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KB-2024-000054 - [2025] EWHC 2733 (KB)
Fecha: 22-Oct-2025
Application to strike out parts of the defendant’s trial witness statement
Application to strike out parts of the defendant’s trial witness statement
The first claimant’s pleaded case is for breach of contract. Specifically, it is alleged that the defendant has breached:
Clause 23.1.6 of the Service Agreement entered into by the first claimant and the defendant on 31 July 2020 by which the defendant covenanted that he would not “at any time after Termination, represent himself as connected with the Company or any Group Company in any Capacity other than as a former employee, or use any registered business names or trading names associated with the Company or any Group Company” (‘the non-representation term’), by incorporating a company called Sitex Orbis Fraud Investigations Limited and by referring to himself in terms such as “John MR Optosafe Robertson”; and
Clause 12.4 of the Settlement Agreement entered into by the first claimant and the defendant on 4 June 2021 by which the defendant agreed: “You shall not make any adverse or derogatory comment about us, or our officers, employees or workers and you shall not do anything which shall, or may, bring us or our officers, employees or workers into disrepute. We shall use reasonable endeavours to ensure that our officers, employees and workers shall not make any adverse or derogatory comment about you or do anything that shall, or may, bring you into disrepute. This clause is subject to clause 12.5, clause 12.6 and clause 12.7.” (‘The non-disparagement term’). It is alleged the defendant breached the non-disparagement term by a post published on LinkedIn on 4 February 2023, and thereafter by the publications which are also pleaded as the course of conduct in harassment.
So far as relevant to the breach of contract claim, the Amended Defence pleads:
A bare denial of the claim in its entirety (2.1, paragraph 1) and a request for the first claimant’s claim to be dismissed (2.1, paragraph 14); and
That the first claimant’s legal action “constitutes an abuse of process and attempt to pervert the course of justice by seeking to suppress evidence and obstruct the ongoing law enforcement investigations through intimidation and legal threats” and that the purpose of the claim is to silence the defendant (2.1, paragraphs 4 and 5).
In the Amended Defence the defendant also “reserves his right to bring counterclaims” (2.1, paragraph 14) and pleads: “I reserve the right to allege that the settlement agreement was obtained by misrepresentation, as referenced in paragraphs 10-13 of the draft Counterclaim. I acknowledge that I need to properly particularise this allegation and will do so in accordance with the Court’s order” (3.1 and 6.1). However, the defendant has no counterclaim, having been refused permission to bring any counterclaim in the terms in which he sought to plead it, and so this part of the Amended Defence has fallen away.
It follows that there is no positive defence to the first claimant’s breach of contract claim. The defendant has put the first claimant to proof of its claim.
The second claimant’s pleaded claim is in harassment. The second claimant alleged that the defendant has pursued a course of conduct amounting to harassment of the second claimant and those of whom his situation is representative, between 4 February 2023 and 10 January 2024, contrary to s.1(1) of the 1997 Act. The particulars of harassment are pleaded at paragraphs 22.1 to 22.60 of the Particulars of Claim.
So far as relevant to the harassment claim, the Amended Defence pleads:
A bare denial of the claim in its entirety (2.1, paragraph 1 and 3) and a request for the second claimant’s claim to be dismissed (2.1, paragraph 14); and
“that far from constituting ‘harassment’, his communications and actions were for legitimate purposes, namely:
To expose serious criminal activities being undertaken by C1, C2 and other associated individuals and entities” (2.1, paragraph 2).
The Amended Defence provides no particulars of the alleged criminal activities. But the defendant has pleaded (i) that since September 2023 there has been “an ongoing investigation by the Security Industry Authority into these criminal activities” (‘the SIA investigation’) for which he has been the lead source; and that (ii) on 24 January 2024 Police Scotland commenced an ongoing investigation into “organised criminal activities by C1, C2 and others” (‘the Police Scotland investigation’), for which he is a key witness and to which he provides regular updates.
“that far from constituting ‘harassment’, his communications and actions were for legitimate purposes, namely:
… to encourage whistleblowers to come forward without fear of violence or intimidation by C1, C2 and those associated with them, to assist” the SIA investigation and the Police Scotland investigation (2.1, paragraph 2).
