United Kingdom Independence Party Ltd v Richard Braine

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Warby
Judgment Date18 Dec 2019
Neutral Citation[2019] EWHC 3527 (QB)
Docket NumberCase No: QB-2019-004270

[2019] EWHC 3527 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA AND COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Warby

Case No: QB-2019-004270

Between:
United Kingdom Independence Party Limited
Claimant
and
(1) Richard Braine
(2) Tony Sharp
(3) Jeff Armstrong
(4) Mark Dent
(5) Persons Unknown
Defendants

Christopher Loxton ( public access barrister) for the Claimant

Jane Phillips (instructed by DWF LLP) for the Fourth Defendant

The First, Second and Third Defendants in person

Hearing date: 6 December 2019

Judgment Approved by the court for handing down

(subject to editorial corrections)

If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.

Mr Justice Warby
1

On Friday 6 December 2019, I heard two applications by the claimants: (1) an application to continue until trial an interim non-disclosure order, or INDO, against these five defendants, first granted after a hearing without notice on 23 October 2019; and (2) an application for an order for seizure and search of the fourth defendant's computer. At the end of the hearing I announced my decision to refuse both applications, for reasons to be given later. This judgment gives those reasons. It also deals with the fourth defendant's application, supported by the other defendants, for the discharge of the original INDO, on the grounds of material non-disclosure.

The history in outline

2

This is a claim by the limited company responsible for UKIP, the political party, against a group of individuals including the Party's former Leader, Deputy Leader, General Secretary and Returning Officer (“Mr Braine”, “Mr Sharp” and “Mr Armstrong”) and a former member who has IT skills (“Mr Dent”). The allegations pleaded in the Particulars of Claim are of breach of directors' duties and fiduciary duties, breach of confidence, and conspiracy to injure by unlawful means. In the circumstances, it may not surprise anyone to learn that the general background is one of internal political strife. Much of the Particulars of Claim, and a good deal of the evidence before me, is devoted to some fairly elaborate explanations of the disputes, and UKIP's account of the rights and wrongs of them. I shall have to make some reference to some of this, by way of background, but it is some very particular events on 15 and 16 October 2019 which prompted the claim, and it is those which must be the main focus of my attention.

3

On 17 September 2019, UKIP opened applications for election to its National Executive Committee (“NEC”). The Leader, Deputy Leader (where there is one) and the General Secretary of the Party are members of the NEC. As General Secretary and Returning Officer for the election, Mr Armstrong was also an ex officio member. The Party Chairman, Kirstan Herriot, was also an NEC member, as was the Party Secretary, Adam Richardson, a barrister.

4

By the time of an NEC meeting fixed for 12 October 2019, disputes or differences had arisen over Mr Armstrong's conduct as Returning Officer, and in particular the way in which he had or had not vetted applications from candidates for election, and tested them against the eligibility criteria. There was evidently heated debate at that meeting about the correct interpretation of the party constitution, with Mr Richardson taking one position, and Messrs Braine, Sharp and Armstrong taking a different one. The background to this dispute appears to be a factional contest, in which Ms Herriot's side feared that members of the “Batten Brigade”, that is to say supporters of Gerard Batten, former UKIP Leader, were being put up for the NEC, inappropriately in their view.

5

After the meeting of 12 October, by email of Tuesday 15 October 2019, at 1pm, Ms Herriot moved the NEC that a vote be taken by email, to remove Mr Armstrong from his position. NEC members voted in favour of the motion. Mr Armstrong did not accept the validity of this move, and sought to persuade an employee at UKIP's head office by the name of Ruth Purdie to send out an email to the UKIP membership as a whole, allowing all prospective NEC candidates to stand, on the footing that he remained Returning Officer.

6

Later that afternoon, Mr Braine sent an email to Ms Purdie and her manager, David Challice, announcing that he had suspended Ms Herriot from her position, and instructing the staff not to take her calls. He also purported, as Party Leader, to suspend Ms Herriot and all other NEC members, as NEC members and as directors of the claimant company. The suspensions were imposed pending a police investigation into a complaint made by Mr Armstrong that there had been unauthorised access to his emails.

