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

On 6 December 2024 Mr Holloway applied to set aside the Freezing Order and its extension. It is this application which led to the order under appeal. The application notice requested that the application be dealt with at a hearing estimated at five days. The application notice did not set out the grounds of the application, but the draft order attached to it sought declarations that:

“1.

On the balance of probabilities:

a.

[The screenshots of the WhatsApp Messages] are forgeries;

b.

[Mr Holloway] did not exchange WhatsApp messages with Jeremy Hazlehurst as alleged in the affidavit of Jeremy Hazlehurst dated 7 August 2023;

c.

[Mr Holloway] and Mrs Vicky Holloway did not send the communications referred to as ‘the Malicious Communications’…;

d.

The said Malicious Communications were in fact concocted by or at the instigation of Sean O’Grady for the purpose of putting false evidence before the Court.

2.

[Mold] failed to comply with its duties of fair presentation and full and frank disclosure in connection with the without notice applications (i) heard by Mellor J on 9 August 2023 and (ii) heard by Richard Smith J on 5 January 2024 in the following respects:

a.

The reliance upon false evidence as set out in paragraph 1 above;

b.

The failure to draw the attention of Mellor J to the fact that no metadata existed in relation to [the WhatsApp Messages];

c.

The failure to inform Mellor J and Richard Smith J that [Mold] had on 2 March 2023 transferred investment properties valued in its accounts at £700,000 to a company then called RJS Civil Engineering Limited;

d.

The failure to inform Richard Smith J that the methodology adopted in the report prepared by MDR Cyber … was flawed and that such methodology was the subject of criticism by the Court of Appeal in R v Sean Thomas Calland [2017] EWCA Crim 2308 (Crim).”

The only substantive orders sought in the draft order were that the Freezing Order as varied from time and time, including in particular by the order dated 5 January 2024, be set aside and that Mold pay Mr Holloway’s costs of and occasioned by the Freezing Order on the indemnity basis. No order was sought for an inquiry as to the damage suffered by Mr Holloway pursuant to Mold’s cross-undertakings in the various orders.

The application was supported by an affidavit sworn by Mr Holloway, his seventh. This is an important document, and it is therefore necessary to describe its contents in a little detail. It runs to 126 paragraphs over 28 pages, and it is accompanied by one exhibit containing 40 documents totalling 212 pages as well as two other exhibits consisting of copies of (the original versions of) Ms Crane’s and Ms Dainty’s reports. After an introduction (paragraphs 1-7), Mr Holloway states (in paragraph 8) that he is making the affidavit in support of his application to discharge the Freezing Order as extended, for permission to cross-examine Mr Hazlehurst and Mr O’Grady and for an order that Mold pays his costs on the indemnity basis. He does not state that he is seeking an inquiry as to damages.

Mr Holloway then sets out a summary of the grounds on which he relies (paragraphs 9-13), explaining that it is his case that the screenshots of the WhatsApp Messages and the Malicious Communications were fabricated by or behalf of Mold, its officers or agents with a view to putting perjured evidence before the Court in order to obtain the Freezing Order and its extension and that Mold and its officers and agents had thereby perverted the course of justice. He also asks for permission to rely on expert evidence.

The next section of Mr Holloway’s affidavit (paragraphs 14-57) is headed “Background to this Application”. Mr Holloway begins by explaining that on 20 June 2023 a notice of trial date had been issued in the Leeds Proceedings, that Mold had applied for the Freezing Order six weeks later and that he believes that the two events were connected. He then explains the background to JHHL’s claim in the Leeds Proceedings. In summary, he was asked in early 2015 if he would be interested in going into business with Mr Taylor and Mr Jacques operating the Quarry. Mr Holloway was to be a non-executive director. Mr Taylor would run the business, but would not be appointed a director because he had been disqualified. Mr Jacques was to contribute about £2 million to the purchase of the Quarry, while JHHL would contribute £1 million as a loan. Mold was set up to buy the Quarry. In 2016 Mr Taylor introduced Mr Hughes to Mold. Mr Taylor told Mr Holloway that Mr Hughes had lent £3.2 million to Mold. Mr Holloway was told by Mr Jacques and Mr Taylor that the day-to-day running of the Quarry was managed by Mr Amos.

