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30 September 2013
Roger Pearson reports on a decision that could open the floodgates for election sound-alikes
Two High Court judges sitting as an election court refused to outlaw the actions of a retired headmaster who stood in European elections as the Literal Democrat candidate.
The unsuccessful Liberal Democrat, Adrian Sanders, who had challenged his opponent's candidacy, declared: "This judgment, if it is to stand, is now declaring open season for sound-alikes and spoiler candidates in future elections."
Sanders was pipped to the Plymouth and Devon seat by just 700 votes. Tory Giles Chichester took the seat, but the Lib Dems claimed his success was the result of confusion caused by Literal Democrat Richard Huggett. He polled 10,203 votes, compared with the 74,253 polled by Sanders and the 74,950 by Chichester.
Jane Hart-Lovelace, of London solicitors Nicholson Graham & Jones, spear-headed the Lib Dem's court challenge with colleague Piers Coleman.
In a 44-page written judgment, Justice Dyson, who sat with Justice Forbes, said although it might be obvious that the description Literal Democrat was calculated to confuse voters, it was clear that Parliament had focused on certain minimum criteria for identifying election candidates. "It is clear that the rules do not prohibit candidates, whether out of spite or a wicked sense of fun, from describing themselves in a confusing way or indulging in spoiling tactics," he said.
The court found that the returning officer had no power to reject a nomination paper on anything other than the established legal grounds unless the paper was "manifestly a sham". The court did not consider this one was. "In the light of this I think the comment that it is now open season for spoiler candidates is right," says Hart-Lovelace.
When litigation reached its final stages last month the legal team had prepared a carefully researched court room foray into election law that has resulted in a sign-post ruling for the future.
In its initial stages, however, the challenge to the standing of Literal Democrat was launched at break-neck speed.
Nominations closed on a Thursday, the Lib Dems were alerted to the problem the following day after a local paper described Huggett (the Literal Democrat) as the Liberal Democrat candidate. They instructed Nicholson Graham & Jones on the Monday and judicial review moves were before the High Court that Friday.
Speed was vital in the first instance, says Hart-Lovelace, not least because of the logistical problem of reprinting and distributing over half a million ballot papers.
When the initial judicial review moves failed there was no appeal, partly because of the short time-scale and partly because there was still no tangible evidence of the degree of confusion that would arise.
Hart-Lovelace says after the election there was no doubt that Huggett's Literal Democrat tag had caused a great deal of confusion and his nomination had to be challenged. "When you say 'Literal and Liberal' they don't sound that alike," she says. "However, when they are written on paper they look very alike and there is a major danger of confusion."
In court the case for the Lib Dems was argued by Michael Beloff QC with Michael Burrell as his junior. Of their presentation, Hart-Lovelace says: "It could not have been put better than it was. They were excellent."
For the Tories, caught between the Lib Dems and the returning officer, Penningtons instructed Michael Tugendhat QC and Richard Price. The returning officer was represented by Timothy Straker.