a copy of the petition and of the affidavit accompanying any reconnaissance.
(2) Service shall be effected in the manner in which a claim form is served and a certificate of service shall be filed as soon as practicable after service has been effected.”
Rule 19 provides:
“(1) Any period of time prescribed by Rules 5, 6 or 7 shall be computed in accordance with section 119 of the Act and shall not be varied by order or otherwise, but save as aforesaid rules 2.8 to 2.11 and 3.1(2)(a) of the Civil Procedure Rules 1998 shall apply to any period of time prescribed by these rules as if it were prescribed by the Civil Procedure Rules.”
“A claim form may… be served by any of the following methods –
(a) personal service in accordance with rule 6.5;
(b) first class post…
(c) leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10;
(d) fax or other means of electronic communication in accordance with Practice Direction 6A; or
(e) any method authorised by the court under rule 6.15.”
CPR Rule 6.9(2) provides that where the method of service is by first class post, or by leaving a document at an address, the relevant place of service is the usual or last known residence of the individual.
CPR Rule 6.9(3) provides that where a claimant has reason to believe that the usual or last known residence of the individual is an address at which the defendant no longer resides, “the claimant must take reasonable steps to ascertain the address of the defendant’s current residence…(“current address”)”.
CPR Rule 6.9(4) provides that:
“Where, having taken the reasonable steps required by paragraph (3), the claimant –
(a) ascertains the defendant’s current address, the claim form must be served at that address; or
(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –
(i) an alternative place where; or
(ii) an alternative method by which,
service may be effected.”
CPR Rule 6.9(5) provides that:
“If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.”
CPR Rule 6.9(6) provides that:
“Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –
(a) cannot ascertain the defendant’s current residence or place of business; and
(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).”
CPR Rule 6.15 provides:
“(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.”
It is common ground that the Association address was not a usual or last-known place of residence of Ms Dorries. Accordingly, there was only timeous service of the petition, and of the notice of the matters required by ROPA and EPR, if the order of Master Leslie of 10 June 2015 was validly made and is not set aside.
Mr Millar QC, on behalf of Ms Dorries, advances two alternative arguments. First he submits that there is no power to make an order for alternative service of an election petition under CPR rule 6.15. Secondly, and alternatively, he submits that if there is such a power it ought not to be exercised in the circumstances of this case.
Addressing the first submission, which is a jurisdiction question, I start by noting that rule 6.15 provides two different circumstances in which the court may authorise service by an alternative method. Under rule 6.15(1) an application may be made prospectively, before the time for compliance has expired, for the alternative place or method of service to be authorised. Secondly, rule 6.15(2) provides that authorisation may be granted retrospectively to validate purported service at an earlier time, when the application is made after the time for compliance has expired. It is not necessarily the case that the same principles apply to the two different alternatives.
Addressing first the question of whether service by an alternative method is permissible in relation to an election petition where what is sought is a prospective order under rule 6.15(1) I have concluded that such service is permitted by the statutory framework. Sections 121(5) and 136(3) of ROPA require service to be within the prescribed time and in the prescribed manner. The prescribed time and manner mean those prescribed in the rules which provide a hierarchy: see Ahmed v Kennedy  1 W.L.R. 1820. Rule 6.2 of EPR prescribes that service is to be in the manner in which a claim form is served. CPR rule 6.3 identifies the permitted methods of service for that purpose. CPR rule 6.3(e) specifically provides that alternative service pursuant to an order made under rule 6.15 is a valid and permitted method of service. If such an order is sought and made in advance of the expiry of the five day limit (set out in EPR rule 6.1), so that no question of EPR rule 19 coming into play arises, there is in my view nothing in the statutory framework to prevent such service falling within the range of permitted modes of service which are prescribed.
Mr Millar submitted that what was required by the statutory provisions and by EPR rule 6.2 was “the” manner in which service is made, laying emphasis on the definite article and the word “is”. He suggested that as a matter of linguistic analysis against the background of the statutory framework, that indicated that the legislative intent was only that methods of service under CPR rule 6.3 which were methods which a claimant was entitled to avail himself as of right fell within the rubric of a prescribed manner; and that what was therefore covered was a permitted method under any of subparagraphs (a) to (d) of rule 6.3(1), but not alternative service which required an order from the court under rule 6.3(1)(e).
