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

On 4 January 2024 Mold applied without notice for the Freezing Order to be extended so as to cover the assets of certain companies in which Mr Holloway and Mr Jacques are interested, including JHHL. The application was supported by a second affidavit sworn by Mr Whelan based on instructions from Mr O’Grady. In this affidavit Mr Whelan repeated what he said about the Malicious Communications in his witness statement against Vodafone, and exhibited and summarised the MDR Cyber Report. He also said that, on 26 December 2023, Mr O’Grady had been confronted by an unknown individual who threatened Mr O’Grady with violence unless he pulled out of the case (“the Boxing Day Incident”). Although he had reported the matter to the police, Mr O’Grady was so concerned by the Boxing Day Incident that he left the UK the following day (and did not return until 2 March 2024). In the full and frank disclosure section of his affidavit Mr Whelan disclosed that Mr Holloway and Mr Jacques had alleged that the WhatsApp Messages were forgeries, but stated that Mold was not aware of any evidence that that was the case. In that context he noted that, although Mr Hazlehurst’s phone had been imaged, no application for permission to analyse the data had yet been made by Mr Holloway. It is evident that Mr Whelan was not then aware that the phone delivered up by Mr Hazlehurst was not the one he had been using on 26 July 2023.

On 5 January 2024 Richard Smith J heard Mold’s application and made the order sought.

Mold subsequently served an approved draft affidavit of Mr O’Grady confirming his instructions to Mr Whelan. By the time that Mr O’Grady came to swear the affidavit on 23 February 2024 the last paragraph was out of date and so he omitted it. On 11 March 2024 Mr O’Grady swore a second affidavit correcting his first affidavit: he said that the court hearing referred to in the 6 December 2023 message had not been in Leeds that day as he stated in the first affidavit, but in Birmingham on 27 November 2023. (As noted above, Mr Whelan had said that the hearing in question was in Birmingham on 6 December 2023.)

On 19 January 2024 Bacon J made an order by consent continuing and further varying the Freezing Order as extended on 5 January 2024, and directing Mold to allow Mr Holloway to inspect or take copies of the Vodafone data upon provision of an undertaking. That undertaking was not provided by Mr Holloway until 28 March 2024.