High Court rules on asset freezing injunctions in Mold Investments Limited v Holloway
In Mold Investments Limited v Holloway and Others [2025] EWHC 962, the High Court provided guidance on the exceptional circumstances in which cross examination of witnesses is permitted on interim applications. The judgment also serves as a reminder to respondents to without notice injunctions to act quickly if applying to set aside or vary the orders.
Background
Mold Investments brought a claim against two individual defendants (D1 and D2) alleging breach of fiduciary duties to Mold Investments related to alleged illegal dumping of waste in a quarry. Mold Investments sought compensation for remediation costs of tens of millions of pounds.
On 9 August 2023, the court granted a freezing injunction on a without notice basis against D1 and D2’s assets up to £55 million. The evidence supplied by Mold Investments in seeking the freezing injunction included screenshots of WhatsApp messages provided by an alleged former acquaintance of D1 and D2 to Mold Investment’s solicitor, in which D1 and D2 indicated that they intended to dissipate their assets. D1 and D2 denied the authenticity of the WhatsApp messages or that they had ever met the alleged former acquaintance.
Subsequently, Mold Investments issued a further without notice application to extend the scope of the injunction to cover the assets of companies in which D1 and D2 held an interest. In support of its application, Mold Investments presented evidence of threatening messages and phone calls regarding the dissipation of assets from two unknown numbers which they believed, and evidence produced by Mold Investment’s forensic experts supported, had originated from D1 and D2. In light of this evidence, the court granted the application. D1 and D2 disputed the authenticity of the messages and calls.
D1 subsequently applied on 6 December 2024 to set aside both the original and the extended freezing orders on the basis that the WhatsApp messages and threatening communications were fabricated and that Mold Investments had committed a fraud on the court by failing to disclose to the court that: (1) the metadata sitting behind the WhatsApp messages was not available and that the relevant phone had been broken; (2) the judge at an earlier related application had expressed reservations regarding the evidence underlying the original freezing injunction; (3) further relevant phones had not been preserved; and (4) the expert report relating to the mobile phones was biased. That application sought an expedited hearing and directions for the cross examination of both factual and expert witnesses.
D1 had previously filed an application to vary the original freezing injunction on 14 February 2024. This application was largely withdrawn, but it was relevant that at that stage, the authenticity of both the WhatsApp messages and the subsequent threatening communications was disputed.
On 18 March 2025, the High Court gave judgment on the set-aside application.
Right to bring a set aside application
The court noted that, whilst in general without notice injunction applications afford respondents the right to apply to set aside or vary them, that is not an unqualified right. The court may reject such an application on the basis that it should have been brought sooner, as the factual basis of the application was already known to or could reasonably have been discovered by the applicant.
In the present circumstances, the court held that whilst certain aspects of the application could and should have been advanced both more quickly and in a more focused manner than they were, not all of the evidence was available at such a point that the court was persuaded that D1 should have brought the present application at an earlier time. In particular, it had not come to light until after the previous application that the mobile devices used by the alleged former acquaintance of D1 and D2 and other individuals connected to the WhatsApp messages and threatening communications had been broken and/or stolen and accordingly not submitted for imaging. In the circumstances, the applicant did have a right to bring the set-aside application, as it relied on evidence that could not have been meaningfully deployed much sooner.
Cross-examination on interim applications
The court noted that whilst it has the power to direct oral evidence at the hearing of interim applications, cross-examination on interim applications should generally be reserved for exceptional circumstances to avoid disrupting the pre-trial process and minimise the risk of unfairness (Hunt v Annolight & Ors [2021] EWCA Civ 1663).
In the circumstances, the court held that it was appropriate to permit cross-examination. The court considered the seriousness of both the interim relief granted and the allegations of a conspiracy to pervert the course of justice. The court further noted that without cross-examination, it would be difficult for D1 to challenge the authenticity of the WhatsApp messages and threatening communications, due to shortcomings in the data available to the parties.
When setting directions for cross-examination, the court set strict parameters stating, “the court will not entertain a fishing expedition with a view to the formulation of that case at the hearing itself”. Further, the court made clear that the permission for cross-examination was subject to D1 setting out the allegations advanced against all individuals said to be implicated as fully as possible. In addition, the court made clear that to the extent:
- D1 asserted that any of the persons implicated were said to have held a particular motive for their actions, that motive should be identified along with the reasons they may hold it;
- other events or matters were relied upon by D1 to support the allegations, they must be identified. The court would not permit cross-examination by ambush; and
- D1 asserted a positive case as to why he and/or D2 or any other individual were not responsible for the various communications, that must be set out.
Comment
This judgment provides useful guidance on the circumstances in which the court will, exceptionally, permit evidentiary hearings for interim applications. It is also an important reminder of (1) the importance of preserving electronic communications and metadata when litigation is within a party’s contemplation and (2) the need for respondents to act promptly when challenging a without notice injunction. Whilst there is a general right to apply to set aside a without notice injunction, this right is not unqualified and may be denied if the respondent brings the application with unnecessary delay.
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