Scottish Court of Session Decisions

Section 33 of the Corrupt Practices Act 1883 requires a return to be made of election expenses within thirty days of the election, containing certain particulars as to the expenses. It is further provided, sub-sec. 6, that “If without such authorised excuse as is in this Act mentioned, a candidate or an election agent fails to comply with the requirements of this section he shall be guilty of an illegal practice.”

Section 34 of the Act provides—“(1) Where the return and declarations respecting election expenses of a candidate at an election for a county or borough have not been transmitted as required by this Act, or being transmitted contain some error or false statement, then—( a) If the candidate applies to the High Court or an election court and shows that the failure to transmit such return and declarations, or any of them, or any part thereof, or any error or false statement therein, has arisen by reason of his illness, or of the absence, death, illness, or misconduct of his election agent or sub-agent, or of any clerk or officer of such agent, or by reason of inadvertence or of any reasonable cause of a like nature, and not by reason of any want of good faith on the part of the applicant, … the Court may, after such notice of the application in the said county or borough, and on production of such evidence of the grounds stated in the application, and of the good faith of the application, and otherwise, as to the Court seems fit, make such order for allowing an authorised excuse for the failure to transmit such return and declaration, or for an error or false statement in such return and declaration, as to the Court seems just.”

Section 23 provides—“Where, on application made, it is shown to the High Court or to an election court, by such evidence as seems to the Court sufficient, ( a) That any act or omission of a candidate at any election, or of his election agent, or of any other agent or person, would by reason or being a payment, engagement, employment, or contract in contravention of this Act, or being the payment of a sum or the incurring of expense in excess of any maximum amount allowed by this Act, or of otherwise being in contravention of any of the provisions of this Act, be but for this section an illegal practice, payment, employment, or hiring; and ( b) that such act or omission arose from inadvertence or from accidental miscalculation or from some other reasonable cause of a like nature, and in any case did not arise from any want of good faith; and ( c) that such notice of the application has been given in the county or burgh for which the election was held as to the Court seems fit; and under the circumstances it seems to the Court to be just that the candidate and the said election and other agent and person, or any of them, should not be subject to any of the consequences under this Act of the said act or omission, the Court may make an order allowing such act or omission to be an exception from the provisions of this Act which would otherwise make the same an illegal practice, payment, employment, or hiring, and thereupon such candidate, agent, or person shall not be subject to any of the consequences under this Act of the said act or omission.”

Dr G. B. Clark, M.P. for the county of Caithness, presented a petition craving the Court “to find that the petitioner did timeously transmit a true return of his election expenses incurred by him as candidate for the county of Caithness at the election which took place therein on 23rd July 1895, to the returning officer for the said county, in terms of the Statute 46 and 47 Vict. cap. 51, sec. 33, or otherwise; and in any event to make an order for allowing an authorised excuse for the petitioner's failure (1) to transmit the return of his election expenses within the time fixed by the statute 46 and 47 Vict. cap. 51, sec. 33; (2) to enclose as part of said return the receipt for £2, 2s. paid by the petitioner to the Lybster Temperance Hall Committee; (3) to enclose as part of the said return the receipt for £5, 15s. paid by the petitioner to James Nicol, Wick; (4) to insert the date of the election in the return which he made; and (5) to state accurately the Christian name of the said James Nicol in the said return, or for his failure to do any of the above wherein your Lordships shall consider that the petitioner has not complied with the statute; and further, to make an order allowing all or any of the above failures or omissions, if found to have been committed, to be an exception or exceptions from the provisions of the said Act, which would otherwise make the same an illegal practice; and to declare that the petitioner shall not be subject to any of the consequences under the said Act of his said acts, failures, or omissions; or to do further or otherwise in the premises as to your Lordships shall seem proper.”

The petition set forth that “in July 1895 the petitioner became a candidate to represent the county of Caithness in Parliament, the seat being then vacant owing to a general election. On the 23rd July 1895 the petitioner was duly elected as member for the said constituency. The petitioner, in terms of section 24 of the Act, intimated to the returning officer that he would be his own election agent.”

The petitioner further stated—“After his return the petitioner was supplied by the Sheriff-Clerk of Caithness with a lithographed form on which to enter and make a return of his election expenses. Section 29 (1) of the said Act provides that every payment of over forty shillings made by an election agent shall be vouched for by a bill and a receipt. The petitioner's total expenses at said election only amounted to £77, 10s. 6 1 2d., and only two accounts were of such a nature as to require vouchers. These were (1) an account of £2, 2s. for hire of a hall at Lybster, and (2) an account of £5, 15s. incurred by the petitioner to James Nicol, Wick, for hiring during his candidature. The petitioner paid these and all other accounts as provided for by the said Act, but James Nicol failed to let the petitioner have a receipt for the payment to him when he received the petitioner's

