Mr Malone lost the seat after two recounts but remains unhappy about the way some ballot papers were rejected for reasons that ultimately favoured Mr Oaten. In a statement yesterday he said the first count did not conclude until 6am on 2 May. According to the Liberal Democrats, that indicated a majority of 290 for Mr Oaten.
Despite the extent of the majority, Mr Malone succeeded in asking the acting returning officer, David Cowan, for a recount, which put him ahead by 22 votes. At 7.45am, a second recount was ordered to begin at 2pm, which resulted in victory for Mr Oaten by two votes. But Mr Malone remained unhappy and is asking for another recount. The court could also order a fresh election.
"The way in which the count was conducted has been widely condemned as unsatisfactory," he said. "...Only during the second count did a significant number of ballot papers emerge which were rejected for "want of the official mark", in breach of the Parliamentary Election Rules.
"It is the responsibility of the Returning Officer's staff, charged with issuing ballot papers to voters at polling stations, to ensure the proper marking of ballot papers. It is my understanding that a majority of these void ballots were cast in my favour and, had they been counted, I would have won the election."
The "official mark" is a letter or perforation stamped on ballot papers as they are given to voters. It ensures fake ballot papers cannot be stuffed into the boxes during polling, but it would appear that either polling officials, or the machine they used, failed to ensure the papers were properly marked.
Mr Malone further alleges that 125 votes were "rejected as being void for uncertainty". These papers could have been left blank or may have carried more than one cross, being simply "spoiled". Mr Malone said two of these were wrongly rejected and were the subject of a protest by his agent during the count. And he said a further eight votes were rejected on the grounds that "they bore a mark by which the voter could be identified." This usually means that the voter signed their ballot paper. However, Mr Malone added: "I have received legal advice that they, too, could have been wrongly rejected."
Mr Oaten, who has taken his seat and sworn the oath of allegiance, responded yesterday by appointing solicitors and engaging Queen's Counsel.