“that his communications constituted lawful investigative journalism” (2.1, paragraph 3);
that his communications constituted “the publication of matters of public interest relating to serious criminal allegations” (2.1, paragraph 3);
That the second claimant’s harassment claim “constitutes an abuse of process and attempt to pervert the course of justice by seeking to suppress evidence and obstruct the ongoing law enforcement investigations through intimidation and legal threats” and that the purpose of the claim is to silence the defendant (2.1, paragraphs 4 and 5).
That his communications “did not amount to harassment” as, in “pursuing legitimate complaints, exposure of alleged criminality and legal remedies for significant harms suffered”, “no conduct was used to alarm the claimants” (2.1, paragraph 12).
In addition, the defendant has referred to a proposed counterclaim for misuse of private information (4.1 and 6.1), but in the absence of any counterclaim this part of the Amended Defence has fallen away.
It follows that the defendant positively contends, in response to the harassment claim:
that his conduct as pleaded at paragraphs 22.1 to 22.60 of the Particulars of Claim did not amount to harassment within the meaning of ss.1(1) and 7(2) of the 1997 Act because it was not used to alarm;
he relies on the s.1(3)(a) defence that his course of conduct was pursued for the purpose of preventing or detecting crime (namely the activities which were the subject of the SIA investigation and the Police Scotland investigation); and
he relies on the s.1(3)(c) defence that in the particular circumstances the pursuit of the course of conduct was reasonable because it was designed to encourage whistleblowers to come forward to the SIA and Police Scotland, and it was investigative journalism in respect of serious criminal matters which were a matter of public interest.
The defendant’s trial witness statement is 21-pages long. The paragraphs are not numbered, but it is divided into 16 parts (numbered 1-13, with the addition of part 2.5 and two parts each being numbered 11 and 12). The claimants apply for an order striking out in their entirety the first 13 parts (i.e. 1-11, including 2.5 and both parts numbered 11) and the final part (part 13), as well as some of the evidence given each of the parts numbered 12. Leaving aside those parts of the second part 12 which are purely duplicative of the first part 12, there is only about a page of the defendant’s statement to which the claimants do not object.
The ground on which the claimants based their submission is that the parts they seek to have struck out are (a) irrelevant background history and the history of the proceedings; (b) unpleaded adverse allegations as to the claimants’ conduct; (c) a counterclaim for misuse of private information for which the defendant has been refused permission; and (d) various other points which are unparticularised and unheralded in the Amended Defence.
The defendant accepts that the entirety of part 13 (headed “The High Court Claim and My Defence (2024-2025)”) should be deleted, given that he does not have a counterclaim. Accordingly, it is unnecessary for me to address that part of his statement.
In considering the question of admissibility of evidence I have applied the principles identified by Warby J in Aven & ors v Orbis Business Intelligence Ltd [2020] EWHC 474 (QB) at [9]-[17]. In a non-jury case such as this, objections are often left to be resolved at trial. An editing process may be disproportionate and inconsistent with the overriding objective. But it is not exceptional for objections to be raised and resolved before trial, and there can be good reasons for doing so.
CPR 32.4(1) provides:
“A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”
That means evidence of fact which is relevant to the issues that arise from the statements of case, and which the witness is able to give.
Paragraph 10.62(3) of the King’s Bench Guide states that “A witness statement should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included…”
In my judgment, in light of the point reached in the proceedings and bearing in mind that I am not the trial judge, it is appropriate to take a generous view of what might be relevant. Although, understandably, the claimants criticise the lack of particulars of the “criminal activities” referred to in the Amended Defence, I bear in mind that the claimants have not made a request for further particulars. Equally, while the claimants contend with some force that the matters relied on are not a defence to the contract claim and are incapable of giving rise to a defence to the harassment claim, I remind myself that this is not an application for summary judgment or to strike out the defence (or any part thereof).
Nevertheless, even taking such a generous approach, I conclude that the following parts of the defendant’s witness statement should be struck out:
In part 2, headed “Orbis’s Acquisition of Optosafe (31 July 2020 – ‘Project Sphere’)”, the words from “That offer included express assurances …” (in the penultimate paragraph of part 2) to “underpin my eventual resignation” (i.e. to the end of part 2).
Reason: This part of the statement addresses an allegation of contractual misrepresentation. As explained above, there is no such pleaded allegation in the contract claim. Nor is any such allegation of any relevance to the issues in the harassment claim. It has no conceivable impact on whether the defendant’s conduct constituted harassment. Nor is it, on any view, alleged criminal activity. Although I consider that a s.1(3)(c) defence has been raised, the circumstances relied on to establish that the course of conduct was reasonable are all connected to the alleged criminal matters.
