United Kingdom Independence Party Ltd v Richard Braine
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 07 July 2020 |
| Neutral Citation | [2020] EWHC 1794 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004270 |
| Date | 07 July 2020 |
[2020] EWHC 1794 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Saini
Case No: QB-2019-004270
Jake Rowley (instructed via Bar Direct Access Scheme) for the Claimant
Richard Braine and Tony Sharp (Litigants in Person) for the Defendants
Hearing dates: 30 June – 1 July 2020
Approved Judgment
This judgment is in 6 parts as follows:
I. Overview — paras. [1–16]
I. Overview
These proceedings arise out of a factional dispute concerning the leadership and control of the UK Independence Party (“UKIP”, or “the Party”), and events surrounding elections to its National Executive Committee (“the NEC”) in October 2019.
UKIP is an unincorporated association which, as is well-known, operates as a political party. The Claimant is the service and operating company of the Party. The parties before me have not always distinguished between the Party and the Claimant in their evidence and arguments. They are however not the same entity and I will maintain a distinction below, particularly when it comes to the governance and constitutional arrangements which arise for consideration in this claim.
The Claimant brings claims for breach of confidence, breach of director's duties, conspiracy to injure by unlawful means and breach of the Copyright and Rights in Databases Regulations 1997. The claims are made by the Claimant against two former officers of UKIP: (i) Mr. Richard Braine (“Mr. Braine”), UKIP's former leader and a former director of the Claimant; and (ii) Mr. Tony Sharp (“Mr. Sharp”), UKIP's former Deputy Leader (who is sued in respect of each cause of action, apart from breach of director's duties).
In broad terms, the Claimant alleges that Mr Braine and Mr Sharp were behind a serious data breach and misuse of confidential information drawn from the Party's membership database on or around 16 October 2019. More specifically, the Claimant alleges that Mr. Braine and others were involved through their agents in unlawfully accessing the UKIP email database to send emails to UKIP members concerning the upcoming elections to its NEC. It is also alleged that the Defendants accessed and gathered data from private email inboxes of UKIP members.
Perhaps the most serious of the allegations is that Mr. Braine and Mr. Sharp were the persons behind what I will call the “BB Email” below. This was an email sent to four UKIP members (three of whom were then on the NEC) on 16 October 2019 from a person using the pseudonym “BB” from the email address reply@munge.cockington.com. That email contained various threats to disclose information to third parties unless the recipients resigned from positions within the Party. This was an attempt to blackmail the recipients.
I should record at the outset that both Mr. Braine and Mr. Sharp strenuously deny the allegations and have confirmed their denials in sworn evidence. In short, they say the first they heard of the BB Email was when injunction orders were served on them in this case, and such limited emails as they directed to be sent to members were always lawful.
Proceedings were originally commenced against two further individuals, Mr. Jeff Armstrong, former General Secretary and Returning Officer of the Party, and Mr. Mark Dent, a former Party member. These people, as more fully described below, were also once claimed by the Claimant to be involved in the misconduct I have summarised above. However, the Claimant discontinued the claims against Mr Armstrong and Mr. Dent earlier this year.
There are a number of applications before me, the most substantial of which is an application by the Defendants dated 12 January 2020 to strike out the entirety of the claim, alternatively, for summary judgment. That application also seeks an order striking out the claim for certain procedural defaults. There is a dispute as to whether Mr. Braine has in fact made such an application because the application itself was signed only by Mr. Sharp although he purported to make it on behalf of himself and Mr. Braine. I will proceed on the basis that the application was made by both Defendants and return to this dispute at the end of this judgment.
Closely related to the Defendants' application dated 12 January 2020 is the Claimant's application dated 19 February 2020 to substantially amend its Particulars of Claim; and the parties sensibly agreed these two applications logically fall to be considered together. The Claimant wishes to replace its existing Particulars of Claim with a new pleading which on its face says: “the Claimant deletes the entirety if its Particulars of Claim and replaces them with the below”.
The hearing was conducted remotely by SKYPE. Mr. Braine and Mr. Sharp represented themselves and both addressed me orally and in writing. Counsel represented the Claimant and I should record the conspicuously fair way in which he conducted the proceedings against litigants in person in a case where there was some procedural complexity. He also provided me with substantial assistance in response to my questions and my requests for certain additional material.
These proceedings began with a claim for an interim non-disclosure order (“the INDO”) which was granted, on an application without notice, by Lambert J on 23 October 2019. The INDO was in due course discharged by Warby J following an inter partes hearing on 6 December 2019.
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 relation to their striking out/summary judgment application and in opposition to the application by the Claimant to amend the Particulars of Claim.
In summary, in the INDO Judgment, Warby J held that the evidential basis for the claim that the Defendants obtained and threatened to disclose confidential information from UKIP's email database was “slender in the extreme” and that it was “arguable that the Particulars of Claim fails to disclose a reasonable basis for claim and/or that the claim has no reasonable prospect of success at trial”: para. [52]. Warby J also held there had been significant failures to make full and frank disclosure before Lambert J: para. [68]. Emboldened by Warby J's observations, the Defendants made their application for the claims to be dismissed. They essentially argue that those observations are sufficient to dispose of the claims. At times it seemed to me that they pointed to the INDO Judgment as “game, set and match”.
Matters are, however, not that straightforward. There are four points which I consider require me to approach this heavy reliance on the INDO Judgment with some caution: (i) the applications before me are for me to decide on the basis of the evidence and arguments now made and I have to form my own independent judgment; (ii) Warby J did not have a strike out/summary judgment application before him but was considering the different question as to whether to continue the INDO, applying a different legal test; (iii) while there remain overlaps with the original claim, the pleading I am concerned with is the draft Amended Particulars of Claim (not that before Warby J) and he did not address all the claims made by the Claimant; and (iv) the arguments before me have been more extensive than those developed before Warby J. I will of course carefully consider Warby J's but ultimately I have to form my own views.
Finally, by way of introduction, I should record that there were a number of additional applications before me on 30 June 2020 which are not addressed in this judgment. These applications were of a more procedural nature and concerned: (a) the Claimant's application dated 19 January 2020 to regularise service of the Particulars of Claim/relief from sanctions; (b) an application by the Defendants dated 12 January 2020 for relief from sanctions, if necessary, in relation to non-filing of Acknowledgement of Service; and (c) the Claimant's application dated 25 June 2020 to serve supplemental evidence in relation the Defendants' strike out/summary judgment application.
Having heard concise and helpful submissions from the parties, and for reasons given orally at the hearing, I dealt with both of these applications on that day by making orders regularising service of the Particulars of Claim and service of the Acknowledgment of Service. I did not permit the Claimant to rely upon the additional witness statement because I considered it had been served too late (25 June for a hearing on 30 June).
II. Striking Out for Procedural Breaches
Before I turn to the main applications, I deal briefly with the Defendants' application to strike out the claim on the basis of a number of procedural defaults. I reject that application for the reasons set out below. The Defendants complained of a number of alleged breaches, which I address in turn below.
First, it is said the Claim Form was served out of time. The Defendants say that it had to be served by 29 November 2019. That is wrong. That was the date by which the Claimant was required to issue a Claim Form, which was done.
Second, as regards certain complaints concerning email service of the Particulars of Claim, I have made orders regularising the position as indicated above. However, even if there had been a breach or failure as...
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