CA-2025-000783 - [2025] EWCA Civ 986

The judge’s order dated 18 March 2025 provides (amongst other things) for the set side application to proceed to a final hearing (paragraph 5), following particularisation of Mr Holloway’s allegations (paragraph 8) and the exchange of further factual evidence (paragraphs 9 and 10). It provides for expert evidence in relation to the forensic examination of Mr Holloway’s phone and the cell mast data (paragraphs 11 and 12). It provides for the makers of all affidavits and witness statements, apart from the parties’ solicitors, to attend (if required) for cross-examination (paragraph 13(b)). It requires Mr Hazlehurst to attend for cross-examination if Mold wishes to rely upon his affidavit (paragraph 13(c)); and it also requires Mr O’Grady to attend for cross-examination (paragraph 13(d)).

Since the judge’s order there have been a number of subsequent developments which are material.

On 25 March 2025 Mr Holloway served a Statement of Allegations against Mr O’Grady and Mr Hazlehurst pursuant to paragraph 8 of the order. Leaving aside the question of whether this fully complies with the judge’s order, it is, as counsel for Mold pointed out, a curious document in that it does not take the form of a statement of case and does not include a statement of truth. Be that as it may, it is pertinent to note that it begins with the following allegations:

“1.

[Mr Hazlehurst] and [Mr Holloway] did not know one another (contrary to [Mr Hazlehurst’s] affidavit [and witness statement] …).

2.

Prior to July 2023, [Mr Holloway] did not have [Mr Hazlehurst’s] number saved on his phone (contrary to [Mr Hazlehurst’s] [witness statement] …).

3.

[Mr Holloway] did not allow Mr Hazlehurst to tip at the Quarry (contrary to [Mr Hazlehurst’s] affidavit …).

4.

Mr Hazlehurst did not exchange the WhatsApp [M]essages (contrary to [Mr Hazlehurst’s] affidavit …).

5.

The screenshots showing the … WhatsApp [M]essages … were created by one of two alternative methodologies, as set out below. That was done by [Mr Hazlehurst] (or with Mr Hazlehurst]’s connivance) at the instigation of [Mr O’Grady].”

Other allegations include allegations that Mr Hazlehurst’s daughter did not damage his phone, but rather he deliberately destroyed it to prevent forensic examination (paragraphs 10 and 11); that Mr O’Grady’s phone was not stolen, but rather he deliberately destroyed it to prevent forensic examination (paragraphs 16 and 17); that the Malicious Communications were concocted by Mr O’Grady and one or more persons acting on his behalf, who are alleged to have purchased two “burner” phones, driven to locations close to Mr and Mrs Holloway’s home and workplace and to Mr Jacques’ home and sent the Malicious Communications to Mr O’Grady (paragraphs 18-23); and that the Boxing Day Incident did not happen, but was invented by Mr O’Grady (paragraphs 24-26).

On 11 April 2025 Mr Jacques launched an application to set aside the Freezing Order and its extension on the same grounds as those relied upon by Mr Holloway. The application was supported by a fifth witness statement of Mr Jacques in which, among other things, he explained in more detail what had happened to the phone seized by the police on 29 July 2023 and returned on 16 February 2024. Although the police had stated that an image of the phone had been taken, it had recently transpired that they meant a photograph of the object and not an image of its data. He denied wiping that phone, but understood that it could have been wiped inadvertently when his partner set up his replacement phone.

On 7 May 2025, pursuant to paragraph 9 of the Order, Mold served its evidence in response to the set-aside application, contained in a fourth affidavit sworn by Mr O’Grady and a witness statement made by Mark Tibbs of MDR Cyber. Mr O’Grady disputed Mr Holloway’s allegation that the motivation for Mold’s claim against Mr Holloway and Mr Jacques, and the Freezing Order, was a “feud”. He also expressed the view that the strength of the claim against Mr Holloway and Mr Jacques gave them a strong motive both to have sent the WhatsApp Messages and to allege that Mr O’Grady was involved in forging them. He gave a number of examples of messages from the Mold WhatsApp Group, referred to extensive documentary evidence obtained by Mold placing Mr Holloway and Mr Jacques at the centre of the illegal waste disposal and referred to a conversation he had with Tim Harper of TBS who admitted illegal tipping at the Quarry arranged with Mr Jacques with Mr Holloway’s knowledge.

Mr O’Grady went on to address the Statement of Allegations. In relation to the theft of his phone he explained that his car had been broken into while he was in Sainsbury’s, that the passenger side window had been smashed and that two laptops had also been stolen. He had reported the matter to the police the same day. Two days later the police had emailed him saying that Sainsbury’s had confirmed that the incident had been captured on CCTV, but this was not of evidential value because, although a suspect could be seen breaking into the car and taking property, the suspect could not be identified due to the fact that he was wearing a face covering and also the distance from the camera. In relation to the Malicious Communications Mr O’Grady provided detailed evidence of his whereabouts at the dates and times they were sent, in each case placing him far away from the masts from which they had been sent. He also provided further details of his reporting of the Malicious Communications and the Boxing Day Incident to the police. He also responded to Mr Holloway’s evidence concerning the phone call recorded in February 2022, suggesting that the recording supported his account of what happened on 20 February 2022 rather than Mr Holloway’s.

Mr O’Grady also responded to a statement made by counsel for Mr Holloway at the directions hearing that the Freezing Order had caused “huge practical difficulties for the Holloway family as a whole, by reason of their bank’s response to it”. The bank in question is Lloyds. Mr O’Grady noted that the Freezing Order permitted Mr Holloway to spend £1,000 a week on living expenses and Mr Holloway had not requested this limit to be increased. He said that Mold had been informed by Lloyds that Mr Holloway had consistently withdrawn £1,000 a week in cash. When asked why, Mr Holloway’s solicitors had explained that it was because Mr and Mrs Holloway were unable to use their debit or credit cards. Mr O’Grady said that that was a matter between Mr Holloway and Lloyds, but Mold had no objection to Mr and Mrs Holloway being able to use bank cards within the terms of the Freezing Order. He also explained that Mold had consented to the sale of two properties, one by Mr Holloway and one by JHHL, and had consented to various payments being made by Mr Holloway’s companies which Lloyds considered to be outside the terms of the Freezing Order.

On the same day, Mr Hazlehurst and Mr Collier each served a witness statement responding to the Statement of Allegations.

Mr Hazlehurst’s second witness statement explains in a little more detail than his previous evidence how he knew Mr Holloway, Mr Jacques and Adam Holloway. His evidence is that, in late 2020 and early 2021, he arranged through them on two occasions to tip various loads of sewage cake (a byproduct from sewage treatment) at the Quarry, in return for a fee. On this occasion he explains that he did not personally do the tipping, which was done by others, but he was the one who arranged it and took a profit on the fees paid. He also explains in more detail how he knew Mr Collier and how, in late July 2023, he came to learn from Mr Collier that a court claim was to be made against Mr Holloway and Mr Jacques, and why he decided to help Mr Holloway and Mr Jacques by letting them know about the claim, given that they had in the past helped him by allowing him to tip waste at the Quarry.