I find myself unable to accept that argument. There is nothing in the language which to my mind dictates that conclusion. The legislative intent which is apparent from the statute and from the rules is that what is to be a permitted method of service under CPR is also to amount to a prescribed manner of service under the statutory framework. That is a result which accords with good sense. The reason for the change in the rules from 1 October 2008 which introduced rule 6.3(1)(e) and the ability under rule 6.15(2) to validate service by an alternative method or at an alternative placed retrospectively was to meet the hardship of cases in which without any fault on the part of a claimant it was impossible to effect service otherwise within the allotted times. That hardship is a hardship which is capable of arising just as much in the case of an election petition as it is in the case of a claim form. Mr Millar submitted that because a returning officer will always know the residential address of a candidate and is obliged to retain that residential address for 21 days, it will always be possible for someone bringing an election petition to have the means to discover the residential address of a candidate so as to be able to avail themselves of the ability to serve as of right under 6.3(1)(b) or (c) by reference to a last-known address. However, I am unpersuaded that there can be no circumstances in which that will not be an option available.
We were referred to Ahmed v Kennedy and Ali v Haques (10 October 2006 unreported), and the cases to which they refer, by way of the background and policy of the statutory framework in relation to election petitions; but to my mind there is nothing in those authorities, which were decided before the relevant change in the rules to which I have referred, which supports Mr Millar’s submission on this point.
That then leads to the second aspect of the jurisdictional question, which is whether there is a power to validate retrospectively under rule 6.15(2) when the application has not been made or heard prior to the expiry of the five day period imposed by EPR rule 6. That brings into play questions as to whether granting retrospective validation would cut across EPR rule 19 and in particular the prohibition in that rule on extending periods of time. I prefer for my part to express no view on that question and it is unnecessary to do so for the purposes of this case. That is because I am persuaded that if the power exists under rule 6.15(2) this is not an appropriate case in which that power should be exercised. The application by Mr Ireland to Master Leslie was made without notice. The application to set aside that order has been referred to us. We are not conducting a review, but a reconsideration of the merits of that application de novo on the basis of all the evidence which is now before the court.
The principles to be applied in cases of civil claims have recently been authoritatively identified by the Supreme Court in the case of Abela v Baadarani  1 WLR 2043. The main principles are these. An order under rule 6.15(2) can only be made if in all the circumstances of the case there is good reason to do so. That involves a value judgment based on an evaluation of a number of different factors. The mere fact that the defendant has learnt of the existence and content of the claim form cannot without more constitute a good reason to make an order under rule 6.15(2), but it is a critical factor. The most important function of service is to ensure that the content of the claim form is brought to the attention of the defendant. Another highly relevant factor is whether the defendant has shown himself unwilling to cooperate with service of proceedings. Another highly relevant factor is whether it is impossible or impracticable to effect service without an order from the court under rule 6.15(2).
The starting point for the exercise of the value judgment in this case is that EPR rules 6 and 19 set out a short period of time for service of the petition which may not be varied by the court. Rule 19 excludes the applicability of rule 3.1(2)(a) to that period of time, which is the general power conferred by the CPR to extend time after the time for compliance with a rule has expired. The time and manner of service are prescribed by the statutory framework in order to provide certainty and impose a speedy process as a matter of public policy. That is because it is undesirable that a challenge to the status of elected representatives should remain unresolved for any substantial period of time. As Simon Brown LJ put it in Ahmed v Kennedy at paragraph 40:”It is undesirable to have someone serving in a public office with doubts surrounding the legitimacy of his election.” Or as it was put by Tugendhat and Christopher Clarke JJ in Scarth v Amin  EWHC 2886 at paragraph16: “…the rules requiring timely and proper presentation of a petition are strict because it is in the public interest that there should be early clarity as to who has been elected.”
Accordingly, in the context of service of an election petition what amounts to good reasons for the purpose of a retrospective validation of an alternative method of service under CPR rule 6.15(2), if permitted at all, must have an additional degree of cogency and force if it is to justify a derogation from the public interest in speedy certainty which is reflected in EPR rules 6 and 19.
In this case there are a number of factors which militate against there being good reason to treat service by post on the Association address as good service. First, it did not bring the existence or content of the petition to the knowledge of Ms Dorries. It is true that she was by that stage aware of the existence of the petition, but she did not have by reason of that service (or by any other means) complete knowledge of the content of the petition before the expiry of the five days. It is true that as early as 22 April during the course of the election campaign the matters of which complaint is now made were set out in lengthy correspondence from her solicitor, but until she had had sight of the petition she was not to know which of those, if any, were to be the subject matter of the petition which she had learnt had actually been issued. Similarly, the fact that the email from The Guardian set out what was said to be a key part could not have told her with any certainty what the content of the petition was in its entirety.
