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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Mold Investments Ltd v Holloway & Ors [2025] EWHC 962 (Ch) (18 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2025/962.html Cite as: [2025] EWHC 962 (Ch)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)

		The Rolls Building 7 Rolls Buildings Fetter Lane, London EC4A 1NL
		18th March 2025

MR JUSTICE RICHARD SMITH :

BACKGROUND

1. On 4 and 5 March 2025, I oversaw a directions hearing in relation to the application by Mr Matthew Holloway (D1) to set aside or vary certain asset freezing relief granted in favour of the claimant against D1 and Mr Andrew Jacques (D2).
2. The substantive claim relates to alleged breach of fiduciary duty in connection with the former roles of D1 and D2 in the claimant company as a result of the alleged illegal dumping of waste in a quarry. The relevant remediation costs claimed by way of compensation is said to run into tens of millions of pounds.
3. This matter has quite some procedural background to it which I cannot sensibly cover fully here in a directions ruling but I summarise the most relevant aspects. On 9 August 2023, Mellor J granted an asset freezing injunction on a without notice basis against D1's and D2's assets up to £55 million. The evidence of alleged dissipation comprised WhatsApp screenshots produced to the claimant by Mr Jeremy Hazlehurst who says that he was a former acquaintance of D1 and D2, he came across information through Mr Ian Collier that the claimant was intending to bring a large claim and he imparted this to D1 and D2 by WhatsApp, their reply messages indicating an intention to dissipate their assets. When he discussed what he had done with Mr Collier, and appreciating the gravity of the claim being discussed, he says he shared those messages with the claimant's solicitors. That, in turn, led to the claimant's application for interim relief granted by Mellor J.
4. I should say that D2 and D1 have always denied that they exchanged any of these messages with Mr Hazlehurst whom they say they have no recollection of meeting. D1 says that, upon receipt of the injunction, and upon advice, he handed his own telephone to digital forensic experts called MD5. He also sought and obtained on 14 August 2023 an imaging order in respect of Mr Hazlehurst's phone, Mellor J apparently observing when the matter came before him again that perhaps the evidence on the without notice injunction application had been too good to be true. Mr Hazlehurst handed over his phone to a company called Cyfor on 14 September 2023 under the supervision of a supervising solicitor, albeit D1 did not apply to search and review the data until 19 January 2024.
5. In the meantime, the asset freezing injunction was subsequently varied by Leech J on 31 August 2023 to make clear that the assets implicated did not extend to those of certain companies in which D1 and D2 are interested. D1 said before me at the directions hearing that this express curtailment of the scope of relief would have incensed the claimant and surmised that it was this which led to the claimant's application heard before me on 5 January 2024 to extend the scope of the injunction to cover the assets of those companies. The evidence on that application comprised telephone calls and messages apparently made and sent to Mr O'Grady from two unknown numbers, the tenor of which was, to say the least, threatening and indicative again of an intention to dissipate corporate assets. Those communications apparently took place between 16 October 2023 and 13 December 2023, culminating in threats made to Mr O'Grady in person on Boxing Day 2023 when his car was stopped and he was effectively warned about his ongoing pursuit of the current litigation. Given the content of these messages and the verbal threats, the claimant submitted before me on 5 January 2024 their belief was that the source of the threats was D1 and D2.
6. That belief was said to be reinforced by the report produced by the forensic offshoot of the claimant's solicitors, MdR Cyber, following the production by Vodafone pursuant to a Norwich Pharmacal order of data revealing the location of the nearest phone masts to the devices from which these malicious communications (as they have become known) were apparently sent, those locations in close proximity to the homes of D1 and D2 and the workplace of D1's wife. In the course of their submissions, the claimant made clear that the defendants disputed the authenticity of the Hazlehurst WhatsApp messages and fairly anticipated that they would do the same in respect of these malicious communications as well.
7. In light of the nature and content of the communications and the risk of dissipation they indicated, including from the assets of companies, I acceded to the claimant's without notice application, extending the injunctive relief to cover those corporate assets as well. On the evidence before me, I was satisfied that this exceptional relief was warranted. Indeed as D1 accepted before me at the directions hearing, if the Hazlehurst messages and the malicious communications had been sent, both orders would have been entirely justified. However, D1 also said that neither set of messages was genuine and, as it was put in no uncertain terms, there had been a fraud on the court here, with both court orders having been procured on the basis of concocted evidence, a concoction allegedly carried out by Mr O'Grady in combination with Mr Hazlehurst and other persons unknown.
8. D1 therefore applied on 6 December 2024 to set aside both orders, also seeking directions for that purpose for a five day hearing at which the alleged fabrication could be explored with the witnesses concerned giving live evidence and technical expert evidence on the electronic communications. That hearing, it was said, should be expedited.
9. Before moving away from matters of a more procedural nature, I mention four further related aspects. First on 14 February 2024, D1 made an application seeking to vary my injunction order from 5 January 2024. That application was heard on 22 March 2024. Although framed as an application for variation, the draft order accompanying it first sought a declaration that there had been non-disclosure by the claimant company. That application was advanced on the basis that, as the claimant had foreshadowed before me in January, not only did D1 dispute the authenticity of the Hazlehurst messages, he disputed the authenticity of the malicious communications as well, saying in his evidence that both were fabricated.
10. The draft order also indicated additional relief in the form of (ii) a declaration as to the claimant's alleged abuse of process by using my January order to impede the normal banking activities of certain companies associated with D1 and by registering restrictions against the title of properties owned by those companies (iii) an order requiring Mr O'Grady to swear an affidavit verifying that made by his solicitor in support of the application for my January order (iv) a variation to the injunction to limit the scope of enquiries that a bank had to make when a relevant company sought to withdraw funds (v) the disclosure of the application papers in respect of the Vodafone Norwich Pharmacal order and (vi) finally, the withdrawal of restrictions lodged at His Majesty's Land Registry.
11. By the time of that hearing, D1 had withdrawn his application, save to the extent of the Norwich Pharmacal papers and the limitation variation. I rejected both requests for relief for the reasons given then. I should also say that, although the permission had been given to the release of Vodafone data by Bacon J on 19 January 2024, this had still not been sought by D1 as at the date of the hearing on 22 March 2024.
12. Second, on 19 April 2024, Mr Hazlehurst's solicitors disclosed that the mobile phone he had been using at the time of the WhatsApp messages in July 2023 was broken while he was on holiday in August 2023 and that his device was replaced shortly after that. Moreover, when it came to Mr Hazlehurst's compliance with the imaging order, he had handed over his new phone to the supervising solicitor without explaining that fact. D1 relies not only upon Mr Hazlehurst's original phone having been conveniently lost but also the evidence of the supervising solicitor from November 2024 to the effect that it would have been clear to Mr Hazlehurst that he was required to hand over the phone to and from which the July 2023 WhatsApp messages were apparently sent and that Mr Hazlehurst had not indicated then that this was no longer available, or that he was handing over for imaging his replacement phone. To a similar end, D1 also relies upon the apparent theft of Mr O'Grady's phone on 12 September 2023 which is also now conveniently unavailable to corroborate his account of how the Hazlehurst messages came to his attention in July 2023.
13. Third, on 20 March 2024, two days before the hearing of D1's variation application, D2 applied to set aside both injunction orders and, to that end, sought related directions before me including orders for cross-examination of Mr Hazlehurst, Mr O'Grady and the claimant's solicitor, Mr Whelan. The hearing of that application took place before me on 23 May 2024. Notably, although D2 and D1 in their supporting evidence reiterated their position that the various communications did not emanate from them, D2 submitted that he was not asserting dishonesty on the part of those persons he was seeking to cross-examine, although highly unsatisfactorily in my view, he also indicated that he might assert dishonesty depending upon what the evidence might reveal. Given that the allegations and proposed areas of cross examination and expert evidence were so ill-defined, given what the authorities indicated as the rarity of cross-examination on interim applications and, relatedly, what I considered to be the somewhat languid approach of D2 to the application and the evidence required for its determination, I rejected the directions sought by D2 who subsequently withdrew his set aside application shortly before it was due to be heard on 26 November 2024.