Mr Collier’s witness statement explains how he learned that there was going to be a court case concerning the Quarry, and the circumstances in which he passed that information on to Mr Hazlehurst. He says that he later saw the WhatsApp Messages on Mr Hazlehurst’s phone and explains why, at Mr O’Grady’s request, he pressed Mr Hazlehurst to pass the WhatsApp Messages on to Mold’s solicitors. He also says that he replaced his phone in late 2024.

Also on 7 May 2025 Ms Crane and Jason Coyne of Kroll produced a joint expert’s statement. They agreed that the WhatsApp Messages in the screenshots appear correct; that the WhatsApp Messages were not found in the data extracted by CCL from Mr Holloway’s phone, but that the method used by CCL would not collect deleted WhatsApp records; and that, although there was no gap in the values in the WhatsApp database in the relevant database, they could not state that there were no deletions. Also on 7 May 2025 Ms Crane produced a supplemental report. On 14 May 2025 Mr Coyne produced an expert report.

On 19 May 2025 Mr Holloway served evidence in reply consisting of a ninth affidavit sworn by himself and a second witness statement made by Adam Holloway. Each took issue with points made by Mr O’Grady and/or Mr Hazlehurst. In particular, Mr Holloway denied allowing Mr Hazlehurst (or anyone else) to tip at the Quarry. Mr Holloway also said that he had suffered numerous practical difficulties as a result of the Freezing Order as had his companies. One of his complaints is about being unable to use a bank card, but there is no explanation as to why this should continue to be the case given Mr O’Grady’s statement that Mold has no objection to this. Another complaint is that Mr Holloway has attended the bank in person numerous times to request payments to be made, but the Lloyds CPO unit always tells the branch staff that he needs permission from Mold.

The parties agreed that all of these additional materials should be admitted as further evidence on the appeal.

Mold’s appellant’s notice appealed against paragraphs 11-13 of the order dated 18 March 2025, but only to the extent of setting aside the parts which directed the cross-examination of witnesses, alternatively to varying the order so that such cross-examination should take place at the trial of Mold’s substantive claim. On 17 April 2025 I granted Mold permission to appeal on four out of six grounds and expedited the appeal.

In his argument on the appeal counsel for Mold requested this Court to direct that Mr Holloway’s set-aside application be determined at the same time at the trial of Mold’s substantive claim, and did not pursue the challenge to the parts of the order which directed cross-examination. Furthermore, he condensed the four grounds of appeal into three.

Ground 1 is that the judge erred in law in ordering the set-aside application to be determined by means of a hearing with oral evidence, including expert evidence, in advance of trial because that is contrary to the established practice of the court.

Ground 2 is that, even if it was in principle open to the judge to order such a satellite trial, he was wrong to do so on the facts of this case, having regard to the overlap between the issues arising on the satellite and substantive trials, the undesirability of trying relevant issues of fact in advance of the substantive trial, the absence of exceptional circumstances, and the impact on third parties. In so doing he failed to take into account all relevant considerations and took into account irrelevant matters, thereby coming to a decision that no reasonable tribunal could properly reach.

Ground 3 is that the judge erred in law in failing to give due regard to the procedural unfairness that would arise from the absence of statements of case or disclosure, and the lack of restrictions on the specific topics on which cross-examination would be permitted.

On 6 May 2025 I granted Mr Hazlehurst permission to intervene in the appeal. Counsel for Mr Hazlehurst supported Mold’s arguments, but emphasised the impact of the judge’s order on him.

The judge’s decision was one of case management. As Lewison LJ said in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at [51] (cited with approval by Lord Neuberger in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64, [2014] 1 WLR 4495 at [13]):

“Case management decisions are discretionary decisions. They often involve an attempt to find the least worst solution where parties have diametrically opposed interests. The discretion involved is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decisions as the judge. The question is whether the judge’s decision was wrong in the sense that I have explained.”

Counsel for Mold’s starting point for this ground was to submit that it was important, amidst the welter of allegations and counter-allegations, not to lose sight of the fact that Mr Holloway’s application was an application to set aside a freezing order. Although Mr Holloway alleged that the evidence relied upon by Mold to obtain the Freezing Order and its extension was forged (in the case of the WhatsApp Messages) and concocted (in the case of the Malicious Communications), the application was in principle no different to any application to set aside a freezing order as having been obtained by means of false evidence. Such applications were, regrettably, not that uncommon, even if the precise nature of the allegations made by Mr Holloway was unusual.

Furthermore, the evidence challenged by Mr Holloway had been relied upon by Mold solely to establish a risk of dissipation. Mr Holloway did not dispute that the other requirements for the making the Freezing Order and its extension, and in particular the existence of a good arguable case, were satisfied.

On the other hand, it is common ground that the evidence challenged by Mr Holloway was the only evidence relied on by Mold to establish a risk of dissipation. It follows that, if that evidence was false, there was no basis for the Freezing Order and its extension. Accordingly, contrary to the submission of counsel for Mold, it is irrelevant that Mold only needed to establish a risk of dissipation and that did not require proof of any facts on the balance of probabilities. Furthermore, if the Freezing Order and its extension were obtained by means of fabricated evidence, then Mold should be deprived of the benefit of those orders.

Counsel for Mold submitted that it was the settled practice of the court not to attempt on interim applications, and in particular applications to set aside or discharge freezing orders, to resolve disputed questions of fact in advance of trial, particularly where the resolution of such questions required cross-examination of witnesses. There were sound reasons for this practice:

The principal authority counsel for Mold relied upon in support of this submission was Derby & Co Ltd v Weldon [1990] Ch 48. In that case the judge had continued a domestic Mareva injunction (nowadays referred to as a freezing order) granted without notice, but considered that he was bound by authority to decline to extend it worldwide. This Court allowed the plaintiffs’ appeal against the refusal of worldwide relief and dismissed the defendants’ cross-appeal against the finding that there was a likelihood that they would dissipate their foreign assets if not restrained. In observations with which May LJ agreed at 56 and Nicholls LJ agreed at 64, Parker LJ was highly critical of the fact that the hearing of the application in the court below had taken 26 days and the appeal had taken seven days.

Parker LJ said at 57 that the following statement of principle of Lord Diplock in American Cyanamid Co. v Ethicon Ltd [1975] AC 396 at 407-408 was equally applicable to Mareva cases:

“It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that ‘it aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing’: Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628, 629.”

Having explained that, in the court below, the defendants had not accepted until the eighteenth day of the hearing that the plaintiffs had a good arguable case, and that, on the cross-appeal, the defendants had sought to persuade the Court to attempt to resolve conflicts of fact going both to the merits of the claim and the question of the risk of dissipation, Parker LJ said at 58:

“What … should not be allowed is (1) any attempt to persuade a court to resolve disputed questions of fact whether relating to the merits of the underlying claim in respect of which a Mareva is sought or relating to the elements of the Mareva jurisdiction such as that of dissipation or (2) detailed argument on difficult points of law on which the claim of either party may ultimately depend.”

This statement was reiterated by this Court in Sukhoruchkin v Van Bekestein [2014] EWCA Civ 399 at [32] (Sir Terence Etherton C).

