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

On 4 and 5 March 2025 there was a directions hearing before Richard Smith J, primarily with respect to (i) Mr Holloway’s application to set aside the Freezing Order and its extension, but also with respect to (ii) an application by Mr Holloway dated 27 January 2025 for variation of the Freezing Order and (iii) an application by Mold in the Leeds Proceedings for a stay dated 6 November 2024. Because Mr Hazlehurst had not been served with the set-aside application, he was not present or represented.

Mr Holloway asked for an expedited hearing of the set-aside application with a direction for the makers of all affidavits and witness statements (except for Mr Whelan and another solicitor) to attend for cross-examination and with both parties being given permission to rely upon expert evidence.

Mold’s position was that the set-aside application should be summarily dismissed both because it could and should have been made earlier, having regard to the previous applications by Mr Holloway and by Mr Jacques, and because of undue delay since the evidence relied upon was available to, or could have been obtained by, Mr Holloway. Furthermore, Mold submitted that the applications for permission to cross-examine Mold’s witnesses and for expert evidence were misconceived for a number of reasons, but in particular because cross-examination prior to trial was exceptional and because this would involve a mini-trial of heavily contested factual issues. In support of this submission Mold relied upon Derby & Weldon Co Ltd v Weldon [1990] 1 Ch 48, Kazakhstan Kagazy plc v Arip [2014] EWCA Civ 381, [2014] 1 CLC 451 and National Bank Trust v Yurov [2016] EWHC 1914 (Comm). In the alternative, Mold submitted in paragraph 75 of its skeleton argument that “it would be wrong for this application to be determined prior to the trial” for two reasons: first, it would be a waste of costs and court resources for there to be two hearings with oral evidence; and secondly, there was a substantial overlap of issues between the substantive claim and the set aside application, in particular concerning the alleged threats/acts of violence, the removal of Mr Holloway as a director of Mold and the role of Mr Amos, as well as issues of credibility. Accordingly, the set-aside application should be heard, if it all, at the same time as the trial of Mold’s substantive claim.