UKIP Ltd v Braine & Ors

The claimant, United Kingdom Independence Party Limited, was the limited company responsible for UKIP, the political party.

The first defendant, Mr Richard Braine, was the former Leader of UKIP. The second defendant, Mr Tony Sharp, was the former Deputy Leader. The third defendant, Mr Jeff Armstrong, was the party’s former General Secretary and Returning Officer. The fourth defendant, Mr Mark Dent, was a former UKIP member with IT skills. The fifth defendant was comprised of “persons unknown”.

On 17 September 2019, UKIP opened applications for elections to its National Executive Committee (NEC). A dispute subsequently arose over the third defendant’s conduct as Returning Officer. At the instigation of the Party Chair, Ms Kirstan Herriot, a majority of NEC members voted to remove the third defendant from his position. On 15 October the first defendant suspended Ms Herriot, and authorised the fourth defendant to visit UKIP HQ the following day, to block Ms Herriot’s access to the UKIP Chair email account, and scan that and other accounts for relevant evidence.

The fourth defendant visited UKIP HQ on the morning of 16 October. That night, an unknown individual emailed four NEC members, claiming to possess copies of their emails, and threatening to release them unless they resigned from the party. A week later, the claimant secured, without notice to the respondents, an interim order prohibiting the “use, publication, communication or disclosure” by the five defendants of “any information originating from or purported information concerning a data breach of” specified UKIP email addresses or accounts.

The claimant subsequently issued proceedings against the defendants for breach of directors’/fiduciary duties, breach of confidence, and conspiracy to injure by unlawful means. Ahead of the eventual return date on the injunction, the claimant filed an application notice asking the Court to uphold the interim non-disclosure order (INDO) until trial, and to order that the fourth defendant’s computer be seized and searched. The four individual defendants filed witness statements denying obtaining any information from UKIP’s servers and responsibility for the blackmail email, and provided reasons to believe that the email had come from another source.

Warby J heard the claimant’s two applications on 6 December 2019. The defendants resisted both, and applied for an order that the original INDO be discharged on the grounds of material non-disclosure, contending that the Judge had been positively misled as to the applicable law and facts.

1.  Whether the evidence before the Court justified the grant of:

(a) any interim injunction pending trial, restraining the defendants from  using, disclosing, publishing or communicating any information; and/or

(b) a search and seizure order in respect of the fourth defendant’s computer.

2.  Whether the INDO should be set aside for material non-disclosure.

1.  Both of the claimant’s applications were refused. To trigger the Court’s discretion to grant an injunction, the claimant’s case had to satisfy the test prescribed by s.12, Human Rights Act 1998, as examined by the House of Lords in Cream Holdings Ltd v Banerjee [2005] 1 AC 253. The claimant had not shown to the appropriate standard that the defendants, unless restrained, might disclose the allegedly confidential information in question. Indeed, the claimant’s breach of confidence claim fell short of pleading a sufficient case, and fell short evidentially: it did not show a sufficient likelihood of establishing at trial that the individual defendants were responsible for the blackmail email, and that the email represented a credible threat to disclose the information to the detriment of UKIP’s rights. The other causes of action relied on by the claimant had no better prospects.

2.  The Court found that the claimant was guilty of a serious breach of duty in failing, at the October hearing of its application for the INDO, to draw the Court’s attention to s.12, Human Rights Act 1998. The Court also found that there had been a significant failure to make full and frank disclosure of some important matters of fact. However, because the claimant had failed in its application to have the INDO continued, there was no need to set the order aside. The most just and proportionate course was to order the claimant to pay its and the defendants’ costs incurred by the INDO application.

The judgment is a good example of, and a salutary reminder of, the need for applicants to consider properly the test in Cream Holdings in cases where s.12, HRA 1998 operates.  That test – that the applicant be “more likely than not” to succeed at trial – is more exacting than the more usual “serious question to be tried” test from American Cyanamid.

Practitioners and applicants should also take careful note of the seriousness of not drawing attention to s.12 where it is relevant to an application for interim injunctive relief, and of the importance of the duty of full and frank disclosure more generally.