P381/25 - [2025] EWHC 2320 (KB)

An initial hearing on the petitioner’s application to set a date and time for trial took place on 13 June 2025. Prior to that hearing, the first respondent indicated an intention to apply for the petition to be struck out or dismissed before trial. The second respondent gave a similar indication at the hearing. Pursuant to rule 13 of the Election Petition Rules 1960 (‘the Rules’), a respondent may apply to the election court or to a Divisional Court to stay or dismiss a petition before trial. It was upon that basis that directions were given for the filing of any rule 13 applications and the hearing of such applications.

The first and second respondents both applied under rule 13. Both contended that the petition disclosed no reasonable grounds for bringing it against them and that the law does not permit their inclusion as respondents to the petition. The first and second respondents also adopted arguments advanced by the third and fourth respondents to the effect that there were incurable defects in the petition such that the whole petition should be dismissed.

We dealt with the first and second respondents’ applications by first hearing the arguments as to whether they could be included as respondents to an election petition. Having concluded that they could not and therefore that the petition must be struck out against each of them, it was unnecessary to hear the first and second respondents on any of the other arguments. Indeed, it would have been improper to do so since they are not entitled to be respondents to the petition and accordingly have no standing on the wider issues.

Section 121(2) of the Act provides:

‘The member whose election or return is complained of is hereinafter referred to as the respondent, but if the petition complains of the conduct of a returning officer, the returning officer shall for the purpose of this Part of this Act be deemed to be a respondent.’

The nature of the complaints made in this case are such that the returning officer is deemed to be a respondent. It follows that the third and fourth respondents are properly named in the petition. However, the first and second respondents do not fall within the scope of section 121(2).

The scheme for parliamentary election petitions is an entirely statutory one. The High Court has no residual power or discretion to override the statutory scheme. There is no other provision within the Act permitting the joinder of respondents other than the elected member of parliament and the returning officer.

Mr Moore argues that he is entitled to join the first and second respondent ‘via common law principles’. The specific complaints made against the first respondent relate to the alleged non-delivery of election communication leaflets. Against the Cheshire Constabulary, Mr Moore raises allegations of harassment and failure to investigate election interference. Be that as it may, there is simply no statutory basis for the first and second respondents to be respondents to an election petition. Section 121(2) sets out who, by operation of law, is a respondent. It is not open to a petitioner to include any other parties as respondents. Contrary to Mr Moore’s argument that judges of the King’s Bench Division can apply the common law to go beyond the statute, the Court does not have any power to override the statutory provisions and to allow any other party to be a respondent to an election petition. None of the material Mr Moore placed before us demonstrates otherwise. The specific statutory process provided for by sections 120 and 121 of the Act does not provide a route to any legal remedy for the enforcement of common law rights or for seeking relief against third parties for alleged breaches of any statutory provisions.

Since the first and second respondents cannot be respondents to an election petition, it may not in fact be open to them to make an application to stay or dismiss the petition under rule 13. Certainly, we take the view that they are not entitled to be heard on whether the petition as a whole should be dismissed.

Section 157 of the Act provides:

“The High Court has, subject to the provisions of this Act, the same powers, jurisdiction and authority with respect to an election petition and the proceedings on it as if the petition were an ordinary action within its jurisdiction.”

The general case management powers of the High Court include the power to make an order of its own initiative (Civil Procedure Rules 3.3) and the power to strike out a statement of case (CPR 3.4).

Purporting to name someone as a respondent to a petition when that party cannot in law be a respondent amounts to an abuse of process. The procedure prescribed by the Act for challenging a parliamentary election cannot be used for litigating complaints against third parties. Further, it is not appropriate for third parties who are not in law entitled to be respondents to an election petition to be permitted to make representations on the substance or form of the petition.

In the interests of proper case management, we will declare that the first and second named respondents are not respondents to the petition. The petition should be struck out as against each of those parties and their names removed from the proceedings.

As a result of that decision, the petitioner’s application to vary the order of Master Armstrong falls away. Exactly the same considerations apply whether the first respondent is identified as Emma Gilthorpe or as Royal Mail Group Limited, or both.

We observe that the power to remove parties who are not properly named as respondents is part of the inherent power of the High Court, as preserved by section 157 of the Act. It is a power that can be exercised by any judge of the High Court. Had the first and second respondents invited the Court to take that course earlier, it could have been done at the hearing on 13 June 2025. Further, we take the view that it would have been more appropriate to make an application to strike out on behalf of Emma Gilthorpe rather than seeking to substitute the Royal Mail Group Limited. However, we do accept that the first and second respondents wished to give Mr Moore proper notice of their applications before advancing them. These matters may have a bearing on the exercise of our discretion in relation to the costs of the first and second respondent’s applications.