7

By a further email, timed at 23:37 on 15 October 2019, Mr Braine confirmed to Mr Challice and Ms Purdie that he had given Mr Dent authority to visit the Party HQ the following day, with instructions to carry out three tasks, and asked them to supervise Mr Dent in carrying them out. Mr Braine gave an explanation:

“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”.

8

The steps were these:

“1, Lock her out of the chairman@ukip.org 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.”

9

On 16 October 2019, Mr Challice emailed Mr Dent indicating that he did not wish him to come, but Mr Dent arrived at the HQ, and was eventually admitted. He arrived early in the morning and spent several hours on the premises, leaving at around 11am. In the meantime, it appears that members of the NEC, unaware of their suspension or considering it invalid, passed a resolution to remove all authorisation to UKIP systems from Mr Braine and Mr Armstrong. According to UKIP's own evidence, notice of that resolution did not reach Messrs Braine and Dent until about 11am on 16 October 2019. Later, Ms Herriot, or one of her associates, reported Messrs Braine, Sharp, Armstrong and Dent to the police for fraud, computer misuse, and offences under the Data Protection Act 2018.

10

Overnight on Wednesday 16 October 2019 and Thursday 17 October 2019, someone using the pseudonym “B.B” sent an email, from the addressno-reply@munge.cockington.com, to a number of members of UKIP's NEC, in the following terms (The grammatical errors are in the original):-

“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 membership@ukip.org and action@integritypurple.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.

B.B”.

11

It presently appears that there were four recipients of this email. On Friday 18 October 2019, UKIP prepared an application notice seeking “a prohibitive injunction to prevent breach of confidential information and trespass at [its HQ]” by any of the four individuals who are now defendants to this action, and “Persons Unknown”. This was done before the issue of any proceedings, and without notice to any of the respondents. The application (“the Without Notice Application”) was supported by the first witness statement of Ms Herriot, signed and dated 18 October 2019. The suggestion was that the pseudonym “B.B” stood for Batten Brigade.

12

The the application was heard by Lambert J, DBE, sitting in the Interim Applications Court on 23 October 2019. Adam Richardson, the (former) UKIP Secretary, acted as Counsel for UKIP. He submitted an undated skeleton argument, running to 11 pages. The Judge was persuaded by him that it was legitimate to proceed without notice and that an injunction should be granted against all five respondents, until a return date hearing, which she directed should be listed in the Media and Communications List.

13

The Judge's Order (“the Without Notice Order”), sealed the following day, was based upon the Model Order attached to the Master of the Rolls' Practice Guidance of 2011, [2012] 1 WLR 1003. The Without Notice Order prohibited the “use, publication, communication or disclosure” by Messrs Braine, Sharp, Armstrong and Dent, and “Persons Unknown”, of “the Information”, a term defined in a Schedule as “any information originating from or purported information concerning a data breach of” a list of 143 email addresses or accounts, each of them ending @ukip.org. A written judgment given the same day, [2019] EWHC 2832 (QB) (“the Without Notice Judgment”), explained the Judge's reasoning. It identified the causes of action relied on by UKIP at that stage as misuse of private information, breach of confidence, and breach of directors' duties.

14

The Without Notice Order contained a provision requiring each of the respondents to disclose the following information to UKIP within 48 hours of service of the order, and thereafter to confirm it in a witness statement:-

“(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...

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1 cases
  • United Kingdom Independence Party Ltd v Richard Braine
    • United Kingdom
    • Queen's Bench Division
    • 7 July 2020
    ...an inter partes hearing on 6 December 2019. 12 Warby J's reasons were given in a detailed judgment dated 18 December 2019: see [2019] EWHC 3527 (QB). That judgment (which I will refer to as the “INDO Judgment”) is heavily relied upon by the Defendants in support of their arguments in relat......