Secondly, there was no attempt in this case to effect personal service on Ms Dorries. There is no evidence to support a suggestion that she had taken any steps to avoid personal service. She was not asked to make arrangements for personal service to be effected on her or to authorise a solicitor to accept service on her behalf. She was during that week, so far as the evidence shows, carrying out her Parliamentary business as an MP in Westminster. The election petition itself indicates that it was intended to serve the petition on the Association address. It is clear, therefore, that a decision had already been made by that stage not to make any attempt at personal service. The explanation for that decision is contained in paragraph 13 of Mr Carter’s witness statement. He says:
“The deadline for observing the petition is observed strictly by the court. Accordingly, the petitioner elected not to serve the petition personally upon the respondent because it was feared she would be difficult to serve using this method owing to her Parliamentary and media commitments which would have taken her away from her usual place of residence which in any event is unknown by the petitioner and made personal service problematical in the limited time available.”
That is an inadequate reason for failing to make any attempt at personal service. The suggestion that it might be difficult or problematical is no reason for failing to attempt to effect personal service. There are grounds for thinking that it would have been perfectly possible to effect personal service. Ms Dorries says that she would have been easy to serve in person at her office address at Portcullis House or by her being paged at the Palace of Westminster central lobby. There is a dispute as to whether that would have amounted to a contempt of Parliament in the absence of leave of the House, which would normally be given by the Speaker or prior to the election of the Speaker could be given by the clerk to the House of Commons. Leave could have been sought and there is force in the submission made on behalf of Ms Dorries that it would have been politically difficult if not impossible for an MP to refuse personal service of an election petition challenging his or her election after a request had been made to the Parliamentary authorities or after a request had been made to the Returning Officer.
Thirdly, there has been no sufficient attempt to discover Ms Dorries’ residential address so as to seek to effect valid postal service. There is a conflict in the evidence as to the extent to which Mr Ireland knew of an address within the constituency at which Ms Dorries says she is resident and the extent to which she is (or was at the relevant time) resident there. We assume for the purposes of this application that Mr Ireland did not know of her residential address. Nevertheless, it appears that there was simply no attempt at any stage to find out that address. It is significant that the allegations in the petition had been raised in correspondence by Mr Ireland’s solicitors during the course of the election campaign on 22 and 23 April 2015 and the skeleton argument served on behalf of Mr Ireland on this application positively asserts that it was clear from that moment that he intended to pursue those allegations by way of a claim after the election. Mr Ireland and his legal advisors therefore had a period of at least some six weeks within which to make inquiries as to her place of residence. It appears that no inquiries were made.
Fourth, no attempt appears to have been made to use other methods to bring the existence and content of the petition to the knowledge of Ms Dorries. Mr Ireland has exhibited to his witness statement printouts from the websites of the Conservative Association and the UK Parliament, each of which provide readily available public information with contact details for Ms Dorries. The Conservative Association site gives by way of address the Association address, but it also includes as a means of contacting her a telephone number which is obviously a London number beginning 0207 and a website through which at the very least inquiries might be made. The UK Parliament website provides an email address which appears to be a personal address on the parliament.uk domain. Steps could have been taken to use those channels first to seek to discover her whereabouts in order to effect personal service; secondly to make inquiries about her place of residence and, thirdly, to send copies of the petition so as to take all steps which were reasonably available to ensure that the content of the petition came to her attention.
Fifth, there has been no explanation provided for the delay in seeking an order under CPR rule 6.15(2) or for making that application without notice. Mr Ireland was advised by legal advisors who must be taken to have been aware of the statutory framework and the applicable procedural provisions. If service by an alternative method under rule 6.15 was to be the method which was to be relied on, then that must have been apparent to those advising Mr Ireland from the moment that the petition was presented; indeed, it may well have been apparent to them from a much earlier stage at which a decision was taken that a petition would be presented. There is, so far as the evidence discloses, simply no reason why an application could not have been made on notice within the five days permitted by EPR rule 6. Applications under the statutory framework are given priority and are regularly dealt with swiftly and expeditiously in order to comply with the tight statutory timetable.
Mr Millar submitted on behalf of Mr Ireland that there need to be taken into account in making the value judgment on the application pursuant to rule 6.15(2), the rights of the petitioner under Article 3 of Protocol I; and in particular that although the desideratum of speedy certainty is a legitimate aim of the statutory framework, nevertheless to refuse to exercise the power under 6.15(2) retrospectively to validate service in the circumstances of this case would not be a necessary or proportionate way of furthering that aim. I am unable to accept that submission. All the factors which I have identified suggest that there was open to Mr Ireland in this case ample reasonable opportunity to achieve service without having to apply after the expiry of the period for retrospective validation.
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