Applying the generous approach to which I have referred, I will not strike out the background matters in part 1 or part 2 (other than to the extent identified above). I note that the witness statements of Mr Howard also address the background.
In part 2.5, headed “Concealment of the George McMillan Incident and Subcontractor Murder”, the whole of the final paragraph (i.e. from “Had I known that Orbis” to “Orbis’s senior leadership culture”).
Reason: This part of the statement addresses an alleged breach of trust and candour in the contractual relationship between the defendant and the first claimant. There is no such pleaded allegation in respect of the contract claim and for the same reasons as given in respect (i) above, it is of no relevance to the pleaded defence to the harassment claim.
Applying the generous approach I have identified, I have allowed most of this part to remain. It appears to address one of the criminal matters that was the subject of the Police Scotland investigation and Mr Howard has identified it as one of the matters he anticipated the Amended Defence was referring to, albeit without particularisation.
The whole of Part 3, headed “Immediate Breakdown of Trust and Abandonment of Pre-Acquisition Assurances (August 2020)”.
Reason: This part of the statement focuses on the way the defendant was treated in his employment relationship, and on alleged breaches of alleged assurances and the duty of trust. The defendant has not pleaded any allegation of breach of contract by the claimants, and the alleged breaches are of no conceivable relevance to the issues in the harassment claim.
Parts 4 and 5 appear to be matters that are said to have been the subject of the SIA investigation, and so conceivably relevant to the harassment claim. Taking the generous approach I have identified, I have allowed them to remain in the defendant’s statement for trial.
In part 6, headed “Escalation of Concerns and Internal Resistance (December 2020 – February 2021)”, the whole of the 4th to 7th (and final) paragraphs (i.e. from “Despite being the Managing Director” to “a silent passenger to wrongdoing”).
Reason: This part of the statement addresses the defendant’s allegations that, in his employment, he was side-lined (as was Laura Pearson), reduced to “operational execution”, misled into signing the service agreement and constructively dismissed. On the pleadings, none of these matters are in issue in the contractual claim. Nor are they of any relevance to the issues raised by the pleadings in the harassment claim. I note there is a reference to “concealment of material regulatory and criminal risks” in the final paragraph of this part, but it is a bare reference in a paragraph which is addressed to the breakdown of the contractual relationship. Even taking a generous view of admissibility, it is irrelevant to the issues pleaded.
Applying the generous approach I have identified, I have allowed the first three paragraphs of part 6, and the whole of part 7, to remain in, on the basis that they appear to address matters that have been the subject of the Police Scotland investigation and/or the SIA investigation pleaded by the defendant in his defence to the harassment claim.
In part 8, headed “My Resignation and Threat of ‘Bad Leaver’ Treatment (March – May 2021)”, the following passages fall to be struck out:
“My professional judgment, autonomy, and integrity had been systematically undermined by the very people who had induced me to stay under false pretences.”
“I was excluded from due diligence discussions, my role was hollowed out, and I was left with no access to the information or authority necessary to discharge my responsibilities.”
The whole of the paragraph beginning “Shortly after that meeting”.
The words “- and in my view, amounted to constructive dismissal”.
The words from “- but he failed to disclose that Mr Other was” to “confirmed the depth of the misrepresentation”.
The words from “It was made clear that this was a line I would not cross” to the end of the part (i.e. to “and released me from any obligation to remain silent”).
Reason: The identified parts of the statement focus on alleged breaches of contract and alleged contractual misrepresentations by the claimants, such that the defendant claims to have been constructively dismissed. As I have said, none of those matters are of any conceivable relevance to the issues arising from the pleadings in the contract or harassment claims.
Applying the generous approach I have identified, I have allowed some of this part to remain in as the defendant’s account of the factual background.
In part 9, headed “Settlement Agreement and Share Buyback (June 2021)”, from the second paragraph (beginning “Under the settlement agreement”) to the end of the part (ending “I no longer consider myself bound by the terms”).
Reason: The terms of the Settlement Agreement are not in issue. The defendant’s contention in these paragraphs that the claimants are in repudiatory breach, and that he is no longer bound by any confidentiality or non-disparagement terms, do not go to any pleaded issue. As I have said, there is no positive case raised in the defence of the contract claim, only a bare denial. And none of the matters alleged in the section of part 9 I have identified go to any issues raised on the pleadings in the harassment claim.