D1'S APPLICATION TO SET ASIDE THE INJUNCTION ORDERS

14. Fourth, and turning to the present application, less than two weeks after the withdrawal of D2's application, D1 issued his own set aside application dated 6 December 2024 which came before me recently for directions. At the directions hearing, it is fair to say that D1 did not pull his punches, making clear on the first day that he was not advancing a case of non-disclosure on the original without notice applications rather than, much more bluntly, a case of fraud on the court, albeit not on the basis of a separate cause of action as such. On the second day, I discerned that he had changed his position somewhat, now saying that he was in fact advancing a non-disclosure case as well. He also sought to give some particularity on the second day to both aspects. In relation to the allegation of fraud on the court, D1 asserted with respect to the Hazlehurst messages that:-

i) Mr O'Grady, or a person acting on his behalf, obtained a burner phone;

ii) the burner phone was used to communicate with Mr Hazlehurst's mobile;

iii) Mr Hazlehurst saved the burner phone's number as D1's number in his contacts;

iv) the result is that when a screenshot is taken of Mr Hazlehurst's WhatsApp messages, D1's number appears as the name in the header;

v) the messages purporting to come from D1 were, in fact, sent by Mr O'Grady or his confederate to Mr Hazlehurst's phone;

vi) Mr Hazlehurst took screenshots of the exchange;

vii) those screenshots were saved to JPEG files;

viii) the JPEG files were forwarded to the claimant's solicitors; and

ix) Mr Hazlehurst never in fact communicated with D1.

15. In relation to the later malicious communications, D1 says that:-

i) Mr O'Grady, and one or more persons acting on his behalf, purchased the burner phones;

ii) they drove to D1's home, D2's farm and the cafe where D1's wife worked; and

iii) they sent messages to Mr O'Grady.

