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

The judge gave judgment on the applications for directions orally on 18 March 2025. He briefly summarised the procedural background at [1]-[13]. He summarised the bases for Mr Holloway’s set-aside application at [14]-[16]. He summarised Mr Holloway’s submissions at [17]-[21]. He summarised Mold’s submissions at [22]-[34]. In this context, he mentioned at [32] Mold’s submission that applications to set aside interim relief should not descend into mini-trials and noted Mold’s reliance on Kazakhstan Kagazy plc v Arip [2014] EWCA Civ 381, [2014] 1 CLC 451. He discussed and determined the issues concerning the set-aside application at [35]-[56]. He began by observing that “the appropriate course to be adopted by the court … is not … a straightforward matter” ([35]). Having noted the two previous applications by Mr Holloway and Mr Jacques ([36]-[37]), and expressed some concern about Mr Holloway’s lack of urgency ([38]), he expressed more concern about the lack of particularisation of Mr Holloway’s allegations against Mold, Mr O’Grady and Mr Hazlehurst ([39]). Despite the concerns he had expressed, he was not persuaded that Mr Holloway could and should have made his application at the time of his earlier application to vary the Freezing Order or at the time of Mr Jacques’s application to set aside the Freezing Order ([40]).

The judge then turned to consider whether the application should proceed on the basis of written evidence or whether oral evidence was appropriate. He accepted Mold’s submission that “cross-examination on interim applications is reserved for very exceptional circumstances” ([41]). He concluded that this was one of those very exceptional cases in which it was appropriate to permit cross-examination for the following reasons. First, the evidential basis for the Freezing Order was the WhatsApp Messages. Their authenticity had been disputed straightaway, leading to the Imaging Order ([42]). Secondly, the Freezing Order was by its very nature draconian and had been extended by him on 5 January 2014. The circumstances of that application were themselves exceptional, and had led to exceptional relief being granted. The exceptional allegations had been challenged from the outset by Mr Holloway and Mr Jacques, culminating in allegations of fraud on the court, which were themselves vehemently denied by Mr O’Grady. Accordingly, cross-examination was in principle warranted. In coming to that view, the judge was satisfied that, as serious as they were, those allegations were “of a relatively straightforward and discrete nature, with limited overlap with the substantive issues” ([43]).

As to whether cross-examination should in fact be ordered, the judge reiterated his concern over the lack of particularity as to Mr Holloway’s allegations even after further clarification had been provided on the second day of the hearing. The summary provided by Mr Holloway was inadequate for Mr O’Grady to know what was alleged against him. The position was even worse for Mr Hazlehurst who was not a party ([45]). Accordingly, although the judge would grant permission for cross-examination of the witnesses of fact, this was subject to Mr Holloway setting out as fully possible his allegations against Mr O’Grady, Mr Hazlehurst and any other person said to be implicated, including identification of their motives and other events or matters relied on ([45]-[50]). As to who should be cross-examined, this should be all the witnesses save for the solicitors ([51]). Consideration would need to be given to any privilege issues that were likely to arise ([52]).

Turning to expert evidence, the judge was satisfied that the evidence of Ms Crane and Kroll was required. He was also satisfied that the evidence of Mr Robinson was required. He was less sure about Ms Dainty’s evidence, but gave permission for that as well ([53]).

Turning to disclosure, the judge noted that Mold had voluntarily disclosed the Norwich Pharmacal application papers and had promised to disclose a report made by Mr O’Grady to the police. It was agreed that Mold should have a copy of the image of Mr Holloway’s phone. An image of Mr Jacques’ phone was in the custody of the police following his arrest on 29 July 2023, and steps needed to be taken to address this ([54]).

In terms of timing, the judge vacated a three-day hearing of the committal application listed for the end of June 2025, and directed a five day hearing of Mr Holloway’s set aside application (with one day’s judicial pre-reading) be listed in that slot instead ([55]). He then addressed the other applications ([56]).