Mold Investments Limited v Matthew Joseph Holloway & Ors

A respondent’s right to seek discharge or variation of an interim injunction is not unqualified. The court may refuse to entertain points that were known, or reasonably discoverable, on an earlier application, subject to material new evidence or a material change of circumstances.

Cross-examination on an interim application remains exceptional. It may nevertheless be appropriate where the relief is unusually serious, the foundational evidence is directly challenged, the allegations are discrete, and the proposed evidence has limited overlap with the trial. Permission must be conditioned on proper particulars and cannot become a fishing expedition. Expert evidence should be admitted only where it is genuinely required to resolve the identified issues.

Mold Investments Limited obtained asset-freezing injunctions against Matthew Holloway and Andrew Jacques in proceedings concerning alleged fiduciary breaches and environmental remediation costs. Holloway later applied to set aside the injunctions, alleging that electronic messages relied upon to obtain them had been fabricated and that there had been material non-disclosure.

The application followed earlier applications by Holloway and Jacques, some of which had been withdrawn or refused. The present hearing concerned directions, including whether the application was procedurally open, whether oral and expert evidence should be permitted, and whether the hearing should be expedited.

1. The application could proceed. The right to apply to discharge or vary an injunction obtained without notice was not absolute. However, the later discovery that the original phone used for the relevant WhatsApp messages had not been imaged, together with the subsequent availability of significant technical evidence, meant that the present application was not barred by the earlier procedural history.
2. Cross-examination was exceptionally warranted in principle. Permission was ordinarily reserved for very exceptional cases because interlocutory cross-examination could disrupt the pre-trial process, cause unfairness, or pre-empt the trial. This was one of those rare cases because the injunctions were draconian, the evidential foundation was directly challenged, the allegations concerned alleged fabrication of electronic communications, and the issues were relatively straightforward and discrete. The approach in Hunt v Annolight & Ors [2021] EWCA Civ 1663 was applied.
3. Permission was conditional upon Holloway setting out fully the allegations against O’Grady, Hazlehurst and any other implicated person, identifying any alleged motive and supporting events, and stating any positive case relied upon to show that Holloway, Jacques or others were not responsible. The court would not permit cross-examination by ambush or a fishing expedition.
4. Expert evidence concerning the phones, SQLite databases and communications-mast data was permitted because it was required on the issues identified. Evidence concerning alleged bias in the cyber report was permitted, but oral evidence might not be necessary if the technical matters were not genuinely disputed.
5. The related variation and stay applications were adjourned. An application for permission to appeal did not operate as a stay. Costs were costs in the application.

First-instance directions ruling. No appellate history was stated in the judgment.