Although Derby v Weldon concerned an application for a freezing order, similar statements have been made concerning applications to discharge freezing orders. In Kazakhstan Kagazy plc v Arip [2014] EWCA Civ 381, [2014] 1 CLC 451 Longmore LJ said at [23] that it was “very important that applications to discharge freezing injunctions do not turn into mini-trials; parties are often tempted to anticipate the real trial on these applications, but that temptation must be firmly resisted”. He went on at [36] to cite with approval the following statement by Toulson J in Crown Resources AG vVinogradsky (unreported, 15 June 2001):

“Speaking in general terms, it is inappropriate to seek to set aside a freezing order for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself.”

The same statement was also cited with approval by David Richards, Flaux and Newey LJJ in PJSC Commercial Privatbank v Kolomoisky [2019] EWCA Civ 1708, [2020] Ch 783 at [245], who said that it was “of wider significance”.

The combined researches of counsel have only identified one case in which there has been cross-examination of a witness prior to trial for the purpose of determining an application to set aside a freezing order, namely Boreh v Republic of Djibouti [2015] EWHC 769 (Comm), [2015] 3 All ER 577. The following points should be noted about this case:

In my view the principle stated by Parker LJ in Derby v Weldon and the line of authority which follows it is a salutary one for the reasons articulated by counsel for Mold. Mr Gray’s unsuccessful attempt to appeal against Boreh v Djibouti illustrates another potential problem with satellite trials, which is the need to ensure procedural fairness for non-parties such as Mr Gray, or here Mr Hazlehurst, who are accused of serious wrong-doing. Although that problem does not disappear if such issues are dealt with at the substantive trial, steps taken to ensure procedural fairness for non-parties are more likely to be proportionate at the substantive trial.

I do not accept, however, that the principle stated by Parker LJ is an absolute or inflexible one. Otherwise, it could itself be a source of injustice. There may be exceptional cases in which, even if a fact critical to the obtaining or discharge of a freezing order or other interim relief is disputed so as to require cross-examination, it can be determined in advance of trial in a manner which is both proportionate and avoids the risks of taking that course. This is more likely to be the case if (i) it appears probable that the fact can readily be established by evidence falling with a relatively narrow compass and (ii) the fact is not one which is germane to any of the substantive issues in the underlying proceedings: compare the approach to applications for the committal of witnesses who are alleged to have made false witness statements described by Moore-Bick LJ in KJM Superbikes Ltd v Hinton [2008] EWCA Civ 1280, [2009] 1 WLR 1406 at [18]-[19].

I would therefore not allow the appeal on ground 1, but the factors I have considered in this context are highly material to ground 2.

Counsel for Mold submitted that the judge had in numerous respects erred in principle, had failed to take relevant factors into account, had taken irrelevant factors into account and was in any event plainly wrong. It is not necessary to consider all these submissions as it is sufficient to consider the principal errors identified by counsel for Mold.

The first and most significant error is that the judge never addressed the submission made in paragraph 75 of Mold’s skeleton argument, and therefore never asked himself the question identified in the first paragraph of this judgment: should the set-aside application be heard at a stand-alone hearing with oral evidence from factual and expert witnesses or should it be heard together with the trial of Mold’s claim? In short, should be there two trials or one?

There is no challenge by Mold to the judge’s decision that Mr Holloway is not debarred from pursuing the set-aside application on the grounds of abuse of process or delay. Nor does Mold now challenge his decision that cross-examination is required to determine the issues raised by the application. On the contrary, Mold agrees with it. (For this reason, there is no need for me to discuss a number of authorities cited by the parties in their skeleton arguments as to the circumstances in which cross-examination of a witness may be permitted prior to trial.) Nor does Mold now challenge his decision that the parties should be permitted to adduce expert evidence. On the contrary, Mold accepts that the admission of expert evidence is appropriate, albeit that it is unlikely, for the reasons outlined below, to be determinative.

As counsel for Mold submitted, however, it does not follow that there should be a satellite trial in advance of the main trial. There is precedent for an application to set aside interim orders being determined at trial where this requires the determination of disputed factual questions, a well-known example being Columbia Pictures Inc v Robinson [1987] Ch 38. In the present case, there are a number of strong reasons for having one trial and not two, some of which I have anticipated in considering ground 1.

The first is that having two trials is inherently likely to be less efficient and more costly for the parties than one. It will also require a greater share of the court’s resources, to the detriment of other litigants. It will also involve a number of witnesses having to give evidence twice, which is undesirable for obvious reasons. This point is emphasised by the sheer scale of the satellite trial provided for by the judge’s order. Even when the judge made his decision, it was Mr Holloway’s team’s own estimate that a five day hearing (plus one day’s judicial pre-reading) would be required. At counsel for Mold observed, now that it is known that 12 factual witnesses will be called and four expert witnesses, it may reasonably be doubted whether five days would suffice. This is in circumstances where more than two days of court time had already been devoted to the issue of directions for the determination of the set-side application by the time the judge’s order was made, and at the time of the hearing before this Court the parties were preparing for a further directions hearing estimated at another day.

The second reason is that the evidence at the satellite trial would be incomplete, not least because there has been no disclosure yet. As counsel for Mold submitted, it is very unsatisfactory that Mr Holloway should be permitted to make the allegations advanced in his Statement of Allegations without being required to give disclosure. A simple illustration of the point is the recording of the phone conversation with Mr O’Grady in February 2022 first mentioned in, and exhibited to, Mr Holloway’s eighth affidavit (paragraph 71 above). If Mr Holloway has other relevant recordings, or other relevant documents, he should be required to disclose them before these issues are determined, and yet the judge’s order does not require this.

The third reason is that it is plain that there will be a significant overlap between the issues arising on the set-aside application and the issues arising on Mold’s claim. I will explain why this is so below. At this stage I would note that the judge made no attempt to avoid this by setting limits on the scope of cross-examination permitted at the satellite trial. If he had attempted to do so, it would quickly have been apparent that this was not feasible for reasons that will appear.

The fourth reason is that it will be more difficult proportionately to ensure procedural fairness for non-parties such as Mr Hazlehurst and Mr Collier. As an illustration of this point, as explained above, the judge made his order without hearing from Mr Hazlehurst. At the further directions hearing which was scheduled, Mr Hazlehurst was intending to apply for permission to be represented at the satellite trial, an application partly opposed by Mr Holloway. I express no view as to the appropriateness of Mr Hazlehurst being represented, or as to the extent to which Mr Hazlehurst should be permitted to participate in the satellite trial if it were to proceed, questions on which we heard no argument. It is frequently the case that non-party witnesses are accused of wrong-doing in the course of trials. In that context courts are accustomed to ensuring that such witnesses are fairly treated. While procedures can be put in place to achieve the same result at a satellite trial, this is less likely to be proportionate.

When asked to justify having two trials rather than one, the best that counsel for Mr Holloway could do was to emphasise that, if Mr Holloway was right, Mold had been guilty of perverting the course of justice and to argue that Mr Holloway would be prejudiced if the setting aside of the Freezing Order was delayed until after the substantive trial, which he suggested might not take place for another two years.

