Where postal votes had been overlooked in a council election the borough solicitor had not acted incompetently in advising that an application could be made by the returning officer to the county court for the votes to be inspected and recounted under r.47(1)(b) Local Elections (Principal Areas) Rules 1986, and he was accordingly entitled to succeed in defamation proceedings.Appeal from a judgment of Gray J holding that defamatory statements about the professional competence of the appellant ('G') as borough solicitor to Bedford Borough Council were substantially justified. Council elections had taken place in Bedford in May 2000. After two recounts the winner of the Brickhill ward election had been declared to be the Conservative candidate ('E'). Her majority on a return of some 2,500 votes was only nine votes. Shortly after the declaration, it was discovered that an envelope containing the postal ballot papers for that ward had been overlooked. The envelope had contained 86 postal votes. The votes had been counted informally in the absence of the candidates and had the effect of reducing the Conservative majority to six votes. After consultations between G and the returning officer ('F'), F had made an application to the county court under r.47(1)(b) Local Elections (Principal Areas) Rules 1986 SI 1986/2214 for all the votes to be inspected and recounted. That application had subsequently been discontinued. No election petition had been presented. E's election agent ('L') had published a press release and a local newspaper had published an article critical of the council, F and G. In defamation proceedings, the judge had held that readers of the publications would have understood that G had been incompetent to a great extent and that he had fallen short of what was expected of a competent solicitor thereby justifying the publications. G appealed. The appeal turned on issues of election law as to what should happen when a parcel of votes was neither rejected nor counted but simply overlooked.HELD: (1) Informal counts should not take place in any circumstances. (2) Contrary to the judge's view, the wording of r.47 of the 1986 Rules permitting the county court to inspect ballot papers "for the purpose of an election petition" did not require the existence of a petition before an application under the rule could be made. It was desirable that after an admitted error in the counting process there should be a comparatively quick and cheap means of establishing whether it was worthwhile to present a petition. The costs of a r.47 application would be substantially less than those of an election petition. (3) When a ballot box or parcel of postal votes was simply overlooked or where it appeared clear that a substantial number of votes had for whatever reason not been counted there existed an ample evidential basis for a r.47 application (Re Lancashire Darwen Division Case (1885) 2 TLR 220 distinguished). However, if the uncounted votes could not reasonably be expected to affect the result, there would be no real likelihood of an election petition being presented and a r.47 application could not properly be regarded as being made for the purposes of a petition. (4) Contrary to the judge's view the returning officer could be the applicant under r.47 and the application could simply be made on notice to all interested parties so that they could attend and if they wished apply to be joined. (5) Having regard to those conclusions on the issues of election law, the judge's finding of justification could not be upheld. G's handling of the situation that had arisen did not warrant a finding of incompetence. Although G should have advised that it was wrong to carry out an informal count, he was right on the important issues that a r.47 application was possible and could be made by F. G was entitled to judgment for damages to be assessed.Appeal allowed.

[2003] EWCA Civ 297