In 2019 Mr Holloway was told by Mr Jacques and Mr Taylor that Mr Hughes had decided to shut the Quarry. In early 2020 Mr Hughes offered to give JHHL its £1 million back and to pay Mr Jacques £3 million for his shares in Mold. Mr Hughes said that, if Mr Jacques and Mr Taylor attempted to re-open the Quarry, he would burn down all of the plant and machinery on site. In June 2020 Mr Jacques and Mr Holloway decided to re-open the Quarry with Mr Amos being responsible for day-to-day operations. JHHL lent Mold money from time to time to keep it going. Within a week, some of the plant and equipment had been set on fire. Mr Jacques’ wife’s car had also been set on fire and a shotgun had been found at the end of the drive to Mr Jacques’ house. Mr Holloway believed that Mr Hughes had made good on his threat. In July 2020 Mr Hughes demanded repayment of his £3.2 million loan, but took no further action.

In February 2021 Mr Taylor called Mr Holloway to a meeting with himself, Mr Jacques and three others. At the meeting Mr Taylor said that he was going to take over the running of the Quarry and made various financial proposals. In May 2021 Mr Taylor sacked Mr Amos. In October 2021 Mr Taylor called Mr Holloway to meeting with himself, Mr Jacques, Mr O’Grady and four others. Mr Holloway was offered a deal which he rejected. On 21 November 2021 Mr Holloway telephoned Mr O’Grady about this deal. Heated words were exchanged, and Mr O’Grady threatened to set fire to Mr Holloway’s house and have his kneecaps or legs broken. On 29 November 2021 documents were filed at Companies House that purported to remove Mr Holloway and Mr Jacques as directors of Mold and to appoint Mr O’Grady a director. Mr Holloway suggests that the removal of himself and Mr Jacques and the appointment of Mr O’Grady was irregular. Between 11 October and 21 December 2021 Mr Holloway received a number of calls from Mr O’Grady, but ended up blocking his number. During one of these calls Mr O’Grady said that, if charges which JHHL had registered over Mold’s assets as security for its loan were not removed, Mr Holloway would not live to regret the day. On 21 December 2021 Mr O’Grady called Mr Holloway. Mr O’Grady said that Mr Hughes had put £3 million into Mold and Mr Holloway was causing Mr Hughes to lose that money. Mr O’Grady said that he and Mr Hughes would make sure that Mr Holloway never forgot about the matter and that Mr Holloway would have to look over his shoulder for the rest of his life as he would never know when someone would come to finish him off. Mr O’Grady also threatened Mr Holloway’s wife and children. Mr Holloway reported these threats to the police the same day.

On 6 January 2022 JHHL’s solicitors wrote to Mold demanding repayment of the balance of JHHL’s loan of £954,990. This was followed by the Administration Proceedings. The solicitors withdrew from the case following an arson attack on their offices on 12 February 2022. Mold’s accountants suffered a similar attack on 18 December 2021. Mr Holloway believes that both incidents are linked to Mold and its officers. On 20 February 2022 three windows of Mr Holloway’s house were smashed and Mr Holloway found a petrol can outside. Mr Holloway believes this incident to be connected with the threats previously made by Mr O’Grady. He reported it to the police. Mr Holloway also makes allegations concerning a sum of £875,000 said to have been paid to Mold by Mr Hughes which featured in the Administration Proceedings. Finally, he outlines the chronology of the Leeds Proceedings which JHHL commenced on 2 November 2022.

In the next section of his affidavit (paragraphs 58-82) Mr Holloway describes the service of the Freezing Order upon him and subsequent events. Mr Holloway repeats and enlarges upon the account given in his second affidavit concerning the background to his application for the Imaging Order. He exhibits a witness statement of Chris Collier of MD5 made on 11 August 2023 confirming that MD5 had taken possession of Mr Holloway’s phone that day. He says that the account given by Mr Hazlehurst in his second affidavit is incredible, not least because part of it is contradicted by the report prepared by Mr Williams (the supervising solicitor), which makes it clear that Mr Hazlehurst was told that he was required to hand over the phone used to send and receive the WhatsApp Messages. He says that one of the documents provided by Mr Hazlehurst to Mr Williams to prove his identity was his driving licence. When Mr Holloway received a copy of this, he immediately recognised Mr Hazlehurst as one of two men who attended his house in the early hours of 21 June 2022, Mr Holloway believes with the intention of recovering a car whose return Mr O’Grady had demanded. Mr Holloway refers to photographs found online showing Guilio Gallina (a friend of Mr O’Grady who made a witness statement for Mold in the Leeds Proceedings) with Mr Davies. Mr Holloway also says that he believes Mr Hazlehurst to be the person caught on CCTV who was responsible for the attempted arson attack on his home on 20 February 2022.

In the next section of his affidavit (paragraphs 83-87) Mr Holloway explains about the replacement of CYFOR by CCL and says that Ms Crane’s report, which he exhibits, shows that no WhatsApp messages exchanged with Mr Hazlehurst had been found on Mr Holloway’s phone, nor had any messages which could have been the WhatsApp Messages been deleted.