So far as the first part of this submission is concerned, I entirely accept that what is alleged against Mold is extremely serious. But those allegations have yet to established, and the question at this stage is how best to determine their correctness. As Males J (as he then was) observed in National Bank Trust v Yurov [2016] EWHC 1914 (Comm) at [22]:

“Inevitably there will be some cases in which a freezing order is granted where it can only be seen with hindsight after judgment in the action that it should not have been and that there were serious and culpable failures of disclosure by the claimant. … That, however, is not a consequence of adopting the disciplined approach proposed by Toulson J [in Crown Resources v Vinogradsky] and adopted by the Court of Appeal in Kazakhstan Kagazy v Arip]. Rather it is a necessary consequence of a system where hotly contested issues of fact can only be fairly and finally resolved at the trial. … The remedy for a defendant who suffers an injustice as a result of a freezing order remaining in position until the trial when in fact it should not have been granted in the first place is to enforce the claimant’s undertaking in damages which, when appropriate, will need to be properly secured to protect a defendant against foreseeable loss.”

As for the second part of counsel for Mr Holloway’s submission, I am unimpressed with it for a number of reasons. First, by the time the set-aside application was launched on 6 December 2024 Mr Holloway had been subject to the Freezing Order since it was served on 10 August 2023, over 16 months. On his account, he had known that the WhatsApp Messages must have been fabricated as soon as the Freezing Order had been served. The same goes for the order of 5 January 2024 and the Malicious Communications. As the judge commented, Mr Holloway showed no urgency in bringing his application.

Secondly, as I have pointed out, Mr Holloway’s application does not seek an inquiry as to damages pursuant to Mold’s cross-undertakings, nor did Mr Holloway claim in either his seventh or eighth affidavits that he had suffered any loss or even inconvenience due to the Freezing Order or its extension. Such a claim was only made in support of this application in his ninth affidavit sworn after the judge’s order (paragraph 93 above). I acknowledge that freezing orders are capable of causing serious disruption for individuals and companies that are subject to them, but in this case there is little or no evidence of any financial damage to Mr Holloway or his companies. While there is evidence of inconvenience to Mr Holloway and his wife, that appears to be at least partly attributable to problems caused by Lloyds which ought to be surmountable (for example the bank card issue, see paragraph 88 above). No doubt for these reasons, there has been no application by Mr Holloway to increase the fortification of the cross-undertaking originally provided by Mold, which still stands at £100,000 (a sum already dwarfed by the costs generated by Mr Holloway’s set-aside application).

Thirdly, the Court was given no reason why the trial of Mold’s claim should be as much as two years away. As can be seen from the procedural history, the claim was started as long ago as 11 August 2023, yet it has not even progressed as far as disclosure. Part of the reason for this is the time, effort and money that has been eaten up by Mr Holloway’s and Mr Jacques’ applications to set aside and vary the Freezing Order and its extension. What this case really needs is firm case management to get it to trial as soon as is realistically possible.

I turn to the second and third errors in the judge’s judgment, which are interrelated. The second error is that the judge recognised that Mr Holloway’s allegations were unparticularised, and ordered that they be particularised, yet made his order for the satellite trial before those particulars had been provided. Thus he made the order without full visibility of Mr Holloway’s allegations. As counsel for Mold submitted, this put the cart before the horse.

The third error is that the judge’s bald statement at the end of [43] that there was “limited overlap with the substantive issues” is wholly unreasoned: the judgment contains no analysis of the issues respectively raised by the set-aside application and the substantive claim and the extent of any overlap. Upon analysis, it is plain that, as I have said, there is in fact a significant overlap, although it is fair to say that this is somewhat clearer in the light of Mr Holloway’s Statement of Allegations.

Before turning to consider the overlap, I should explain that it was common ground before this Court that the expert evidence is unlikely to be determinative of the issues concerning the WhatsApp Messages and the Malicious Communications. In the case of the WhatsApp Messages, Mr O’Grady’s phone and Mr Hazlehurst’s phone used on 26 July 2023 are no longer available. Mr Holloway says that this is very convenient for them, but Mr Jacques’ phone is no longer available either, nor is there any image of the data on it. Although Mr Holloway’s phone was imaged, the joint experts’ statement of Ms Crane and Mr Coyne suggests that the possibility of data having previously been deleted cannot be excluded. Mr O’Grady’s evidence raises the possibility that Mr Holloway had a second phone anyway. As for the Malicious Communications, it is not clear to what extent the reliability of the Vodafone cell mast data is still challenged by Mr Holloway. It is common ground that, even assuming that it is reliable, it does not demonstrate who was using the phones in question to send the Malicious Communications. Resolving that question will depend on the factual evidence.

In those circumstances it was common ground before this Court that much will depend on the credibility of the various factual witnesses. But the credibility of the factual witnesses will depend upon an assessment of that evidence as a whole, which necessarily will include evidence concerning the substantive issues. It is sufficient to illustrate this point in five ways.

First, there is Mr Hazlehurst’s evidence concerning the WhatsApp Messages. He has no interest in the substantive claim. The credibility of his account depends in large part of his account of his motives (i) for tipping off Mr Holloway and Mr Jacques and then (ii) thinking better of it and disclosing what he had done to Mold. That in turn depends on his evidence as to his prior relationship with Mr Holloway and Mr Jacques, and his evidence that they allowed him to tip waste (or allow others to tip waste) at the Quarry in return for payment. These points are highlighted by paragraphs 1 to 3 of Mr Holloway’s Statement of Allegations alleging that Mr Holloway did not know Mr Hazlehurst, did not have his phone number and had not allowed him to tip at the Quarry. That goes straight to the merits of the substantive claim.

Secondly, there is the background section in Mr Holloway’s seventh affidavit (paragraphs 57-61 above). As that demonstrates, it is Mr Holloway’s own case that the obtaining of the Freezing Order must be seen against the background of the prior relationships between the individuals involved, and the enmity between Mr Hughes, Mr Taylor and Mr O’Grady on the one hand and Mr Holloway and Mr Jacques on the other hand as a result of the events of 2015-2022 concerning both the running of the Quarry and the Leeds Proceedings and the Administration Proceedings concerning JHH’s loan to Mold. These events also form the background to many of the specific factual issues raised by the set-aside application (such as the reference in the Malicious Communication on 6 December 2023 to Mr O’Grady smiling in court, see paragraphs 31 and 36 above).

Thirdly, there is the question of Mr Holloway’s and Mr Jacques’ motivation. As Mr O’Grady makes clear in his evidence, and counsel for Mold confirmed, it is Mold’s case that Mr Holloway and Mr Jacques had a motive to send the WhatsApp Messages and the Malicious Communications because they knew that Mold would have a strong case against them. As counsel for Mold made plain, this will involve cross-examining Mr Holloway and Mr Jacques upon (among other things) messages they exchanged as part of the Mold WhatsApp group which Mold contends show that they were responsible for the illegal tipping. Again, this goes straight to the merits of the substantive claim.