16. In this regard, D1 fairly accepted there had been an error in his skeleton argument in which he had attempted to explain the claimant's suggested modus operandi in the generation and transmission of the concocted communications. In relation to the Boxing Day incident, D1 says that this was completely made up. In relation to the allegation of non-disclosure, D1 framed matters orally at the directions hearing in the following terms:-

i) Mellor J was not told the metadata sitting behind the images from Mr Hazlehurst's phone was not available as opposed to screenshots only;

ii) I was not told that Mellor J had, when presented with the application for an imaging order, expressed reservations about the evidence underlying his own injunction order perhaps being too good to be true;

iii) I was not told that Mr O'Grady had failed to preserve the evidence on his own phone; and

iv) I was not told that the MdR Cyber report was biased.

THE PARTIES' ARGUMENTS – D1

17. Underpinning the points just enumerated was a series of broader complaints from D1 about the conduct of the without notice applications before me and Mellor J, including the lack of metadata sitting behind Mr Hazlehurst's message screenshots, the claimant's failure to inform the court of this, the failure of Mr O'Grady to provide more quickly an affidavit confirming his own solicitor's affidavit on the injunction application before me and, even when he did, swearing an affidavit in different terms, Mr O'Grady's failure to preserve data on his own phone concerning how he came to know of the Hazlehurst messages, the absence of the satisfactory explanation for the delay in applying for the extension to the injunction order in January 2024 given the suggested commencement of the malicious communications in October 2023, the failure to provide the police report of the malicious communications as opposed to the Boxing Day incident, the claimant's failure to produce the application for the Norwich Pharmacal application against Vodafone, the unfair presentation in the MdR Cyber report of the cell site data, the circumstances in which the police came to arrest D1's wife on 6 January 2025, the devastating impact of the injunction in terms of the defendant's inability properly to conduct the financial and banking affairs of the relevant companies and the orders now being used as the basis for an application for committal for contempt of both D1 and D2.
18. As to the claimant's resistance to an evidentiary hearing with oral testimony to determine the set aside application, D1 says that (i) it is not a waste of court time and resources if, as here, the court is presented with a properly arguable case that it has been induced to make orders based on fraud - if anything, it should be matter of concern to the court to hear the application as soon as possible; (ii) there is no substantial overlap with the evidence that will be given at trial - the focus on the set aside application will be the Hazlehurst messages and the malicious communications; (iii) that trial itself is likely to be some two years away at least by the time this is fixed at the CMC much later this year; (iv) evidence as to the existence of a feud between the main protagonists and the claim formally proceeding in Leeds is merely backdrop; and (v) the evidence as to various communications goes to dissipation, not to the issues in the main action.
19. As to the suggestion that bringing this set aside application would be an abuse of process, although D1 was not himself asserting a fresh cause of action, he did rely on certain authorities concerning judgments or settlements obtained by fraud to say there was no abuse of process. For example, in Takhar v Gracefield Developments [2020] AC 450 (at [52]-[53]) Lord Kerr held that:-

"The idea that a fraudulent individual should profit from passivity or lack of reasonable diligence on the part of his or her opponent seems antithetical to any notion of justice. Quite apart from this, the defrauder, in obtaining a judgment, has perpetrated a deception not only on their opponent and the court but on the rule of law."

20. D1 says that his 14 February 2024 application did not seek to set aside either freezing order. No question of res judicata or issue estoppel arises. Nor was D1 in a position to make a proper application to set aside the freezing order at that time. He did not have available to him the factual and expert evidence on which he now relies. Nor could D1 have reasonably been expected to have obtained this given the state of the evidence available at that point and the pressures of this heavy litigation. Nor did D1's participation as a supporting witness on D2's application dated 20 March 2024 to set aside the injunctions change that position. To the contrary, although his evidence then was consistent with the evidence he now gives, it was not until 19 April 2024 that Mr Hazlehurst disclosed that he had not preserved the metadata underlying the Hazlehurst screenshots, D2's application was withdrawn and not determined by the court and D1's current application has been brought before the court at the earliest opportunity.
21. In the circumstances, D1 says that there is no impediment to the hearing of the application and that hearing should be expedited. Moreover, given the nature of the issues arising, the case is an exceptional one such that the cross-examination is required. Likewise expert evidence is required to support the proposition that the MdR Cyber report was biased, as Ms Dainty states in her report prepared for D1. Finally, evidence concerning the functionality of WhatsApp is also required as to (i) the meaning of the two ticks shown on the WhatsApp message (ii) whether there have been deletions from D1's phone, the relevant data now having been analysed by experts on both sides, including Ms Crane for D1; and (iii) in light of the claimant's related evidence, how an SQLite database might be manipulated (for which D1 will seek a further short report).

