Friday, 6 March 2015

The Case for Public Interest Litigation

The Case for Public Interest Litigation

“Taxpayers will pay the cost of a failed bid to overturn an election result caused by a registration mistake. Two other candidates, Nick Le Cornu and Gino Risolli, took Mr Wickenden to court saying the election was unlawful. That was rejected in November and now the Royal Court has told the States to pay costs.”

“Commissioner Julian Clyde Smith made the costs ruling at the Royal Court on Thursday. He said it was in the public interest to hear the case, which is why he told the States to pay costs” (1)

Now back in 2014, we had the original hearing, and this was reported:

“While Commissioner Julian Clyde-Smith found that the mistake meant that technically the election law had been breached, he ruled out holding a by-election - saying that the error had not affected the outcome.” (2)

The costs are £20,000. The law had been breached, so it was hardly fair to charge Nick Le Cornu or Gino Risoli, any more that it was for any charge to be made for Sarah Ferguson’s recount. But who was responsible?

Scott Wickenden evidently made the mistake, but he also assumed the Parish of St Helier would check the nomination paper. There does not appear to be any legal requirement for Parishes to do this, but having taken upon the task of doing so, they should also incur responsibility for not doing so thoroughly. As the case noted:

“Shortly prior to the nomination meeting, Eric Blakely, the electoral officer for the Parish of St Helier, requested all candidates in the general election to submit their nomination forms to him so that he could check that the proposer and seconders were registered in the electoral lists for the relevant districts”.

“Scott Wickenden submitted his form as requested, and it can be seen from the form that Eric Blakely had gone through it, ticking the entry for the proposer and each of the nine seconders on the left hand side and inserting the requisite electoral numbers. On 16th September, 2014, and in error, he confirmed to Scott Wickenden that the nomination form had been correctly completed.”

But the original case was ruled out as not materially effecting the outcome – the law allowed this kind of discretionary judgement to be made in legal cases, and it was made by Julian Clyde-Smith. And one can see why – at the nomination meeting, Scott Wickenden had another seconder in reserve in case of problems:

“At the nomination meeting held on 17th September, 2014, Scott Wickenden passed the nomination form to Martin Roberts, who was acting as clerk to the meeting, who in turn handed it to the Constable, who was presiding. Scott Wickenden had with him Andrea Mallett, who was on the electoral register for St Helier District No 1, who was prepared to act as a seconder if any discrepancy had been highlighted. Nothing was said in relation to the nomination form by any of the parish officials or by any member of the public.”

And the law said: “If the Royal Court considers that any failure to conduct an election in accordance with this Law is not a matter of substance and has not affected the result of the election, the Court shall not declare the election void and not order a fresh election.”

Now the same Mr Clyde-Smith has ruled that the States of Jersey should foot the bill as this case was "in the public interest".

There is an interesting article “"Costs in Public Interest Litigation: Whose Pocket Should be Picked? By Karen Kong. The summary of the piece notes that

“In light of the public benefits arising from public interest litigation in the elucidation of public law, promotion of deliberative democracy and good administration, the court should adequately reflect such benefits in the cost allocation of public interest cases. Costs discretion should be exercised in a flexible and purposive manner, with due regard to access to justice concern, so that the future development of public interest litigation will not be unnecessarily stifled.” (3)

The problem with litigation when in the public interest is that it can be used to cause nuisance. And hence Karen Kong suggests that:

“Only when the judicial review is raising a point of law that guidance from the court should be sought will it justify using the public purse to fund the litigation”

“It must be right that public interest challenge should have sufficient merits to deserve the use of public fund.”

I think there is certainly a good case in law for not making Nick Le Cornu or Gino Risoli suffer the costs. Whatever may be thought about them as individuals, and Nick certainly has made a name for himself through his ill-judged tweet, that must be put aside in considering this case. This is a perfect example of what Karen Kong describes in her conclusion:

“The risks of costs liability pose a real burden on litigants who wish to pursue the public interest through judicial review. Meritorious cases, even though unsuccessful, that help to resolve issues of public importance in the society are contributing to the good administration of the government and enhancing participation in the democratic process. The court should in such circumstances depart from the usual order of costs to follow the event and exempt the applicants from bearing the litigation expenses of the respondent public authority. (3)

Looking further afield, a very similar principle is stated by the Hon. Robert J. Sharpe, Justice, Court of Appeal for Ontario who stated that litigants should not bear costs if:

“The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.” (4)

And Ellie Edwards writing in the Sydney Law review notes that “genuine public interest litigants should not be subject to the usual loser-pays rule.”

Although she does note that:

“a discrete approach has been taken to costs in circumstances where courts have concluded that a litigant has properly brought proceedings to advance a legitimate public interest, has contributed to the proper understanding of the law in question and has involved no private gain. In such cases the costs incurred have usually been described as incidental to the proper exercise of public administration.” (4)

Now in this instance, there was a case of gain in that the voiding of the election result, whatever steps were then taken, would leave a window of opportunity for Nick Le Cornu and Gino Risoli to try again. Nevertheless, the public interest, in settling this matter in case law – which had not occurred in Jersey before in these circumstances, should, I feel, have been the key consideration, and the gain was only potential, not actual.

Whether part of the cost should have been born by Mr Wickenden or the Parish of St Helier is another matter. The Court does not seem to have admonished either party. It determined that Mr Wickenden had made an honest mistake, which he was not aware of until after the election.

But the Parish check, a second set of eyes which he relied upon, proved unreliable, and I would hope that procedures will be improved to ensure this cannot happen again. It would be also helpful to know why it had happened: had the Parish been working from an out of date electoral role? Was there in fact (as happened in St Brelade in a number of instances in 2011) a case of someone moving address, being placed on a new roll, but not removed from the old? That needs to be investigated, but probably won't.

In the absence of a central database for checking on duplications, this remains a risk, and that it why it is important to know where the check went wrong, or else the public purse may have to write out a cheque again in the future.

(3) “"Costs in Public Interest Litigation: Whose Pocket Should be Picked? By Karen Kong.
(4) Access to Charter Justice, Hon. Robert J. Sharpe, Justice, Court of Appeal for Ontario
(5) Costs and Public Interest Litigation After Oshlack v Richmond River Council, Syney law review, Ellie Edwards

1 comment:

Nick Palmer said...

Yet again we see the tradional use of the ambiguity involved with the use of the spirit of the law versus the letter of the law, being invoked to achieve a desired result