Fourthly, there is the evidence of Mr Davies. Mold intends to rely upon it as part of its case on the set-aside application. Counsel for Mr Holloway submitted that this evidence was irrelevant and therefore he would not challenge it. As counsel for Mr Holloway was constrained to accept, however, Mr Holloway does not accept that Mr Davies’ evidence is true. If the evidence is relevant, as it at least arguably is for the reasons explained above, then Mr Holloway will have to put his case to Mr Davies in cross-examination. Again, this goes straight to the merits of the substantive claim.

Fifthly, there is what Mold characterises as the propensity of Mr Holloway and Mr Jacques to try to pin the blame for their own actions on others. In the case of the WhatsApp Messages and the Malicious Communications, it is said that they are trying to pin the blame on Mr Hazlehurst and Mr O’Grady. In the case of the substantive claim, it is said that they are trying to pin the blame on (among others) Mr Amos and Mr Greaves. Thus Mr Holloway and Mr Jacques will be cross-examined about the latter as well as the former.

It is no answer to these points that, as counsel for Mr Holloway submitted, Mr Holloway accepts that Mold has a good arguable case. Nor is it an answer that, as counsel for Mr Holloway also submitted, Mr Holloway is much more at risk if an adverse finding as to his credibility is made than is Mold if adverse findings as to the credibility of Mr O’Grady and Mr Hazlehurst are made. The fact remains that the issues raised by the set-aside application overlap significantly with those raised by Mold’s claim.

The last criticism of the judge’s judgment advanced by counsel for Mold which I shall mention is that the judge’s reasoning was inconsistent with the reasoning in his earlier judgment of 23 May 2024 dismissing Mr Jacques’ applications for cross-examination and expert evidence (paragraph 48 above). In that judgment the judge cited Derby v Weldon, National Bank v Yurov and Kazakhstan Kagazy v Arip, and concluded that it would be inappropriate to order a mini-trial. Counsel for Mold submitted that the judge had been correct to reach that conclusion, and that there had no development between 23 May 2024 and 18 March 2025 which justified the judge in reaching a different conclusion on Mr Holloway’s application. I agree with this.

In conclusion, I would allow the appeal on ground 2. In my judgment it is plain that the right course is to direct that Mr Holloway’s set-aside application be heard together with the trial of Mold’s claim. The same must go for Mr Jacques’ me-too application.

It is not necessary to consider this ground separately, although it can be seen that it raises issues which I have taken into account in considering ground 2.

Mr Holloway served a respondent’s notice raising three grounds. One relied on Boreh v Djibouti, which I have considered above. A second identified additional factors to those relied upon the judge for concluding that the present case was sufficiently exceptional that cross-examination should be permitted on an interim application. As I have explained, Mold does not dispute that there should be cross-examination. The third invoked the principle that a party which has misled the court should be deprived of the benefit of doing so. As discussed above, that principle is not in dispute; but Mr Holloway’s reliance upon it begs the question whether Mold has misled the court.

I am very grateful to Arnold LJ for setting out the background to this matter and the issues that arise. I concurred in the decision to allow the appeal on Ground 2, but not on Ground 1, and in this judgment I explain why I took that view.

On Ground 1 Mr Crow submitted that the Order made was wrong in principle because it was contrary to the settled practice of the Court when dealing with interlocutory applications. He formulated a number of propositions of law, of which the first three were as follows:

These submissions to my mind elide two distinct situations which it is helpful to keep apart. The first is the ordinary application for the grant of an interlocutory injunction. (We are only concerned with interlocutory injunctions and not with final injunctions granted at trial to which very different considerations apply, so I will hereafter refer simply to an “injunction”, by which I mean an interlocutory injunction.) I have no difficulty with the proposition that on such an application the practice is not to seek to resolve disputed questions of fact, and hence the Court will not hold anything in the nature of a trial when deciding whether to grant an injunction. This is not of course peculiar to freezing injunctions but is a general practice applicable to all injunctions. There is nothing surprising about it, as the whole point of an injunction is that it preserves the position until the parties’ legal rights can be determined at trial. Ever since the seminal decision of the House of Lords in American Cyanamid Co v Ethicon Ltd [1975] AC 396, it has been clear that in the ordinary case it is no part of the Court’s function on hearing an application for an injunction to attempt to resolve conflicts of evidence as to disputed facts on the basis of affidavits (or witness statements). These are matters to be dealt with at trial. Nor does the Court need to be satisfied that the claimant has a prima facie case (in the sense that on the evidence before the Court the claimant appears more likely to win at trial than not): it is sufficient if the Court is satisfied that the claim is not frivolous or vexatious, that is, that there is a serious issue to be tried: see per Lord Diplock at 407F-H.

The same applies to an application for a Mareva or freezing injunction. That was decided by this Court in Derby v Weldon [1990] Ch 48: see per Parker LJ at 57C-58G, expressly endorsed by May LJ at 56D and by Nicholls LJ at 64E. Parker LJ said at 57G that the only difference between an application for an ordinary injunction and a Mareva was that in the former a plaintiff need only establish that there is a serious question to be tried whereas in the latter the test “is said to be whether the plaintiff shows a good arguable case”, but that this difference, “incapable of definition”, did not affect the applicability of Lord Diplock’s observations to Mareva cases. Even this distinction has now effectively disappeared according to the most recent consideration by this Court of the vexed question of what is meant by a “good arguable case”: see Unitel SA v Dos Santos [2024] EWCA Civ 1109, [2025] 2 WLR 255.

It follows that it is no part of the Court’s function on an application for a freezing injunction to seek to resolve disputed issues of fact, whether they go to the merits of the substantive claim, or to the risk of dissipation: see Derby v Weldon at 58C per Parker LJ. I therefore accept the first two of Mr Crow’s propositions so far as concerns the grant of an injunction.

Mr Crow said that the same applied to an application for discharge of an injunction. For this he referred us to Ninemia-Maritime Corporation v Trave Schiffahrtsgesellschaft mbH und Co KG [1983] 1 WLR 1412 (“The Niedersachsen”) at 1425-6 per Kerr LJ giving the judgment of the Court. That was a case where the judge had granted the plaintiff a Mareva injunction on an ex parte application and the defendant had then applied to discharge it inter partes. That was (and as far as I am aware still is) the usual practice in the Commercial Court, by contrast to the practice in the Chancery Division where it was (and again still is) the practice only to grant an ex parte or without notice injunction for a limited time until the return date, leaving it to the claimant to apply for its continuation to trial. As one would expect, this difference in practice does not make any substantive difference to the parties’ rights, as explained by Kerr LJ at 1426A-B:

“Whether the inter partes hearing takes the form of an application by the defendants to discharge the injunction, as is usual in the Commercial Court, or whether—as in the Chancery Division—the injunction is only granted for a limited time and there is then an inter partes hearing as to whether or not it should be continued, the judge must consider the whole of the evidence as it then stands in deciding whether to maintain or continue, or to discharge or vary, the order previously made.”

