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

On 20 March 2024 Mr Jacques made an application to set aside the Freezing Order as extended and the Bankers’ Books Order. As part of this application Mr Jacques applied for an order permitting cross-examination of Mr Whelan, Mr O’Grady and Mr Hazlehurst, and providing for expert evidence.

In an affidavit sworn in support of this application, his fourth, Mr Jacques said that “[t]his litigation arises out of a bitter campaign of hatred perpetrated by Mr Hughes and Mr O’Grady against me, Mr Holloway and others associated with us”. He went on to say that he knew that the evidence relied by Mold to obtain the Freezing Order and its extension had been fabricated. He repeated that he did not know Mr Hazlehurst and not been involved in the WhatsApp Messages. He said that, at the time he was supposed to be exchanging messages with Mr Hazlehurst, he was fuelling a lorry wearing large gloves and exhibited CCTV footage which he said confirmed this. He raised certain questions about Mr Hazlehurst’s affidavit. He denied the allegations made by Mr Davies, who he claimed was a long-standing friend of Mr O’Grady’s. He said that, on 29 July 2023, he had been arrested by police on an allegation of raping a former girlfriend. “Clearly”, he said, “the date is no coincidence”. The police had taken his mobile phone and retained it until 16 February 2024. In about late July 2023 he had ordered a replacement sim card which he put into a replacement phone. His partner had downloaded his contacts and data from the cloud, but this data did not include the period up to 26 July 2023 and hence the data for that date had been lost. The phone returned by the police was “now blank”. He claimed that Mr O’Grady had admitted manipulating a screenshot of a bank statement during the Administration Proceedings. He denied any involvement in the Malicious Communications. He challenged Mr O’Grady’s account of the Boxing Day Incident, suggesting among other things that Mr O’Grady had taken two weeks to report the alleged incident to the police. He returned to the subject of the “long-running feud” between himself and Mr O’Grady and Mr Hughes, and in particular Mr Hughes. The last time he had seen Mr Hughes was on 27 May 2020 when the latter was angry, threatening and abusive. Since then there had been a number of incidents which he believed were related to this, including a series of arson attacks in the period between 2 June 2020 and 12 February 2022. Finally, he challenged the reliability of the MDR Cyber Report.

The application notice was served on Mr Hazlehurst as well as on Mold. Following service of that application, on 19 April 2024, Mr Hazlehurst’s solicitors disclosed that the mobile phone he had been using at the time of the WhatsApp Messages on 26 July 2023 had been broken by his young daughter while he was on holiday between 7 and 11 August 2023.

On 18 April 2024 Mr O’Grady made a witness statement, his second in these proceedings, in opposition to Mr Jacques’ application. He explained that he had known Mr Hazlehurst for a few years. They had done some business together, but were not friends. He had met Mr Hazlehurst through Ian Collier. He had known Mr Collier for about 15 years. Again, they had done some business together, but were not friends. The first that Mr O’Grady knew that Mr Hazlehurst had “tipped off” Mr Holloway and Mr Jacques was when he was called by Mr Collier. Mr Collier had spoken to Mr Hazlehurst, who had told Mr Collier about tipping off Mr Holloway and Mr Jacques. Mr Collier had told Mr Hazlehurst that Mr Hazlehurst was helping the wrong people. Mr Hazlehurst had agreed to share the screenshots of the WhatsApp Messages with Mr O’Grady. Shortly after this call, Mr Collier sent copies of the screenshots to Mr O’Grady. Mr O’Grady immediately sent them to Mr Whelan. Although Mr O’Grady could not recall the exact date of the telephone call from Mr Collier, he believed that it was on 3 August 2023. Mr O’Grady’s phone had been stolen on 12 September 2023, a crime he had reported to the police the same day. Mr O’Grady did not have any data on his current phone from that time, and in any event he had used the “disappearing messages” function in many of his chats on WhatsApp. Mr O’Grady had not received any request from Mr Jacques for disclosure from his mobile phone relating to the Malicious Communications, but it had been imaged by Mold’s solicitors. Mr O’Grady confirmed that Mr Davies was a friend of his. He disputed that he had manipulated a screenshot as alleged by Mr Jacques, saying that what he had done was openly to demonstrate how a bank account name could be changed using an online banking application. As for the Boxing Day Incident, his solicitors had reported this matter to the police on 29 December 2023 and he had formally done so himself on 11 January 2024. He disclosed that Mold was paying Mr Hazlehurst’s legal costs.

