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High Court reaffirms tests for (i) a non-disclosure order and (ii) setting aside a without notice order due to non-disclosure

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management - Disclosure – Other

03-02-2020

United Kingdom Independence Party Limited v Richard Braine and others [2019] EWHC 3527 (QB)

Facts of the Case

This decision relates to:

1. applications by the Claimant (“UKIP”) for orders (a) continuing until trial an interim non-disclosure order obtained on a without notice basis (the “NDO”) and (b) for the seizure and search of the fourth Defendant’s computer; and

2. a cross-application for the discharge of the NDO on the grounds of material non-disclosure by UKIP.

The background to the applications was the Defendants allegedly taking personal data and information and seeking to use that to blackmail certain senior UKIP members.

The Decision: Continuing the Interim Injunction and Seizure Order

Warby J dismissed UKIP’s applications finding inter alia:

1. the relevant standard in order to trigger the court’s discretion to grant an NDO was the “enhanced merits test” in s.12 of the Human Rights Act 1998 (“HRA”), not the conventional American Cyanamid test (“a serious issue to be tried”);

2. that the court therefore had to be “satisfied that the applicant is likely to establish that publication should not be allowed” given that the relief sought “might affect the exercise of the Convention right to freedom of expression”, with “likely” in this context meaning more likely than not; and

3. on the facts, the court could not be so satisfied.

The Decision: Material Non-Disclosure

Warby J held that there had been material non-disclosure by UKIP when it applied for the NDO. In particular, UKIP had not drawn the court’s attention to:

1. s.12 of the HRA; or

2. the possibility that the Defendants had not taken any confidential information and/or were not responsible for the alleged blackmailing.

However, Warby J did not set aside the NDO. Instead, because he found that the Defendants were not in a position to do what the NDO restrained them from doing, it had no practical effect on them. It was therefore sufficient not to order (as sought) the continuation of the NDO.

Analysis and Practical Advice

• While this decision reaffirms the general test for parties seeking an NDO, there is House of Lords authority that “a lesser degree of likelihood will suffice” where particular circumstances makes this necessary, e.g. 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.”[1]

• The case is also a reminder of the requirements of the duty of full and frank disclosure when parties are applying without notice. This duty is perhaps best summarised as any matter which, if the other party were represented, that party would wish the court to be aware of.

• Importantly, it extends not just to facts known to the applicant, but to additional facts which would have been known had the applicant made proper inquiries.

• The duty is also owed by the applicant’s lawyers, including that the advocate at the hearing draws the court’s attention to the applicable facts, law and procedure. It is, for example, not sufficient that a document is simply put in a bundle. It must be actively drawn to the court’s attention.

• As part of ensuring the proper discharge of this duty, practitioners are advised always to ensure that witness statements and skeletons present all of the relevant material in a distinct and clearly marked section, rather than on a piecemeal basis.


[1]                 Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253

 

 

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