Again I have no difficulty with the proposition that on such an hearing – whether that is technically, as in the Chancery Division, an application to continue the injunction or, as in the Commercial Court, an application to discharge it, the same principles apply as already discussed, namely that the questions for the Court are (i) is there a serious issue to be tried on the merits, (ii) is there a real risk of dissipation, and (iii) is it just and convenient to continue or renew the injunction; and that for those purposes the Court as a matter of practice does not hear oral evidence but decides the matter on the basis of the affidavits or witness statements.

But The Niedersachsen was a case where the basis of the application by the defendant to discharge the injunction granted ex parte was that once account was taken not only of the evidence adduced by the plaintiff on the ex parte application but of the further evidence available at the inter partes hearing (namely the defendant’s evidence in answer and the plaintiff’s in reply), the fuller picture shown by the entirety of the evidence showed that the test for a Mareva was not satisfied. That is entirely standard. The Court has an undoubted jurisdiction to grant injunctions on a without notice basis and there are of course good reasons why many applications – in particular those for freezing injunctions – are made without notice to the defendant, who might, if given notice, frustrate the application by pre-empting any injunction before it could be heard. But for the Court to make orders in such a one-sided fashion offends against the general principle that one should hear both sides before deciding anything, and can only be justified as a temporary measure pending the right of the defendant to adduce its own evidence and advance its own submissions as to why the order should not be continued. The inter partes hearing is therefore the first proper opportunity – by which I mean with the benefit of evidence and submissions from both sides – for the Court to consider whether an injunction should be in place until trial and even if it takes the form, as in the Commercial Court, of an application by the defendant to discharge, the issues, and the mode of resolving them, remain the same as if the claimant had applied on notice in the first instance.

So far therefore I am in agreement with Mr Crow’s submissions. But there is also another principle which is relevant. This is that an applicant for a without notice order must make full and frank disclosure of all matters relevant to the application. The principles are well established and were not in dispute. They can be found summarised in Civil Procedure (The White Book) 2025 at §§25.8.2ff, and see also the convenient summary by Carr J in Tugushev v Orlov [2019] EWHC 2031 (Comm) at [7]. If the duty of full and frank disclosure is not observed, the Court may discharge any order obtained. This is a long-standing principle, already regarded as settled law in R v Kensington Income Tax Commissioners ex p de Polignac [1917] 1 KB 486. It applies in particular in the context of Mareva or freezing injunctions where applications without notice in the first instance are the norm: Bank Mellat v Nikpour [1985] FSR 87, Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350. Although discharge of the order is not automatic, on any non-disclosure being established of any fact known to the applicant, it would only be in exceptional circumstances that the Court would not discharge an order where there had been deliberate non-disclosure or misrepresentation: Congentra AG v Sixteen Thirteen Marine SA [2008] EWHC 1615 (Comm), [2008] 2 Ll Rep 602 at [62] per Flaux J. Such is the importance of the duty that, in the event of any substantial breach, the Court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given him. This is particularly so in the case of freezing and seizure orders: Re OJSC Ank Yugraneft [2008] EWHC 2614 at [104] per Christopher Clarke LJ.

This is a salutary principle. It deprives the wrongdoer of an advantage improperly obtained and serves as a deterrent to ensure that those who make applications without notice realise that they have this duty and the consequences if they fail: Brink’s Mat Ltd v Elcombe at 1358C-D per Balcombe LJ. The duty is owed not just to the other party but to the Court itself and exists in order to secure the integrity of the Court’s process: Re OJSC Ank Yugraneft at [104] per Christopher Clarke J.

As appears from the authorities the principle can be invoked even if the non-disclosure was entirely innocent, but it is obviously more likely that non-disclosure will lead to a discharge of an injunction (and the Court declining to impose a fresh one) where the non-disclosure is deliberate. In the present case of course the allegation goes beyond deliberate non-disclosure and is one of deliberately manufacturing false evidence – on two separate occasions – for the very purpose of deceiving the Court into finding that there was a risk of dissipation where there was otherwise no evidence to that effect, and so persuading the Court to grant a freezing injunction that could not otherwise have been obtained. If this allegation is well-founded, this is a blatant and cynical abuse of the Court’s process. It is self-evident that if the claimant has behaved as alleged then it should not be able to retain the benefit of the orders it has so obtained. Nor was that in dispute: Mr Crow accepted in terms that if the defendants’ allegations were correct, the order could not stand.

I will refer for convenience to an application to discharge an injunction on this basis (that is on the ground that the applicant failed to comply with the duty of full and frank disclosure, or, as alleged here, deceived the Court by fabricating evidence) as an application to “set aside” the injunction. Mr Crow in his submissions equated such an application to set aside an injunction with an “ordinary” application to discharge an injunction of the type exemplified by The Niedersachsen. He said that the question was the same in both: was there a sufficient risk of dissipation? That, on the basis of the authorities from Derby v Weldon onwards, was to be decided without oral evidence. But here, he said, the effect of the judge’s order was that “you are doing exactly what the court has said you should not do because you are conducting a trial to establish whether it is more likely than not that there is going to be dissipation.”

But I think this wrongly conflates two different things. In a case like The Niedersachsen, as I have sought to explain, the application to discharge is in truth simply a hearing on notice of the question whether the evidence discloses a suitable case for there to be an injunction to trial. For that purpose the issues are whether the claimant has shown a sufficient case on the merits (now equated with a serious case to be tried) and a real risk of dissipation; and whether it is overall just and convenient to make the order. But on an application to set aside for failing to make full and frank disclosure or for deceiving the Court, the issues are different. The question is whether the applicant has failed to disclose facts which are material, or has misled the Court by fabricating evidence or otherwise; and if so whether the conduct is such that the Court should set the order aside (and not renew it). The purpose of the hearing is not, as Mr Crow suggested, to determine whether it is more likely than not that there is going to be dissipation; nor is it whether there is in truth a risk of dissipation. The purpose of the hearing is to determine whether the claimant acted as alleged. In a case like the present where the only evidence that there was a risk of dissipation is the impugned evidence, it is no doubt the case that if the defendant establishes that the claimant made that evidence up, he will also in fact establish that there is no evidence of a risk of dissipation. That however will be a consequence of showing the evidence to be fabricated. It is not the issue to be decided.

That this is so must logically be the case as it is well established that the Court may, and often will, set aside (and not renew) an order obtained in breach of the duty of full and frank disclosure even if the evidence otherwise does demonstrate a sufficient case for the grant of an injunction. See The White Book 2025 at §25.8.3: “The court may discharge the injunction even if after full inquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure”. See also Tugushev v Orlov at [7(xi)]. That demonstrates that the issue on an application to set aside cannot simply be whether there is a sufficient case on the merits or sufficient evidence of the risk of dissipation, but is the separate question whether there has been material non-disclosure, or active deception. If there has, the order is liable to be set aside whatever the strength of the case on the merits, or the cogency of the evidence of risk of dissipation.