Page: 155↓

cheque. The petitioner wrote and asked James Nicol for this receipt, and delayed sending in the return of his election expenses in the hope that it would arrive, as it, in terms of the aforesaid section 34 (1) ( a) of the said Act, would form part of the return. The petitioner, who was in London and in attendance at the House of Commons, which was then sitting, waited thus in the hope of receiving this receipt until the evening of 27th August 1895, being the thirty-fifth day after his return. Not having received the said receipt the petitioner filled in the said lithographed form of return of election expenses and posted it, along with the receipt for £2, 2s. for the Lybster Temperance Hall, at about eleven p.m. on the said 27th August 1895, at the House of Commons Post-Office.… The return of election expenses made by the petitioner is said to be not in conformity with the said Act ( a) because the envelope in which it was sent from London bears the London post-mark of the 28th August 1895, while the last day on which, in terms of the Act, the return could be made was the 27th August 1895; ( b) because it was not accompanied by the receipt for the £2, 2s. paid to the Lybster Temperance Committee; and ( c) because it was not accompanied by the receipt for the £5, 15s. paid to James Nicol. With regard to ( a) the petitioner has discovered that letters posted after 10 P.M. at the House of Commons post-office are not removed therefrom and marked with a date stamp till after midnight. The consequence is that although the petitioner put the return of his election expenses into the post within the thirty-five days fixed by the said Act, it bore a post-mark as if it had been posted on the thirty-sixth day. With regard to ( b) the petitioner can swear that he enclosed the receipt for £2, 2s. along with the return, but the Sheriff-Clerk of Caithness, who received the return for the returning officer, declares it was not among the papers which were sent him. The petitioner on being informed of this applied to the Secretary of the Lybster Temperance Hall Committee, who granted a duplicate receipt, showing that the sum was paid on 2nd August 1895. With regard to ( c), when the petitioner on 27th August 1895 found that the receipt from Nicol was not forthcoming, and sent off the return without it, he wrote to Nicol requesting him to hand over the receipt direct to the Sheriff-Clerk, and Nicol did so on 2nd September 1895.… In filling up the lithographed form of return of election expenses the petitioner inadvertantly omitted to fill in the date on which the election took place. He also by inadvertence gave Mr Nicol's Christian name as John instead of James. Neither the omission nor the inaccuracy in the name appear to the petitioner to be in material nonconformity with the said Act; but the petitioner in making this application desires ob majorem cautelam to obtain from the Court an authorised excuse for having made the omission and committed the inaccuracy, if the Court should be of opinion that they render his return not in conformity with the statute.”

Answers were lodged by Alexander Dugald Mackinnon and by Robert Sutherland, farm servant, Halkirk, the latter of whom was an elector in the county of Caithness. Mackinnon was not an elector in the said county. He, however, alleged that he had an interest to oppose the petition in respect that an action had been raised by him in England for recovery of penalties against the petitioner. He submitted that the first alternative of the prayer was incompetent, and that the matters referred to in the petition were at present under the consideration of the English courts, and accordingly craved the Court “not to pronounce any order which would prejudice the respondent in his said action in England against the petitioner.”

The respondent Sutherland stated in his answers—“This respondent applied through his agents to the petitioners agents for a copy of the petition, but this was refused, and he was referred to the intimation on the walls of Court. With reference to the statements of fact contained in the petition, this respondent avers that the petitioner's declaration as to expenses was not in statutory form, as it did not specify the amount of the expenses (which was left blank) or the date of the election; that the return and declaration were not transmitted to the Sheriff-Clerk within the statutory period, which expired on 27th August 1895; that the return was not accompanied by the statutory bills and receipts, and was therefore no true return; that although the petitioner's attention was directed by the Sheriff-Clerk of Caithness-shire to these facts shortly after the said defective return was made, the petitioner took his seat and voted in the House of Commons for a whole session without making any application for relief. This respondent accordingly submits that the petitioner is not now entitled to the relief craved.”

Argued for petitioner—1. The respondent Mackinnon was acting in England merely as a common informer; he was not an elector in Caithness, and accordingly he had no locus standi in an application for rectification of the petitioner's errors. There was undoubtedly wide power given by the Act to recover penalties, but there was no indication that the same wide power extended to obstruction against relief being given to a member. It was true that an order in the terms craved would be an answer to the action for penalties in England. 2. The respondent Sutherland was an elector, but had also no locus standi, because he had failed to add anything to the case, having simply repeated the petitioner's statements without stating the grounds on which he objected to relief being given. The petitioner was entitled to know the grounds of objection, or he would be at a disadvantage in going to proof.

Argued for Mackinnon—This was not a petition concluding only for an authorised excuse, but also for declarator that no

Page: 156↓

offence had been committed, and for relief from penalties already incurred. Accordingly the result of granting it would be—as the petitioner admitted—to get rid of the action in England. He had adjourned to this Court the same issue which was before the English Court, to be tried here under a section giving a different jurisdiction. His application was quite incompetent, as he ought to have admitted his error instead of craving the Court to declare that he had not committed one. The respondent was clearly entitled to appear and see that his action in England was not cut down by the granting of this incompetent application.

Argued for Sutherland—As an elector he was entitled to appear and contest the question whether his representative had complied with the statute. He stated clearly in his answers that the petitioner had not so complied, and was entitled to discuss the question whether he had acted from inadvertence.

In the course of the discussion the petitioner moved for leave to strike out the first and last conclusions of the petition, and this was accordingly done.