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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> United Kingdom Independence Party Ltd v Braine & Ors  EWHC 3527 (QB) (18 December 2019)
Cite as:  EWHC 3527 (QB)
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
| United Kingdom Independence Party Limited
|- and -
|(1) Richard Braine
(2) Tony Sharp
(3) Jeff Armstrong
(4) Mark Dent
(5) Persons Unknown
Jane Phillips (instructed by DWF LLP) for the Fourth Defendant
The First, Second and Third Defendants in person
Hearing date: 6 December 2019
Crown Copyright ©
Mr Justice Warby :
The history in outline
"As far as I can see, Kirstan and the NEC are attempting to interfere in a Party election … It is my duty to see that the Returning Officer can run elections fairly. That is why the steps below are necessary".
"1, Lock her out of the email@example.com account and gain control
2, Enable Ruth to send out the emails from UKIPS Mail Chimp Account
3, Do a Microsoft Office 365 Evidence scan of the chairman's account and other UKIP.org account to gain evidence, for use later."
"Subject: You're ukip emails
On Wednesday we legally got all your ukip emails for years, ones from or to you or which you sent from outside of ukip to any one with a ukip email.
If any one says we do not have them or did not get them legally they are lying, that is why we removed the Party Secretary.
After two days our B.B. team will be reviewing the emails for evidence. Then the useful parts can find their way any where, even your neighbours, we know where you are. Think how much you will lose.
We give you a chance. By Midnight on Friday 18, you must resign from ukip and all your positions you claim in ukip, sending the resignation to both firstname.lastname@example.org and email@example.com , who do not have any connection but can verify for us. Then we won't do any thing.
Once you betrayed the Party Leaders you don't deserve pity but we give you're choice.
"(a) a detailed list of information obtained on 16 October 2019 from the claimant's mail server and to whom such information has been disclosed. And
(b) the date upon which such disclosure took place and the nature of the information disclosed."
(1) There were such serious defects in the manner in which UKIP obtained the Without Notice Order that it ought to be immediately discharged
(2) UKIP's application discloses no basis in law or fact for either "upholding the interim injunction" or for the search and seizure of Mr Dent's (unspecified) electronic devices. There is no evidence of any wrongdoing by Mr Dent, nor indeed even of a threat of such wrongdoing.
(3) In any event, there is no risk, imminent or otherwise, of Mr Dent publishing the Information, which he does not have.
(1) Does the evidence presently before the Court justify the grant ofa) any interim injunction pending trial, restraining the defendants from using, disclosing, publishing or communicating any information?b) a search and seizure order in respect of Mr Dent's computer?
(2) Should the Without Notice Order be set aside for material non-disclosure?
The current position
The threshold test
"… the court is not to make an interim restraint order unless satisfied that the applicant's prospects of success at trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospect of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court that he will probably ('more likely than not') succeed at trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on Article 10 and any countervailing Convention rights."
"… where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal."
Application of the threshold test in this case
"I am unable to determine whether the above activities were 'view' events, using the web interface, or whether the mailbox export was downloaded to the user's computer; these activities are not considered separate actions, as recorded by Office 365 audit logs."
"… it is common knowledge within the IT industry that the logs provide a definitive guide to what actions have been undertaken to a system. … I have my own Office 365 Email Platform and out of interest downloaded files from my system on 12 November. I exhibit a screen shot [MD1-08] from my own MS 365 'activity log' that clearly records "Download files to computer"."
That evidence was filed on 22 November 2019, two weeks before this hearing, and remains unchallenged.
Discharge for material non-disclosure?
"Particular care should be taken in every application for an interim non-disclosure order, and especially where an application is made without-notice, by applicants to comply with the high duty to make full, fair and accurate disclosure of all material information to the court and to draw the court's attention to significant factual, legal and procedural aspects of the case."
ii) The duty requires the applicant to make a full and fair disclosure of those facts which it is material for the court to know … Put another way, disclosure should be made of "any matter, which, if the other party were represented, that party would wish the court to be aware of" ...
i) The duty applies to facts known to the applicant and additional facts which he would have known if he had made proper inquiries before the application."