I have allowed the first paragraph of this part to remain in as the defendant’s account of the factual background.
In part 10:
The words from “…even as I have been excluded from meetings” to “ten days earlier”;
The three paragraphs from “Crucially, Synova’s investment” to “would imperil the deal”;
The sentence “But the deliberate misrepresentation” to “or the sale process”; and
In the final sentence of this part, the words “counterclaim and”.
Reason: I have taken a cautious approach, and one which is generous to the defendant, in not striking out the whole of this part. The parts I have identified for strike out go only to the defendant’s unpleaded allegations of a breach of contract by his employer and alleged failures to keep him apprised of matters.
I have refrained from striking out those parts of the defendant’s evidence regarding the Synova transaction which it appears he may contend were considered in one of the criminal investigations he has pleaded in defence of the harassment claim.
The whole of part 11 (first) headed “Discovery of the HIV Disclosure and Breakdown of Confidentiality (June 2021 – April 2022)” and part 11 (second) headed “Public Exposure, Social Fallout, and Targeted Violence (2021-2022)”
Reason: The defendant has no counterclaim for misuse of private information. Nor has he raised any positive case in response to the contract claim. This part of the defendant’s statement does not allege any criminal activity, nor that any of these matters were considered in the criminal investigations, and it is not relevant to his pleaded defence of the harassment claim. In part 11, the defendant alleges breach of trust, breach of the General Data Protection Regulation, breach of confidence, unlawful discrimination under the Equality Act 2010 and misuse of private information, none of which is of any relevance to the pleaded issues in respect of the claimants’ contract and harassment claims. The second part headed part 11 addresses the alleged consequences of those unpleaded counterclaims.
Within Part 12 (first), headed “Public Disclosures and Whistleblowing Communications 2023”, the claimants take objection only to two passages. It follows from my conclusion in respect of part 11 that I agree the first of these two passages (which follows on from the (non-existent) misuse of private information counterclaim) is of no conceivable relevance and should be struck out. It reads:
“On 23 August 2023, I publicly announced that I was becoming an HIV awareness advocate – in part because of what I had experienced. I explained that my decision to speak out was not just about personal justice, but about fighting stigma and challenging corporate cultures that treat human beings as expendable.”
Taking the approach I have identified, I will not strike out the second passage in which the defendant gives his view of the claimants’ action in bringing a claim against him.
The same paragraph that I have said should be struck out where it first appears in part 12 (first), quoted in paragraph 39(ix) above, also requires to be struck out where it is duplicated in part 12 (second). I further note that the first seven paragraphs (include the paragraph quoted above) of part 12 (second) are entirely duplicative of those paragraphs as they appear in part 12 (first). While the claimants do not take objection on grounds of duplication, in circumstances where the defendant will be required to re-file an amended version of his witness statement, it would obviously be beneficial for the parties and the court if those duplicative paragraphs were removed.
The claimants seek to have struck out the three paragraphs from “Rather than address these matters” to “and punish me for speaking up”. I note that the defendant is wrong characterise the claim as one in libel Nevertheless, applying the approach to striking out that I have identified, I will refrain from striking out these paragraphs, save to the extent that the sentence “In my view, this was not a bone fide attempt to resolve the issues - it was a strategic lawsuit against public participation (SLAPP)” should be struck out as irrelevant. The defendant’s view that it is a SLAPP is meritless, but more importantly is of no relevance in circumstances where the claim has not been found to be a SLAPP, nor has any application been made for it to be declared a SLAPP.
I emphasise that the admissibility and relevance of the defendant’s witness statement, insofar as I have not struck it out, will be a matter for the trial judge. The fact that I have allowed material to remain in, at this stage, does not preclude the claimants from submitting that such evidence is irrelevant or inadmissible, or the trial judge from so concluding.
Accordingly, I will make an order requiring the defendant to re-file his statement with those parts of his current statement that I have identified above removed. At the same time, it would be of assistance to the court and the parties if the defendant takes the opportunity to ensure that each paragraph of his statement is consecutively numbered (see paragraph 10.62(5) of the King’s Bench Guide which states that “Witness statements should be written in consecutive numbered paragraphs”).