A senior judge yesterday delivered a huge blow to the town hall by scrapping a by-election following a bitter legal battle.
On a dramatic day at Manchester Civil Justice Centre Mr Justice Martin Spencer comprehensively found in favour of Bryn independent Coun Steve Jones and his team.
His judgment was highly critical of Wigan Council and returning officer Donna Hall, ruling an “unlawful” electoral process had been taking place in the ward.
This was because opposition member Coun Jones had not resigned in January when the local authority claimed he had.
Instead he had only expressed in an email an intention to resign, which he subsequently had a change of heart on.
Passing judgment, Mr Justice Spencer said: “The starting point must be whether there has or has not been a valid resignation.
“The power and duty of the returning officer to hold an election to fill a vacancy depends on there being a casual vacancy. That in turn depends on there being a valid resignation.
“The defendants’ interpretation of Mr Jones’ email would mean that despite that wording; ‘I will be resigning from my role as an elected councillor on
February 20’ Mr Jones was seen to be resigning as of that date. No reasonable interpretation of that email could lead anyone to suppose that was his intention at all.
“The question then arises, given it is the courts’ strong view that there was no valid resignation and therefore no vacancy, what should the court do?
“The basis for calling this election does not and never did exist.
“I have come to the view that this is an exceptional and unusual case. The finding I have made sweeps from under her feet the returning officer’s very jurisdiction to act at all in calling this election and proceeding with it.
“It would have been quite wrong to allow the election to proceed. It would be, as I find, unlawful.
“It is with enormous reluctance that the court interferes in the democratic process but a resignation is a serious and significant step and a person should only be taken to have resigned in the clearest case where there is no doubt that was his intention and the effect of what he is doing.
“It cannot properly be said the email comes into that category or anywhere near it.”
Paul Nicholls QC, representing Mr Jones, said that as his client had never resigned there was no possible basis for the vote which had been scheduled for today.
Peter Oldham QC, representing both Wigan Council and Ms Hall, said the application for the case to be heard had come too late, that it would be damaging to democracy to cancel the vote when postal forms had already been returned and that the returning officer had done nothing wrong in her conduct.
The judge rejected many of his arguments but said he had a powerful point that the courts should be very slow to intervene in politics.
Yesterday’s judgment in many ways echoes Mr Justice Tim Kerr’s findings at an interim judicial review hearing last week, at which an injunction against Wigan Council over the by-election was refused.
With the returning officer added as an interested party, however, Mr Justice Spencer said he was able to come to a summary judgment on the matter and could grant the injunction against the vote.