Optosafe Limited & Anor v John Mark Robertson

An injunction made in proceedings for the statutory tort of harassment is not automatically a protective injunction for the purposes of Part 7A of the Courts Act 2003 unless it falls within the categories specified by the relevant regulations. The court may not add omitted statutory references to the regulations by implication. The equitable origin of an injunction does not make it a common law injunction for that purpose.

Pre-trial evidence should be assessed by reference to the pleaded issues. A generous approach may be appropriate before trial, but unpleaded allegations and evidence with no conceivable relevance may be removed. Failure to serve a trial witness statement within the ordered time is a sanction engaging the Denton test, and relief may be refused where the breach is serious, unexplained and causes disruption close to trial.

The claimants brought proceedings comprising a breach of contract claim by Optosafe Limited and a harassment claim by Benjamin William Howard. The claim was listed for trial in November 2025.

At a pre-trial review, the claimants sought a ruling that the defendant could not cross-examine Mr Howard in person, orders striking out parts of the defendant’s witness statement and hearsay notice, and related case-management relief. The defendant sought permission to rely at trial on a late witness statement from Laura Pearson. The court had to determine whether the existing interim injunction was a protective injunction, which evidence was relevant to the pleaded claims, and whether relief from sanction should be granted.

1. Cross-examination. The interim injunction was made on notice, but it was not a protective injunction within s.85G of the Courts Act 2003. The injunction had been granted in proceedings alleging breach of s.1(1) and relying on s.3 of the Protection from Harassment Act 1997. Schedule 2 to the 2022 Regulations expressly referred to s.3A, but not ss.1 or 3. There was no basis for reading the omitted provisions into the table. Nor was the injunction a common law injunction merely because injunctions are equitable in origin. The automatic prohibition therefore did not apply.
2. The court noted that the trial judge might consider a discretionary direction under s.85I of the Courts Act 2003. The court also retained powers under CPR 32.1(3) and the overriding objective to control evidence and limit cross-examination.
3. Witness statement. Applying the principles in Aven, the court took a generous view of relevance because the application was pre-trial and was not an application for summary judgment or to strike out the defence. Nevertheless, material concerning unpleaded contractual misrepresentation, constructive dismissal, breach of trust, data protection, discrimination, misuse of private information and other counterclaims was irrelevant to the pleaded contract and harassment issues. The defendant was ordered to re-file the statement with the identified passages removed.
4. Hearsay notice. Parts concerning abandoned counterclaims and alleged defamatory statements did not bear on the pleaded issues. Evidence about alleged retaliation did not establish the defendant’s purpose in pursuing the alleged course of conduct and was not relevant to the pleaded s.1(3)(c) defence. The specified parts were struck out, while paragraphs concerning an alleged criminal investigation were allowed to remain.
5. Late witness statement. Failure to serve Ms Pearson’s statement by the ordered date was a sanction under CPR 32.10. The Denton test applied. The breach was serious, there was no coherent explanation for the default, and admitting the evidence shortly before trial would disrupt preparation. The statement was also of limited relevance and value. Relief from sanction and permission to rely on the statement were refused.