January 20, 2020

In a claim brought by the United Kingdom Independence Party (UKIP) against a group of individuals, including the Party’s former Leader, Deputy Leader, General Secretary and Returning Officer, for breach of directors’ duties and fiduciary duties, breach of confidence, and conspiracy to injure by unlawful means, Mr Justice Warby heard two applications by UKIP: (i) to continue until trial an interim non-disclosure order against the defendants, first granted on 23 October 2019; and (ii) for an order for seizure and search of the fourth defendant’s computer.

The general background was one of internal political strife. In particular, a dispute arose over the conduct of UKIP’s Returning Officer, Jeff Armstrong (the third defendant), during elections to UKIP’s National Executive Committee. On a motion put forward by the Chairman, Kirstan Herriot, the NEC voted to remove Mr Armstrong from his position, but he did not accept the validity of the vote. UKIP’s former leader, Richard Braine (the first defendant) then suspended Ms Herriot. On 16 October 2019, Mr Braine authorised the fourth defendant, Mark Dent, a former UKIP member who had IT skills, to visit the party HQ to carry out various IT tasks, including locking out Ms Herriot from her UKIP account and gaining control.

Later that same day, an email was sent anonymously to a number of UKIP’s NEC members stating that the sender was in possession of all the recipients’ UKIP emails going back several years and threatening to publish them if the recipients did not resign from the party.

On 18 October 2019, UKIP applied for an interim injunction to prevent disclosure of confidential information by the defendants and “Persons Unknown”. The interim injunction was granted on 23 October. The defendants all denied any knowledge of the email or that they had obtained any information from UKIP’s mail server.

Warby J noted that s 12(3) of the Human Rights Act 1998 prohibits the court from granting relief so as to prevent publication before trial “unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”.

The central questions were whether UKIP could show a sufficient likelihood of establishing at a trial: (i) that the individual defendants were responsible for the blackmailing email; and (ii) that the email represented a credible threat by them, or someone else, to disclose the confidential information to the detriment of UKIP’s rights.

Warby J found that the evidence was seriously lacking when it came to proving that Mr Dent had acquired any of the allegedly confidential information when he visited party HQ. It followed, therefore, that he could not be accused of passing that information to the other named defendants, or to Persons Unknown. Without acquisition of the allegedly confidential information there could be no credible threat by anyone to make wrongful disclosure of that information.

Further, UKIP’s IT expert report did not find that any information was actually downloaded from the mail server and stated that it may just have been viewed. In Warby J’s view, this was not enough to show that success at trial was likely.

In addition, the evidence showed that UKIP had received two spoof or hoax emails in the month prior to these events and, further, UKIP had nothing concrete on which to base a contention that the defendants were responsible for sending the blackmailing email.

Warby J acknowledged that, on the face of it, it seemed highly unlikely that Mr Dent’s visit to the party HQ and his access to the server, coupled with the blackmailing email, were entirely coincidental. It was not hard to see why, at first blush, Ms Herriot and others suspected that Mr Dent had gained unauthorised access to computer files and downloaded the information that lay behind the blackmail email.

However, Warby J said, UKIP plainly should have given thought to the possibilities that Mr Dent had not gained access to the email data referred to in the blackmail email, and that the email was a spoof, or hoax, a communication sent by someone who did not in fact have access to the allegedly confidential information. In fact, in Warby J’s view, some of the chief features of the case strongly suggested that this was the true position.

The conclusion on all the evidence was that the prospects of UKIP establishing at a trial that any of the defendants had obtained, and then threatened to disclose, confidential information derived from UKIP’s email database were slender in the extreme, or worse. It was arguable, in Warby J’s view, that the Particulars of Claim failed to disclose a reasonable basis for a claim and/or that the claim had no real prospect of success at a trial.

The application for an order for inspection was also seriously deficient, Warby J said. In his view, the prospect that something useful might emerge from such an intrusive order was speculative at best. The applications were denied. (United Kingdom Independence Party Ltd v Richard Braine [2019] EWHC 3527 (QB) (18 December 2019) — to read the judgment in full, click here).