On 12 May 2024 Mr Hazlehurst made a witness statement in response to both Mr Holloway’s application for permission to search the data from the image of his mobile phone and Mr Jacques’ application to set aside the Freezing Order and its extension. Mr Hazlehurst said that he had known Mr Collier for roughly two years. In mid to late July 2023 he had met Mr Collier while working together on a job. Mr Collier told him about Mold’s intended claim against Mr Holloway and Mr Jacques. He decided to share the information with Mr Holloway and Mr Jacques “as they had previously helped me out by allowing me to tip at [the] Quarry”. He therefore sent them his side of the WhatsApp Messages. He could not recall when or how he had obtained their numbers. He had taken screenshots of the WhatsApp Messages sometime between 26 July and 2 August 2023. He could not recall exactly why, but it was probably because he wanted to keep a record and knew that he had the “disappearing messages” function activated for all his chats on WhatsApp. Shortly after the WhatsApp Messages he had spoken to Mr Collier and told him what he had done. Mr Collier said that he should not have done this because Mr Holloway and Mr Jacques were in the wrong. Mr Hazlehurst agreed to inform Mold about the WhatsApp Messages, and for this purpose Mr Collier sent him the contact details of a solicitor at Rosenblatt. Mr Hazlehurst sent the screenshots to Rosenblatt on 3 August 2023 and subsequently made his affidavit. Between 7 and 11 August 2023 he went on holiday with his partner and their two young children at a holiday park in North Wales. On the first or second day their 18 month-old daughter threw his phone beside the pool. This smashed the screen, and the phone was already in a poor state. He had an arrangement with the company he was contracted to for it to pay for his phone, so he asked it to replace the phone. It authorised him to buy two new phones, one for himself and one for another contractor whose phone also needed replacing. He did so on 8 August 2023, and received reimbursement subsequently. He received the replacement phone on 14 August 2023. He had not retained any backup of the old phone, and set up the replacement phone as a new device. He disposed of the broken phone.

The first Mr Hazlehurst knew about the Imaging Order was when he received a message from Mr Holloway’s solicitors on 30 August 2023 with a copy of Leech J’s order. Mr Hazlehurst agreed to meet with representatives of CYFOR and Mr Williams on 14 September 2023. Mr Hazlehurst was unable to obtain legal advice in advance of the meeting due to the expense. At the meeting he handed over his current phone. He was not asked any questions about it, such as whether it was the device used to send and receive the WhatsApp Messages. The imaging process took two-three hours. After that Mr Hazlehurst had not thought about the matter any further until after receipt of Mr Holloway’s and Mr Jacques’ applications. Mr Hazlehurst denied the allegation that the WhatsApp Messages were fabricated, saying that he was shocked by the allegation since he had no interest in the proceedings and so had no reason to make things up. He also lacked the technical ability to do so. He had discussed the applications with Mr Collier and explained that he could not afford legal advice. Mr Collier spoke to Mr O’Grady, which led to Mold agreeing to pay Mr Hazlehurst’s legal costs. This enabled him to instruct solicitors on 15 April 2024. It was as a result of their advice that he had instructed them to inform the parties on 19 April 2024 that the device handed over to CYFOR was not the device used to send and receive the WhatsApp Messages.

At a hearing for directions on 23 May 2024, at which Mr Hazlehurst was represented and opposed the orders sought, Richard Smith J dismissed Mr Jacques’ applications for cross-examination and for expert evidence. Having expressed concern (at [22]-[23]) at the delay in bringing the application, the judge noted (at [24]) that he was “now being asked to order what would, as presently framed, amount to a mini trial at the hearing of the discharge application as to the genuineness or otherwise of the original WhatsApp messages and, it would seem, the later malicious communications”. So far as expert evidence was concerned, analysis of the screenshots of the WhatsApp Messages was unlikely to help, and there had been no explanation as to why no analysis of Mr Holloway’s phone had been undertaken by MD5. Mr Jacques had failed to explain with clarity and precision what expert evidence was required and why it was likely to be helpful ([25]). As for cross-examination, the judge concluded (at [28]) “the suggested need for cross-examination for which permission is sought comes nowhere close to the very exceptional requirement for an application such as this”.

Mr Jacques eventually consented to an order dismissing his application to set aside the Freezing Order on 22 November 2024, shortly before it was due to be heard on 26 November 2024.