THE PARTIES' ARGUMENTS – THE CLAIMANT

22. Turning to the claimant's position, Mold says that the unsatisfactory nature of D1's position is evident from the fact that this directions hearing occupied two days of the court's time, with a day's reading, unsurprisingly in light of the 4,000 pages of the bundle filed, with another five-day hearing proposed and another day's reading. More importantly, the application involves serious allegations of fraud on the court and, yet, there are (or at least until D1 produced these on the second day of the hearing), there were, no particulars of the allegations of fraud made. Although any allegation of a fraudulent conspiracy is denied by Mr O'Grady, this state of affairs risks serious unfairness, not least given the nature of the allegations which require proper particularisation and cogent evidence for findings to be made. To the same unfair end, Mr Hazlehurst was not given notice of this application even though fraud is apparently alleged against him too. That contrasts with the position in relation to D2 on the directions hearing for his set aside application when Mr Hazlehurst was represented and made representations.
23. The claimant also says that the timing of the application is extraordinary, not least given how D1 says that he and his family have been adversely affected by the injunction orders. In this regard, D1's application misses a number of prior steps, namely whether there has been a material change of circumstances so as to warrant an application being made at this stage. If not, the application is barred. Gee on Commercial Injunctions 7th ed. At 24-005 makes clear that:-

"Where there is an interim order made after a hearing on the merits inter partes, the court will not entertain an application to set aside that order or part of it or which is inconsistent with that order, unless there has been a material change of circumstances, or some relevant misrepresentation or mistake which makes it just to do so, or material new evidence not previously available to the applicant. This principle avoids re-litigation of the same application. It applies when it was open to the applicant to take the same points on the original hearing even though he did not do so. If a point was open to the applicant on an earlier interlocutory application and is not pursued, then the applicant cannot take the point at a subsequent interlocutory hearing in relation to the same or similar relief, absent a significant and material change of circumstances or his becoming aware of facts which he did not know and could not reasonably have discovered at the time of the first hearing.

The principle of abuse of process applies to both interlocutory hearings and final hearings. Where there has been a material change of circumstances or new material facts, the making of an interlocutory application will not be abusive."

