Mold Investments Limited v Matthew Joseph Holloway

An application to set aside a freezing order for material non-disclosure or fabricated evidence is different from an ordinary application to discharge an injunction on its merits. The issue is whether the applicant misled the court and, if so, whether the order should be set aside. Oral evidence and cross-examination may be ordered where necessary and proportionate. There is no absolute rule requiring such an issue to await trial. However, a separate pre-trial hearing is generally inappropriate where the allegations depend on disputed facts that substantially overlap the underlying claim. The court must consider whether one trial best serves the overriding objective, including efficiency, completeness of evidence and procedural fairness to non-parties. Here, both set-aside applications were therefore directed to be heard with the substantive trial.

Mold claimed equitable compensation and damages against Matthew Holloway and others for alleged breaches of directors’ duties arising from unlawful waste disposal at a quarry. Mold had obtained and extended a freezing order relying principally on WhatsApp messages and alleged malicious communications.

Holloway applied to set aside the orders, alleging that the evidence had been fabricated and that Mold had breached its duties of fair presentation and full and frank disclosure. Richard Smith J ordered a stand-alone hearing with oral and expert evidence: [2025] EWHC 961 (Ch). Mold appealed, arguing that the application should be heard with the substantive trial. The central issues were whether oral evidence could be ordered before trial and, if so, whether the allegations should be determined separately or together with the underlying claim.

1. Disposition. The appeal was allowed on Ground 2. Ground 1 was rejected, and Ground 3 did not require separate determination. Holloway’s set-aside application, and Jacques’ subsequent application on the same grounds, were directed to be heard with Mold’s substantive trial.
2. Appellate review. Arnold LJ applied the established restrained approach to case-management decisions. The appellate court does not exercise the discretion afresh, but may intervene for legal misdirection, failure to consider relevant matters, consideration of irrelevant matters, or a plainly wrong decision outside the generous ambit of reasonable disagreement: Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743, cited with approval in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64.
3. Ground 1. The ordinary practice on an application to grant or discharge a freezing injunction is not to resolve disputed facts by trial or cross-examination. That practice reflects the interim nature of the relief. An application to set aside for material non-disclosure or deception is different. It asks whether the applicant misled the court and whether the order should be set aside, even if the merits and risk of dissipation might otherwise justify relief. There is no absolute prohibition on oral evidence before trial. In an exceptional case, a discrete fact may be determined earlier where it can be established within a narrow compass and is not germane to the substantive issues.
4. Ground 2. The principal consideration in deciding whether to hold a satellite hearing is the extent to which the issues overlap or trespass upon those for trial. A separate hearing is generally inappropriate where credibility can only be assessed against the evidence as a whole, where disclosure is incomplete, or where witnesses and non-parties would require disproportionate procedural protection. The alleged fabrication here depended upon evidence concerning the parties’ relationships, motives, dealings at the quarry, alleged illegal tipping and the credibility of several factual witnesses. Those matters substantially overlapped the substantive claim.
5. Application of the principles. The judge failed to address expressly whether there should be one trial or two. He ordered the satellite hearing before Holloway’s allegations had been fully particularised and gave no adequate analysis for his conclusion that the overlap was limited. Two trials would duplicate evidence, consume disproportionate resources, proceed on incomplete disclosure and create procedural difficulties for non-parties such as Hazlehurst.
6. Other considerations. The seriousness of the allegations and the continuing burden of a freezing order may favour an early determination, but they do not create a default entitlement to a satellite trial. The cross-undertaking in damages remains an important protection where an interim order proves unjustified. In the circumstances, firm case management towards an early substantive trial was the proportionate course.
7. Judicial views. Arnold LJ gave the leading reasoning. Nugee LJ agreed that Ground 2 succeeded, emphasising the distinct character of a deception-based set-aside application but concluding that the substantial overlap required determination at the main trial. Snowden LJ agreed with both judgments and explained that the rule in Derby & Co Ltd v Weldon was contextual rather than absolute.

• Court of Appeal (Civil Division): In [2025] EWCA Civ 986, the appeal was allowed on Ground 2. The stand-alone set-aside hearing was replaced by a direction that the applications be heard with the substantive trial.
• High Court, Chancery Division: Richard Smith J directed a stand-alone hearing involving oral and expert evidence in the set-aside application, in the judgment cited as [2025] EWHC 961 (Ch).