In the next section of his affidavit (paragraphs 88-115) Mr Holloway discusses the Malicious Communications. He draws attention to a caveat attached by Vodafone to the data analysed in the MDR Cyber Report and says that Ms Dainty’s report, which he exhibits, shows that it is not safe to rely upon the Vodafone data. He goes on to give an account of the whereabouts of himself and his wife at the dates and times when the Malicious Communications were sent, seeking to show that in several cases they were not present in the relevant locations at the relevant times. In one case he says that he and his family were at a pub called The White Swan. In another case he says that he, his wife and his brother were with a friend called Adrian Bicker at another pub.

In the next section of his affidavit (paragraphs 116-123) Mr Holloway makes allegations of breaches of Mold’s duty of fair presentation at the hearings on 9 August 2023 and 5 January 2024. In the final section (paragraphs 124-126) Mr Holloway says that the application has taken longer to finalise than hoped and is not a tactical attempt to derail Mold’s committal application, and that evidence of fact is in the course of being obtained from a number of witnesses. He concludes by repeating the relief he seeks. Again, there is no request for an inquiry as to damages on the cross-undertaking. Consistently with that absence, Mr Holloway says nothing about any losses he claims to have sustained as a result of the Freezing Order and its extension.

Despite the fact that, as Mr Holloway’s affidavit made clear, Mr Holloway sought permission to cross-examine Mr Hazlehurst if Mold continued to rely upon his evidence, the application was not served on Mr Hazlehurst.

On 6 February 2025 Mr O’Grady made an affidavit, his third, in reply to Mr Holloway’s seventh affidavit. Mr O’Grady completely rejected Mr Holloway’s allegations that the screenshots of the WhatsApp Messages and the Malicious Communications had been forged and said that he believed them to be genuine. He said that the CYFOR report raised serious questions concerning deletions of data found on Mr Holloway’s phone and that Mold has instructed Kroll (in the persons of Nick Ellison and Thomas Bailey) to produce a report in response to Ms Crane’s report, which he exhibited. He also said that he recalled seeing Mr Holloway using two mobile devices during the hearing in Birmingham on 27 November 2023. He also referred to the fact that call records disclosed by Mr Jacques for the period 25 to 28 July 2023 did not show any calls with Mr Holloway, whereas call logs disclosed by Mr Holloway revealed that Mr Holloway had called Mr Jacques on 26 July 2023. As for the Malicious Communications, Mold had instructed Greg Robinson of Footprint Investigations to produce a report in response to Ms Dainty’s report, which he exhibited, and which he said supported Mold’s case that the Malicious Communications were made from the addresses where Mr and Mrs Holloway and Mr Jacques lived or worked.

Section 6 of Mr O’Grady’s affidavit gave an initial response to the section of Mr Holloway’s seventh affidavit setting out the background to the matter. Mr O’Grady denied making threats of violence against Mr Holloway or others and denied involvement in any of the incidents alleged by Mr Holloway. He noted that Mr Jacques and his partner had been charged with conspiracy to commit aggravated arson and conspiracy to blackmail. He said that Mr Holloway and Mr Jacques had a history of making allegations against others to deflect blame from themselves. He said that this was exemplified by messages exchanged by Mr Holloway, Mr Jacques and Mr Taylor as part of the Mold WhatsApp Group in which, he said, they agreed to blame Mr Amos and a Mold employee called Ian Greaves for the illegal tipping at the Quarry. Mr O’Grady cast doubt on Mr Holloway’s identification of Mr Hazlehurst as the person responsible for the alleged attempted arson attack on 20 February 2022 and one of those involved in the incident on 21 June 2022.

On 17 February 2025 Mr Holloway served further evidence in support of his application: (i) a witness statement made by Deborah Webb (manager of The White Swan) on 15 March 2024; (ii) a witness statement made by Mr Bicker on 15 March 2024; (iii) a witness statement made by Mr Williams on 17 November 2024 exhibiting reports dated 4 September 2023 and 12 October 2023; (iv) a witness statement made by Vicky Holloway on 14 February 2025; and (v) a witness statement made by Tracy Mansfield (Mr Holloway’s sister-in-law) on 14 February 2025.

On 20 February 2025 Mr Holloway swore an affidavit, his eighth, in reply to Mr O’Grady’s third affidavit and Mr Hazlehurst’s second affidavit. Among other things, Mr Holloway exhibited a recording of a phone conversation with Mr O’Grady said to have been made in February 2022.