24. As for the authorities relied upon by D1 concerning fraud on the court, those all arose in the context of separate proceedings with pleadings, disclosure and witness evidence, not on an interim application such as this. They also arose in the context of the setting aside of final judgments, with final determinations having been made either at trial or on summary determination. Finally, save in relation to Takhar, the other party in those cases was not privy to the fraudulent conduct and, unlike the fraud alleged here, the claimant in Takhar could not say one way or the other whether her signature had been forged although she thought it might have been. As D1 noted, Takhar confirmed (at [52]-[53]) that the reasonable discoverability of the fraud should not prevent a separate action for setting aside a judgment, albeit qualifying that (at [55]), including by admitting of a discretion not to allow such an action where fraud had already been argued at trial, but new evidence in relation to that fraud was now relied upon.
25. Turning to the actual facts on this interim application, the claimant says that the matters relied on by D1 could, in fact, have been raised at the hearing of his own variation application in March last year or, at the latest, at the directions hearing of D2's set aside application in May last year. Before the former application, D1 had already made well known that he denied the authenticity of the Hazlehurst messages and malicious communications. Although D1 did not ultimately pursue his application for declaratory relief with respect to the alleged non-disclosure, that was because he chose to withdraw it. The reasons alluded to at the time for not proceeding with this challenge, including in his fifth affidavit the initial lack of a verifying affidavit from Mr O'Grady and the unavailability of the Vodafone Norwich Pharmacal application papers, were not sufficient. Mr O'Grady did confirm Mr Whelan's evidence, D1 was able to identify the points of non-disclosure based on Mr Whelan's evidence and D1 was provided with the key relevant material from the Norwich Pharmacal application, namely the responsive documents provided by Vodafone pursuant to Bacon J's order of 19 January 2024. It was therefore simply not open to D1 to say, as he did in his supporting affidavit, that he still wished to challenge the 5 January 2024 order. He could and should have done so then.
26. In addition, it is evident from D1's first witness statement in further support of his application that he was already alive to the so-called limitations of the MdR Cyber report, he continued to deny previous dealings with Mr Hazlehurst, he denied exchanging messages with him and he repeated his belief that they were fabricated and that a search of his and Mr Hazlehurst's phone would confirm this.
27. By the time of his second statement in support of D2's application, D1's position had become firmer, albeit there was nothing there that could not have been stated in his first. This was not a case of ascertaining fraud through the use of reasonable diligence; fabrication was asserted at the hearings before me in March and May 2024.
28. Despite this, although offered by the claimant from as early as 11 January 2024, D1 did not provide the necessary undertakings to secure release of the Vodafone data until 28 March 2024, albeit he obviously had the mast location details from the MdR Cyber report. Moreover, since D1's phone had been imaged in August 2023, and search terms formulated, albeit belatedly, by December 2023, that could have been analysed by Cyfor in good time for both hearings. However, search terms were not finalised until the consent order dated 6 June 2024 and Cyfor then instructed to prepare a report, which they did on 8 July 2024. Given these matters, the Crane and Dainty reports could be been produced much earlier than they were. In this regard, the claimant expressed concerns about 'expert shopping', D1 having received the Cyfor report but then going on to obtain another report from Ms Crane, with inconsistencies apparent between the two.
29. Furthermore, even though D1 must have known where he was at the time of the malicious communications, he did not obtain or produce statements as to his whereabouts from those supposedly with him or what he was doing. There are now statements from his wife and daughter from March this year but, on any view, the reliability of such evidence will be diminished more than a year later. Two other statements have now been produced, apparently from March 2024, although they were not produced at the time. Finally, Lewis Silkin disclosed the issue of Mr Hazlehurst losing his phone on 19 April 2024 and D1 was well aware of this, referring to it in his first statement on D2's set aside application.
30. Standing back from the minutiae of the procedural steps taken (or not taken) by D1, the claimant says that there is no reason why the application before me now could not have been made on the hearing of its first application on 22 March 2024 or why D1 could not have joined in D2's application heard in May 2024. All the evidence now relied on by D1 could and should have been available then.
31. I should also add that the claimant took me through each of the points relied on in D1's skeleton argument as indicating a strongly arguable case as to the dishonesty of those said to be involved in the fabrication of evidence, pointing out why, if anything, this was weak and, in some cases, far-fetched. It is obviously not possible for me to form any view on a directions hearing, nor was I invited to do so. I simply note the issues raised on both sides.
32. Finally, the claimant said that acceding to D1's application would turn the established procedures for interim relief on their head, interim injunctions being granted on relatively brief evidence, albeit with the concrete protection of a cross-undertaking in damages if it turns out that the application should not have been granted. As the authorities show, applications to set aside interim relief should not descend into mini-trials (see, for example, Kazakhstan Kagazy plc v Arip [2014] EWCA Civ 381). Were it to be otherwise in a case such as this, any attempt to dispute the veracity of the injunction applicant's evidence would then be liable to descending into an allegation of fraud on the court.
33. Moreover, contrary to the assumption underpinning D1's position, there is no automatic right to cross-examination or expert evidence on an interim application. There are certain well known exceptions where the former might be permitted, for example as to the respondent's assets disclosed pursuant to an asset freezing order. However, even then, it is very much the exception. On any view, permission to cross-examine should not be given unless the relevant points have been fully pleaded and disclosure given. D1's eleventh hour formulation at the directions hearing does not come close to what would be required and there is no evidential basis for saying that cross-examination is needed here. The invitation to this court to set aside orders in relation to which no findings of fact have been made and to make findings on the balance of probabilities without pleadings is a highly unsatisfactory half-way house between the standard procedures on a discharge application and a properly pleaded cause of action. The purpose of cross-examination is not to make out a case on fraud; it is to put a case that has already been formulated in fraud. There is a real danger that, given the informal procedure suggested, the cart would be put before the horse, all the more serious here given that Mr Hazlehurst is a third party and not even on notice of this application. D1 relies on Boreh v Djibouti [2015] 3 All ER 577 to suggest that there can be cross-examination on an injunction set aside application but that is the only case of its kind that has been identified in that category and the cross-examination there was ordered by consent, there being no dispute that the court had been misled, the question there being whether that was deliberate. Finally, there is a risk here of the cross-examination overlapping with issues that would arise at trial.
34. As to expert evidence, there was no utility without cross examination: the two applications were linked. In any event, the expert evidence is neither necessary nor of assistance: first, the claimant pointed out suggested flaws in Ms Crane's report such that it cannot stand for the propositions it seeks to assert; second, Ms Dainty's evidence that the MdR Cyber report was biased was properly a matter for submission in any event, not evidence. If it were being suggested that the MdR Cyber report was deliberately framed in a biased manner, as D1 suggested at the hearing it might be depending on the contents of the Vodafone Norwich Pharmacal application papers, that would be a very serious matter indeed.