In my judgement therefore an application to set aside for non-disclosure or for deception of the Court is not of the same character as an “ordinary” application to discharge. In saying this I do not think I am saying anything new. Indeed in the course of preparing this judgment I came across a statement by Hobhouse LJ to similar effect in a decision of this Court, Kuwait Oil Tanker Company v Albania (27 November 1995). It appears to be unreported but extracts from Hobhouse LJ’s judgment are cited in the judgment of Jacob J in OMV Supply and Trading AG v Clarke (1999) CLY 435 (“OMV”), as follows:

“Where an ex parte order has been made a party aggrieved by that order may apply inter partes to have the order set aside. He can make that application simply on the material that was before the court on the ex parte application. The court on the inter partes hearing has to consider the matters afresh and may arrive at a different conclusion. Alternatively, application to set aside may be made with the support of additional evidence or material placed before the court on the inter partes hearing. Here again, if the court concludes, having considered all the material including the new material and all the arguments placed before it, that the order should not be made, the order will be discharged. Thus far, what happened on the inter partes hearing was the decision on the merits of the application for the relevant order. If the order is not one which should, on the merits, be made then it will be set aside. If however the result of the inter partes hearing, and the consideration of the totality of the material before the court is that the order is the appropriate one on the merits the party aggrieved may be able to make an application that the order be set aside on the grounds of non-disclosure. This is an application of a different character which relates to the need to preserve the integrity of judicial procedure.”

That was not cited to us but seems to me to draw the same distinction that I have sought to draw above between what I have called an ordinary application to discharge on the grounds that the order should not be made on its merits, and what I have called an application to set aside for non-disclosure or deception which is an application “of a different character”.

If this is right then I think it follows that Mr Crow is wrong in his submission that the present case is governed by the principle that he derived from Derby v Weldon and subsequent cases. The question is not how the Court resolves the issues on an application for the grant or discharge of an injunction on the merits. The question is how the Court should resolve the issue whether there has been material non-disclosure or active deception of the Court, and the answer to that question is not necessarily the same as the issues are different.

So how should such an issue be resolved? I think that it all depends on the circumstances and that no single answer can be given to this question. In many cases of alleged non-disclosure or deception, the facts are not substantially in dispute. It is often possible for a defendant to show that some fact was known to the claimant but not disclosed. The argument will then be over such matters as whether the undisclosed fact was material or not, whether non-disclosure was deliberate, and what the Court should do in all the circumstances. Such matters may well not require any oral evidence to resolve, and the Court will proceed to determine them on written evidence. In such a case there is usually no need to defer consideration of the question until trial.

But in other cases, of which the present is a prime example, it is impossible to decide on written evidence alone where the truth lies, and the Court can only safely do so by hearing oral evidence and cross-examination. Mr Crow accepted that in the present case the question was not whether a hearing with oral evidence and cross-examination was required – he agreed that it undoubtedly was – but when it should be held.

This seems to me to be a classic instance of competing considerations. On the one hand I think there is some force in the suggestion that once such an issue has been raised, the Court should, if it conveniently can, decide it sooner rather than later. It is well known that freezing injunctions can make life very difficult for defendants, particularly if they are individuals: see for example Jacob J in OMV where he cites from a previous unreported decision of his own, Alliance Resources plc v O’Brien (8 December 1995), in which he refers to the “devastation caused by the hydrogen bomb of a Mareva”. It is true that the Court does what it can to protect defendants against the possibility that an injunction has been wrongly granted by requiring the claimant to give a cross-undertaking in damages, but it is in truth scant consolation to a wrongly restrained defendant to be told that at the end of the day, if they ever get that far, they might be compensated. If the claimant has indeed obtained an order in breach of the duty of full and frank disclosure, or a fortiori deceived the Court by putting forward fabricated evidence, then the argument that it should in principle be deprived of the benefit of its misconduct as soon as it can, rather than leave it to enjoy the benefit of an order so obtained, has an obvious attraction. This is not least because the duty of full and frank disclosure and the duty not to mislead the Court are owed to the Court itself, and the Court has its own interest in seeing that its processes are not abused, and if they are, in depriving those responsible of any advantage so obtained.

But there are undoubtedly considerations the other way. As the present case illustrates it is all too easy for what seems like a short and self-contained point to expand until it becomes a substantial hearing with large numbers of witnesses. The Court has often deprecated satellite litigation and there is a real question whether it is the best use of the parties’ – or the Court’s – resources to hold what is in effect a significant separate trial (which may, in order to be fair, require pleadings and disclosure of its own) to decide what is, even if important, a collateral issue.

In these circumstances I think it must depend on what is the most convenient course in the circumstances of any particular case – by which I mean what is most in accordance with the overriding objective. I do not accept that there is some default principle under which it is always or even prima facie more convenient to have such matters determined at or after the main trial. The Court admittedly does not usually hear oral evidence or permit cross-examination at an interlocutory stage but that is because it is not normally necessary to do so. But where it is necessary, then the Court has ample power to do so. A defendant for example can be cross-examined on the adequacy of his disclosure of assets. There may be a committal application for breaches of orders in which cross-examination of the applicant’s witnesses (and also of the respondent if they choose to give evidence in their defence) is standard. There is nothing to say that such applications have to await the main trial – it depends on what is most just and convenient in all the circumstances.

In practice I think the most significant consideration is likely to be the extent to which the issues overlap with or trespass on the issues for the trial. If they do, then that is likely to be a very good reason why it is more convenient to stand the application over to be heard at or after the trial. In Kazakhstan Kagazy plc v Arip [2014] EWCA Civ 381 this Court followed the approach suggested by Toulson J in Crown Resources AG v Vinogradsky (15th June 2001) for cases of any magnitude and complexity (see at [36] per Longmore LJ). This was as follows:

“Speaking in general terms, it is inappropriate to seek to set aside a freezing order for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself.”

But that depends on the question whether there is in fact an overlap and in the present appeal is the subject of Ground 2 of the appeal. It is not by itself a reason for a general principle such as Mr Crow argues for under Ground 1.

That can be illustrated by assuming a case in which the application to set aside turns on a discrete point that is quite distinct from the issues for trial. Suppose for example a crucial document relied on by the claimant is alleged to have been fabricated and resolution of the issue turns on a short point on which there is a conflict of expert evidence, and that the point will not recur at trial. I see no reason in principle why resolution of that issue should have to await the trial or why the Court should not direct a hearing of that application as soon as it can conveniently be arranged, even if that involves cross-examination of the experts. Indeed, as I have said, I think that there is some force in the point that issues of this sort, once raised, should where possible be decided sooner rather than later because if the allegation is well-founded the claimant should be deprived of the benefit of the order as soon as that can properly be done. Of course there are cases, of which an Anton Piller, or search and seizure, order is a good example, where the effect of the order is spent once it has been executed (see again per Jacob J in OMV referring to the Anton Piller order as involving “a severe invasion of privacy but once executed, it is by and large over”) and it may make sense to put off the question whether it was properly obtained or executed until trial. But where an order has a continuing effect, as a freezing order does, the defendant has a legitimate interest in having it set aside as soon as possible.

For the reasons I have given therefore I do not accept Ground 1 of the appeal and would dismiss the appeal on this ground.