"22. … the authorities are clear: there is a "high duty to make full, fair and accurate disclosure … and to draw the court's attention to significant ... legal and procedural aspects of the case" … The duty is owed by the lawyers also. "It is the particular duty of the advocate to see that … at the hearing the court's attention is drawn by him to … the applicable law and to the formalities and procedure to be observed" …
23 … Unsurprisingly, it has been held that the duty of full and frank disclosure requires a party, that applies without notice for an interim injunction to restrain freedom of expression, to draw the Court's attention not only to s 12(2) HRA, but also to the requirements of s 12(3), identifying the statutory threshold for the grant of any such relief …."
"The applicant's advocate, so far as it is consistent with the urgency of the application, has a particular duty to see that the correct legal procedures and forms are used; that a written skeleton argument and a properly drafted order are prepared personally by her or him and lodged with the court before the oral hearing; and that, at the hearing, the court's attention is drawn to unusual features of the evidence adduced, to the applicable law and to the formalities and procedure to be observed"
"… it is well recognised that the applicant's skeleton argument is a convenient vehicle for the discharge of this duty [of full and frank disclosure]. It is common practice for the skeleton argument to contain a distinct section headed (for instance) "What the respondent might say". Sometimes the evidence also deals separately with the duty of full and frank disclosure. This helps concentrate the minds of the applicant, the applicant's legal team, and the Judge on the facts and arguments that would or might be put forward by the absent respondent."
(1) Non-disclosure of material facts on an application made without notice may lead to the setting aside of the order obtained, without examination of the merits. It is important to uphold the requirement of full and frank disclosure.
(2) If material non-disclosure is established the court will be "astute to ensure" that a claimant who has obtained an injunction without notice and without full disclosure "is deprived of any advantage he may have gained".
(3) The rule in favour of discharge also operates as a deterrent to ensure that those who make applications without notice realise the existence and potential consequences of non-disclosure.
(4) The discretion to continue the injunction, or to grant a fresh one in its place, is necessary if the rule is not "to become an instrument of injustice"; it is to be exercised "sparingly", but there is no set limit on the circumstances in which it can be exercised.
(5) But the court has a discretion to set aside or to continue the order. Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues that were to be decided. The answer to the question whether the non-disclosure was innocent is an important, though not decisive, consideration.
Application of principles
(1) It is now known, from a copy document disclosed by UKIP, that the blackmailing email came to Ms Herriot's attention by means of an email from UKIP member Neil Hamilton, and (importantly) that he wrote to Ms Heriot and others, that he considered that the email "may be a spoof". Ms Heriot's first witness statement did not disclose this. Instead she put in evidence a different version of the text of the blackmail email, embedded in an email sent by her to "David" (presumably Mr Challice) in which she drew attention to Mr Dent's alleged lack of sincerity. No reference was made in her statement to the possibility that the document was a spoof.
(2) The email had been sent to Mr Hamilton's private email address, and not his UKIP address. The failure to reveal Mr Hamilton's email to Ms Heriot meant that was not disclosed to the Court either.
(3) UKIP's case at the Without Notice hearing was that the blackmail email had been sent "to several NEC members" (Skeleton Argument para 1.18). The claimant did not disclose to the Court at the Without Notice hearing and still has not disclosed, the full extent of the circulation of the blackmail email. The picture that now emerges is that it was sent to four NEC members, not more. The impression conveyed to the Court at the Without Notice hearing was materially different.
(4) Although the Challice Report was in the evidence before the Court at the Without Notice hearing, no attention was drawn to it, as should have been done.
(5) There was a failure to draw attention to the significant fact that the blackmail deadline had passed without the threat being carried out.