DISCUSSION AND DECISION

35. I have taken a little time to consider the appropriate course to be adopted by the court, since this is not, in my view, a straightforward matter.
36. D1 says that he is entitled as of right to bring a set aside application. That might be a less controversial proposition were it not for the fact that, back in February 2024, he did make an application framed in terms of non-disclosure, having already made clear that he considered the Hazlehurst messages and malicious communications to be fabricated. That aspect of his application was withdrawn at the last minute and the present application was not made until December 2024, much longer than a year after Mellor J's original order. Although injunction orders obtained without notice do, understandably, afford D1 the right to apply to set aside or vary them, that is not an unqualified right in circumstances in which later argued points, if already known or reasonably discovered, could have been taken on an earlier application.
37. D1 also lent his evidential support to D2's application from March 2024, itself framed explicitly as a set aside application, with allegations again that the claimant had fabricated evidence to obtain both injunctions. At the recent directions hearing, D1 took exception to my characterisation of him acting in concert with D2. In fact, my comment had been that D1 and D2 were clearly not ploughing their separate furrows. That was not a criticism. The CPR expects parties to co-ordinate and one might particularly expect this here where D1 and D2 have an obvious common interest. However, that co-ordination has, in my view, been half-hearted, another reason why the issue is still live so long after Mellor J's original injunction in August 2023, with four days of court time so far having been allocated to the matter as between D1 and D2, and D1 urging the court to allocate another five. Those numbers exclude judicial reading time.
38. Moreover, as I observed previously in relation to D2's set aside application, I consider D1's direction of travel, culminating in this further application, to be somewhat lacking in urgency as well, with limited steps taken early on at least to progress matters in terms, for example, of the analysis of Mr Hazlehurst's phone and D1's own device, not least given the suggested seriousness of the matter.
39. Finally, even at the recent directions hearing before me, I again found aspects of D1's position unsatisfactory in terms, for example, of whether the allegation was limited to a fraud on the court, or whether non-disclosure was being pursued as well, D1's position seeming to shift during the course of the hearing. At times, I was also unable to pin down exactly what legal duty it was being said had been breached here by the claimant. Likewise, it was not until the hearing itself that D1 sought to put into writing his allegations with respect to Mr O'Grady and Mr Hazlehurst, even then pivoting somewhat in terms of how matters had been put in his skeleton argument. Those are not small points. D1 says that he was not required to formulate his allegations any more clearly. In my view, that is quite wrong. The fraud alleged here is not of the complex nature one often sees in this Division. The real gravamen of the allegation is the concoction of evidence through the creation of fake electronic messages. The suggested modus operandi for that fabrication is relatively straightforward and the fraud here is the placement of, and reliance on, that evidence before the court. However, as D1 repeatedly made clear, it was accusing Mr O'Grady and Mr Hazlehurst, and unspecified others of conspiring to pervert the course of justice. The point is not one of pleading; it is a basic point of fairness that those facing such allegations know what they are, a point made with some force by both D1 and D2 at the recent directions hearing on the committal application, a submission to which I acceded to then when I directed more precise particulars to be provided.
40. These matters notwithstanding, I return to the starting point of my decisions on D1's and D2's prior unsuccessful applications, namely my acknowledgment that they vigorously deny any knowledge of, or responsibility for, the relevant communications which led to the injunctive relief being granted against them, as was extended by me. As to whether the current application could and should have been advanced by D1 then, although I am satisfied that matters could have been progressed more quickly than they were, and in a more focused manner, and although aspects of the evidence, for example, what I will call their 'alibi' evidence or the suggested shortcomings of the MdR Cyber report were clearly available to them then, I am not persuaded that the analysis of D1's own phone would have been available sufficiently earlier for it to have been meaningfully deployed then. Likewise, the news that Mr Hazlehurst had apparently broken his phone, and that the device imaged was not that used to exchange messages with D1 and D2, was not known until 19 April 2024. Again, the timing of that disclosure would not, in my view, have permitted meaningful assimilation then of that new and important information. As such, I was not persuaded that D1 could and should have brought the current application with those earlier applications such that I do not find this to be an impediment to him proceeding now.
41. As to whether this application should proceed by way of hearing on the written evidence, or whether oral evidence is appropriate, there is no dispute that I have the power to direct the latter, albeit as the claimant submits, the authorities indicate and I accept, permission for cross-examination on interim applications is reserved for very exceptional circumstances. As the claimant says, were it otherwise, the whole pre-trial process could be significantly disrupted and become unmanageable. Such a process at the interlocutory stage also risks unfairness, where it pre-empts cross examination at trial or were the party against whom allegations is made is cross-examined without knowing the allegations being made. These considerations and the approach of the judge in such a context were considered by the Court of Appeal in Hunt v Annolight & Ors [2021] EWCA Civ 1663 (at [30] et seq.). Although arising in a wasted costs context, I have paid close regard to them.
42. Considering the circumstances here, is this one of those very exceptional cases in which it is appropriate in principle to permit cross examination? A number of matters are relevant in my view: first, the evidential basis for the Mellor J injunction was the Hazlehurst messages. Their authenticity was disputed straight away, leading to the further imaging orders. Although, as I said, D1 did not, in my view, progress matters as quickly as perhaps he should, the information as to the damage to Mr Hazlehurst's phone and how this had not been imaged when everyone else apparently thought it had been, was not revealed until April 2024, more than six months after the original injunction. I express no view here on how that information came to be revealed in that manner or what, if anything, would have been revealed if Mr Hazlehurst's original phone had been imaged but, objectively considered, this course of events, coupled with the later loss of Mr O'Grady's phone, will have made it potentially more difficult to challenge the sole evidential basis for the original order.
43. Moreover, as D1 urged upon me, at no point has this court lost sight of the seriousness of the relief granted. Asset freezing relief is by its nature draconian and puts recipients under significant pressures. In this case, that relief was extended by me on 5 January 2024 based on very serious allegations made against D1 and D2, not merely of asset dissipation but also threats of violence to Mr O'Grady and his family, albeit from anonymous sources. The circumstances of that further application were themselves exceptional, leading to the exceptional relief I granted then, with even more far-reaching and intrusive effect than Mellor J's order. That relief has since led to a committal application for the alleged breach of the related disclosure requirements. Those exceptional allegations and the exceptional relief also having been challenged from the outset by D1 and D2, culminating in further exceptional allegations of fraud on the court, themselves vehemently denied by Mr O'Grady, it seems to me this is one of those very rare cases in which cross-examination is, in principle, exceptionally warranted. In coming to that view, I am satisfied that, as serious as they are, those allegations are of a relatively straightforward and discrete nature, with limited overlap with the substantive issues.