That brings me to Ground 2. I have already said that the most significant consideration is whether the issues on the application to set aside are likely to overlap or trespass with those in the main trial. The judge said there was a limited overlap. But I am persuaded by Mr Crow that this does not withstand the detailed scrutiny to which he subjected it on appeal. The reasons are given by Arnold LJ at paragraphs 132 to 138 above, and it is not necessary for me to repeat them. In short, the resolution of the set aside issue is likely to turn almost entirely on questions of credibility; and that cannot be divorced from the question whether Mr Holloway was indeed complicit in the use of the quarry for illegal dumping. But that is the very question at the heart of the main trial. That question should be decided once at trial with all relevant material deployed; it should not be decided twice, once at trial and once at a pre-trial hearing on partial evidence.

In those circumstances I think this is sufficient by itself to mean that Ground 2 of the appeal is made out. It is not obvious to me that in the absence of this overlap the other criticisms of the judgment would have sufficed to disturb the judge’s decision, but I have not thought it necessary to pursue this question.

I therefore agree with Arnold LJ that the appeal should be allowed on this ground, and that Mr Holloway’s application to set aside (and Mr Jacques’) should be directed to be heard together with the trial of Mold’s claim.

On Ground 3 and the Respondent’s notice I agree with Arnold LJ and have nothing to add.

I agree with Arnold LJ and Nugee LJ that the appeal should be allowed on Ground 2 but not on Ground 1. I also agree with Arnold LJ’s observations on Ground 3 and the Respondent’s Notice.

As I read their judgments, there is a difference between Arnold LJ and Nugee LJ on one aspect of Ground 1. That difference flows from their analysis of the judgment of Parker LJ in Derby v Weldon [1990] Ch 48, and in particular his comment at page 58 that,

“What, however, should not be allowed is (1) any attempt to persuade a court to resolve disputed questions of fact whether relating to the merits of the underlying claim in respect of which a Mareva is sought or relating to the elements of the Mareva jurisdiction such as that of dissipation or (2) detailed argument on difficult points of law on which the claim of either party may ultimately depend.”

At [114] above, Arnold LJ does not accept that this is an absolute or inflexible rule. He takes the view that there may be cases in which, even if a fact critical to the obtaining of a freezing order or other interim relief is disputed so as to require cross-examination, it can be determined in advance of trial in a manner which is both proportionate and avoids the risks of taking that course.

In contrast, at [147] Nugee LJ takes the view that it is no part of the Court’s function on an application for a freezing injunction to seek to resolve disputed issues of fact, whether they go to the merits of the substantive claim, or to the risk of dissipation, He therefore accepts the second of Mr Crow KC’s propositionsso far as concerns the grant of an injunction, namely that it is “wrong in principle” to direct a trial for the purpose of determining, on the balance of probabilities, whether a defendant actually does intend to dissipate his assets.

On this issue, like Arnold LJ, I would not accept Mr Crow KC’s second proposition in the absolute terms in which it was stated.

In order to explain why that is so, it is necessary to put the relevant passage from Parker LJ’s judgment in Derby v Weldon into context. Parker LJ said, at 57-58,

“[On an application for a Mareva injunction] there are in essence only three issues; (i) has the plaintiff a good arguable case; (ii) has the plaintiff satisfied the court that there are assets within and, where an extraterritorial order is sought, without the jurisdiction; and (iii) is there a real risk of dissipation or secretion of assets so as to render any judgment which the plaintiff may obtain nugatory. Such matters should be decided on comparatively brief evidence. In American Cyanamid Co v Ethicon Ltd [1975] AC 396, 407-408, Lord Diplock, dealing in that case with an application for an interlocutory injunction, said:

“It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that 'it aided the court in doing that which was its great object, viz. abstaining from expressing any opinion upon the merits of the case until the hearing': Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628, 629.”

…

In the present case this seems to have been forgotten. It was not until the eighteenth day of the hearing before the judge that the defendants accepted that there was a good arguable case which, unless the many conflicts on the affidavit evidence are resolved in the defendants’ favour, there plainly is. Moreover, the defendants sought to go into and obtain the court’s view on questions of law, which the argument before us and the judgment of the judge show clearly to be questions calling for detailed argument and mature consideration. This is quite wrong….

Mr. Heslop for the defendants has however sought to go yet again into large parts of the evidence in order to persuade us that the judge's finding that there is a high risk of dissipation of assets both here and overseas should be reversed in respect of overseas assets. In essence he sought to persuade us to attempt to resolve conflicts of fact going to the merits of the claim but which were also important on the question of risk of dissipation. This is no part of this court's function any more than it is the function of the court at first instance. He also sought to show that the plaintiffs in the present case have no proprietary claim. His submissions in this behalf depended on the resolution both of disputed, detailed and complex fact and of difficult questions of law requiring mature consideration. The function of this court is again misappreciated.

It is to be hoped that in future the observations of Lord Diplock and Lord Templeman will be borne in mind in applications for a Mareva injunction, that they will take hours not days and that appeals will be rare. I do not mean by the foregoing to indicate that argument as to the principles applying to the grant of a Mareva injunction should not be fully argued. With a developing jurisdiction it is inevitable and desirable that they should be. What, however, should not be allowed is (1) any attempt to persuade a court to resolve disputed questions of fact whether relating to the merits of the underlying claim in respect of which a Mareva is sought or relating to the elements of the Mareva jurisdiction such as that of dissipation or (2) detailed argument on difficult points of law on which the claim of either party may ultimately depend. If such attempts are made they can and should be discouraged by appropriate orders as to costs.”

(my emphasis)

I have emphasised the critical sentence from Parker LJ’s judgment which makes it clear that his observations were made in the context of a case in which the same disputed conflicts of fact went both to the question of good arguable case and to the risk of dissipation.

I fully accept that, as Lord Diplock indicated in American Cyanamid, a court hearing an application for an interim injunction should not attempt to resolve disputes of fact upon which the case of either side depends, since those matters will be for determination at the trial. I also accept that where those same issues are relied upon to support the allegation on a Mareva injunction that there is a risk of dissipation, the decision in Derby v Weldon is to the effect that the court should not attempt to resolve them on an interim basis. That might frequently be the case with Mareva injunctions, since claimants often seek to rely on the same allegations of dishonesty or egregious misconduct that gives rise to their cause of action, to support an argument that the defendant is the type of person likely to take improper steps to frustrate enforcement of any future judgment against them.

But that will not always be the case. I agree with Arnold LJ that there may be cases in which the evidence said to demonstrate a risk of dissipation, although disputed, may be sufficiently unrelated to the underlying causes of action, that it may be possible for the court to resolve those disputed issues without trespassing on, or prejudicing the fair determination of, the issues for trial. In such a case, given the potentially burdensome nature of a Mareva injunction and the disclosure orders that usually accompany it, if such an injunction was shown to have a significant impact upon the defendant and was alleged to have been based on entirely unrelated evidence fabricated for the purpose, I can well see that it might be necessary in the interests of justice for the Court to resolve those issues in advance of the main trial.

That said, for the reasons which Arnold LJ has explained, the instant case does not fall into that category. The issues of alleged fabrication of the evidence relied upon to support the injunctions granted in this case are inseparably intertwined with the issues for trial and it would be impossible to resolve them appropriately without trespassing upon the matters for trial. I therefore agreed that the appeal should be allowed on Ground 2.