United Kingdom Independence Party Ltd v Braine & Ors

Interim non-disclosure relief engaging freedom of expression requires the enhanced merits threshold in section 12(3) of the Human Rights Act 1998. The applicant will ordinarily need to show that success at trial is more likely than not, although a lesser degree of likelihood may suffice in exceptional circumstances. The applicant must also establish a real and credible threat of unlawful disclosure and a sufficient basis for attributing that threat to the defendant. Mere uncertainty about whether confidential information was acquired is insufficient. Search and seizure orders concerning electronic devices are intrusive and require clear justification and adequate safeguards. Applicants seeking relief without notice must make full, fair and accurate disclosure of material facts and law, including matters revealed by proper inquiries.

UKIP sought to continue an interim non-disclosure order granted without notice against its former officers, a former member with IT skills and persons unknown. It also sought seizure and forensic examination of the fourth defendant’s computer. The fourth defendant applied to discharge the original order for material non-disclosure.

The claim arose from alleged unauthorised access to UKIP email systems and a subsequent threatening email demanding the resignation of senior party figures. The evidence did not establish whether information had been downloaded or whether any defendant was responsible for the email. The issues were whether interim relief and a search order were justified, and whether the original without-notice order should be discharged.

Both applications by UKIP were refused. The court also ordered UKIP to bear its own costs of the without-notice application and the defendants’ consequential costs; the starting point was that UKIP should pay the defendants’ costs of the application for continued relief.

1. Statutory threshold. The relief sought might affect the defendants’ Article 10 rights, including because seizure and inspection of a computer would itself interfere with Convention rights. Section 12(3) of the Human Rights Act 1998 therefore applied. The court had to be satisfied that UKIP was likely to establish at trial that publication should not be allowed. The appropriate general approach, following Cream Holdings Ltd v Banerjee [2005] 1 AC 253, was that success should probably be more likely than not. No circumstances justified applying a lower threshold.
2. Threat and attribution. UKIP had to show a real and credible threat of unlawful disclosure and a sufficient basis for concluding that the defendants were responsible. It had not established that Mr Dent or any other defendant acquired the allegedly confidential information. The forensic evidence could not identify a download and provided no positive indication that one had occurred. The pleaded case therefore lacked a sufficient foundation for a credible threat of disclosure.
3. Search and seizure. An order for seizure and inspection of electronic devices was intrusive. It required clear justification and adequate safeguards. The proposed order was unspecified, and the prospect that examination would reveal useful evidence was speculative.
4. Without-notice duties. UKIP had failed to draw attention to the statutory threshold and had failed to make full and frank disclosure of several material matters, including evidence suggesting that the threatening email might be a spoof, its limited circulation, the absence of further threats, and evidence bearing on attribution. The duty extended beyond avoiding deliberate misleading or placing documents in a bundle.
5. The original order was not discharged solely as a sanction because the application for continued relief failed on its merits and the order had apparently caused no practical restraint. The proportionate course was instead to refuse continuation and make the costs orders stated above.

First-instance decision. The judgment does not state any prior appellate decision in the same litigation.