44. As to whether such cross-examination should, in fact, be ordered here, I have already alluded to my concerns about D1's approach which appeared to countenance that there was no need to provide any further information as to what was being alleged against Mr O'Grady and Mr Hazlehurst. As D1 readily submitted, his allegation is tantamount to a conspiracy to pervert the course of justice. Some particulars were offered but this was on the second day of the directions hearing in the form of a single page case summary. Although markedly more cogent than the areas of cross-examination identified by D2 on his earlier set aside directions application (which I had no hesitation in rejecting), D1's summary too was not, in my view, adequate. It is not good enough to say that Mr O'Grady knows exactly what the allegations against him are based on a mountain of evidence and documents contained in a bundle running to some 4,000 pages, not least when there was no direct evidence of any alleged fabrication. The position is even worse for Mr Hazlehurst who is not a party.
45. What I will therefore do is this: I will say that there will be permission to cross-examine the witnesses of fact. That is subject to the following: D1 must set out as fully as possible (and within a short period of time to be discussed) the allegations being advanced against Mr O'Grady, Mr Hazlehurst and any other person(s) said to be implicated, albeit recognising the difficulty of formulating with precision exactly what steps it is alleged were taken by whom and when. Nevertheless, D1 must identify his case now and as fully as possible. The court will not entertain a fishing expedition with a view to the formulation of that case at the hearing itself.
46. To the extent it is suggested that any of the persons implicated are said to have held a particular motive for their actions, that should be identified and the reasons why they might have held it.
47. Likewise, to the extent other events or matters are relied on to support the allegations, these too must be identified. The evidence is peppered liberally on both sides with insinuation and allegations of foul play, seemingly to put the other in the worst possible light in the eyes of the court. The court will not, however, entertain cross-examination by ambush.
48. Moreover, to the extent that the D1 asserts a positive case as to why he and/ or D2 and/ or his wife were not responsible for the various communications, for example because he does not know Mr Hazlehurst, he was working or with others at a time when the particular message was sent, he did not communicate with D2 on a particular day or he simply did not do it, this too must be set out.
49. I make clear that this is not a licence for D1 to expand upon the allegations contained in the case summary presented at the hearing, rather than to explain these fully. Even if he might think the relevant matters are self-evident, he should assume that they are not.
50. If D1 does wish to pursue the four areas of alleged non-disclosure identified orally in his oral submissions, he can do so, but again he must set out those allegations in the same manner.
51. In terms of the identity of the relevant factual witnesses in respect of whom permission to cross-examination is given, D1 appeared to suggest at the directions hearing this would be limited to Messrs Holloway, Jacques, O'Grady and Hazlehurst. By that I understood him to mean that they were the central protagonists, since D1 at least put forward witness statements from other persons in support of his position and it seems to me that there should be permission to cross-examine all those whose statements have been produced, save for the parties' solicitors. D1 mentioned the claimant may wish to serve evidence in reply to his application. The claimant's position might, in fact, already be amply covered by the existing evidence but, if not, there should be provision for that.
52. Even though the solicitors will not give oral evidence, the parties must also still give careful consideration to whether any privilege issues are likely to arise and they should confer about that in short order and well before the hearing. It seems to me that they might arise, at least insofar as communications between Mr Hazlehurst or Mr O'Grady and the claimant's solicitors are concerned. Any potential issue around that needs to be identified sooner rather than later and an approach agreed now rather than problems only becoming apparent in the witness box. Similar issues might arise on D1's side and, if so, similar thought and discussion need to take place.
53. In terms of the expert evidence, the position is much more concrete than was presented on D2's set aside application. I am satisfied that the evidence of Ms Crane and Kroll with respect to D1's phone is required in this case on the existing issues covered by their respective reports, together with further evidence from Kroll and possibly Ms Crane once the image of D1's phone has been provided, and from Ms Crane as to how an SQLite database might be manipulated. Provision will also need to be made for the analysis of the data from D2's phone images. As for the communications mast data evidence, I am also satisfied that the related evidence produced by Kroll is required. I have to say that I found the position of Ms Dainty's evidence less clear. Her essential position appears to be the MdR Cyber report was biased due to its failure to disclose the limits of mast data in enabling meaningful conclusions to be drawn as to attribution. However, it was unclear to me the extent to which the technical matters underlying her conclusions were in fact contentious. If, as I suspect, they might not be, it seems to me that she may not be required to give oral evidence at all since her conclusions as to bias appear to be matters properly for submission. However, I give permission for her evidence (including, as for the other experts too, oral evidence) but with the caveat that the parties must give careful thought as to whether oral evidence from her is, in fact, required.
54. In terms of necessary additional disclosure, the claimant has now provided Norwich Pharmacal application papers. A police report was also kindly promised by the claimant and, if that has not been provided, I am sure it will be in short order. There is no dispute that the claimant should have an image of D1's phone and that too should be provided. The largest issue to my mind is the analysis of the images of D2's phone which are presently in the custody of the police. In a sense, the analysis of that data is outside the control of either party to the application, but I agree that steps need to be taken for this to be obtained and analysed, otherwise the matter cannot be fairly disposed of. I have read the recent letter from D2's solicitors which indicates that this is in hand and D2's representative is apparently observing this hearing. They are therefore aware of what is required. To the extent necessary, and it may be given the involvement of a third party - the police - the court will be content to help facilitate the production of the relevant materials.
55. In terms of timing, I was invited by D1 to expedite the hearing of the set aside application. That might perhaps be warranted but for the observation I have already made concerning D1's approach to the application to date which has not suggested particular urgency. However, and possibly to the same end, I will vacate the three-day committal hearing presently in a five-day window starting at the end of June and change that to a five-day hearing in a three-day window instead. There will be a day's pre-reading in addition. I make absolutely clear that I consider that three months is ample time for the parties to prepare fully for the set aside application, including obtaining further disclosure and analysing this. However, should there be any further delay in the matter, such that the hearing cannot be effective, D1 will have to take his position for a further hearing at the end of the queue like any other litigant. It is therefore in his interest to ensure that all outstanding issues on the application are resolved promptly.
56. Finally on the set aside application, I make a plea concerning hearing bundles. Even for a five-day hearing, a 4,000-page bundle is unlikely to be required. The parties are required to engage meaningfully in relation to that to bring it down to an irreducible minimum.

