Mold Investments Limited v Matthew Joseph Holloway

The Court of Appeal allowed Mold Investments Limited's appeal in part and directed that applications to set aside the without‑notice freezing order and its extension should be heard together with the substantive trial rather than at a stand‑alone satellite hearing. The court accepted that cross‑examination and expert evidence may be appropriate in exceptional cases where an injunction is said to have been obtained by fabricated or misleading material, but concluded that in this case the factual issues underpinning the set‑aside application overlapped significantly with the merits of the substantive claim and therefore should not be tried separately. The court applied the established principles about interim applications (including the duty of full and frank disclosure and the need to avoid mini‑trials) but held that case management required a single trial to ensure efficiency, full disclosure and proper treatment of non‑party witnesses.

Background and nature of the claim.

Mold owns Parry’s Quarry and alleges large‑scale unlawful permanent disposal of waste during the Relevant Period, seeking equitable compensation and damages against former directors including Mr Holloway for breach of directors’ duties (Companies Act 2006). Mold obtained a without‑notice freezing order and later an extension; the central evidence relied on to show risk of dissipation included screenshots of WhatsApp messages said to be from Mr Hazlehurst and cell‑mast analysis of malicious communications.

Procedural posture. This is an appeal from Richard Smith J ([2025] EWHC 962 (Ch)) against his order directing a stand‑alone, five‑day hearing (plus judicial reading) to determine Mr Holloway’s application to set aside the freezing order on the ground the orders had been obtained by fabricated evidence. The High Court had already made multiple interlocutory orders (including an imaging order and Norwich Pharmacal disclosure) and there were a number of related proceedings.

Relief sought and issues framed.

• (i) The set‑aside application: declarations that (on the balance of probabilities) the WhatsApp screenshots were forgeries, the malicious communications were concocted, and that Mold had failed in its duties of full and frank disclosure; consequential setting aside of the freezing order and indemnity costs.
• (ii) Whether the set‑aside application should be heard at a stand‑alone satellite hearing with cross‑examination and expert evidence, or together with the substantive trial.
• (iii) Whether cross‑examination and expert evidence were appropriate at interlocutory stage.

Court’s reasoning and decision.

The court held that (a) the general rule that interim applications should not become mini‑trials remains sound, and cross‑examination on interim applications is reserved for very exceptional cases; (b) allegations that an applicant obtained an injunction by deception or material non‑disclosure are of a different character from an ordinary discharge application and, in principle, may justify an interlocutory hearing with oral evidence if necessary to protect the integrity of the court and the defendant; (c) however, in this case the disputed factual matters (the WhatsApp messages, motives, background events, cell‑mast evidence and credibility of numerous witnesses) substantially overlapped with the substantive issues at trial, disclosure was incomplete and particulars were deficient, and a satellite trial would be inefficient, disproportionate and unfair to non‑parties. The appeal was therefore allowed on the ground that the set‑aside application should be determined at the substantive trial; the court did not accept the argument that interlocutory oral evidence is never permissible and did not disturb the judge’s finding that cross‑examination and experts could be necessary in principle.

Appeal allowed. The judge erred in ordering a separate stand‑alone hearing to determine the application to set aside the freezing order because the disputed issues central to the set‑aside application overlapped significantly with the substantive trial; the proper course was to determine the set‑aside application at the substantive trial to avoid duplicative proceedings, ensure full disclosure and protect fairness to non‑parties. The court nevertheless confirmed that in exceptional cases interlocutory cross‑examination and expert evidence remain available.

Appeal from the High Court of Justice (Business and Property Courts, Chancery Division) before Richard Smith J: [2025] EWHC 962 (Ch). The underlying interlocutory history includes a freezing order granted by Mellor J on 9 August 2023, continued and varied on subsequent interlocutory hearings, an Imaging Order and Norwich Pharmacal disclosure made in December 2023. The order under appeal is Richard Smith J’s directions/order dated 18 March 2025 which directed a stand‑alone hearing of the set‑aside application.