OTHER APPLICATIONS

57. Although D1 encouraged me to do so, I cannot decide now without proper argument the variation and extended stay applications, nor will I expedite those. I have decided that I will hear them in half a day at the end of the set aside hearing in June, not as an extra half day tagged to that hearing, but as part of the five days itself. I would be very surprised, given the nature of the allegations and the absence of direct or documentary evidence about them, if the full five days were required for that purpose. In the meantime, directions will be required for the service of evidence on those other applications.
(Proceedings continued, please see separate transcript)
58. Having heard and refused the claimant's application for permission to appeal against my judgment or order today, Mr Grantham canvasses the possibility of an expedited timetable for putting in papers to the Court of Appeal and the possible stay of the set aside application pending any determination by the Court of Appeal of his further permission to appeal application. As the parties are well aware, an application for permission to appeal does not itself operate as a stay of the underlying proceedings or part of them, and notwithstanding the now approaching hearing date of the set aside application, I see no reason why I should grant one. There are procedures in the Court of Appeal for consideration of applications for expedition ancillary to an appeal, and it seems to me that that is the appropriate course here. I do not think I need to make any specific directions in relation to that. The claimant will be well aware that it wants to know the position as soon as possible. D1 will likewise want to get on with matters. Although a number of grounds of appeal have been canvassed, it is actually a relatively confined matter. I therefore leave it to the parties to get on with any further application for permission to appeal and for that to be dealt in the usual way, albeit no doubt, expeditiously.
(Proceedings continued, please see separate transcript)
59. Following various consequential matters which I have dealt with today, an issue as to costs has arisen on the discrete point, which I might call the 'threshold' issue, canvassed by the claimant at that hearing as to whether D1 should have permission at all to proceed with his application in circumstances where it was said by the claimant that that course was not open to him given the history of the matter. Having considered the parties' submissions in relation to that issue, I came to the view that it was open to D1 to proceed with the application. D1 now says that the costs consequences of that, which should be visited on the claimant, are that D1 should have his costs (at least in principle) on that particular issue.
60. My provisional view coming into this hearing, which I indicated to the parties, was that costs should be in the case. Nonetheless, I retained an open mind. I heard submissions from the parties and, yet, I remain of the view that the costs should be costs in the case or, perhaps more accurately, in the application. Yes, that was one of the issues canvassed by the claimant, and one could say in a sense that they lost it but, first, this was a directions hearing and, second, given the history of the matter, as I dealt with at some length in my judgment, it was a legitimate line of argument pursued by Mr Grantham at the hearing, albeit one on which I happened to disagree with him. However, I cannot say that it was unreasonably raised and it seems to me that it would not appropriate in the context of the directions hearing to start separating out issues in that way for separate costs treatment. Costs are therefore in the application.
(Proceedings continued, please see separate transcript) - - - - - - - - - -