English High Court grants rare order for cross-examination on an interim application

Witnesses giving evidence in interim applications do not generally expect to be cross-examined since the court is not usually making final determinations of fact.

However, in a rare exercise of its powers, the High Court has recently granted permission in Mold Investments Ltd v Holloway and others [2025] for a defendant to cross-examine the witnesses who gave evidence in support of an ex-parte application for a freezing order. This was an exceptional case involving allegations of fraud and the fabrication of documents.

Claim background

Mold Investments relates to claims for breach of fiduciary duty by two defendants in connection with their former roles in the claimant company. The broader factual background is not relevant for current purposes.

In December 2024, the first defendant applied to set aside a freezing order obtained by the claimant over 12-months earlier, alleging that the freezing order had been obtained by the claimant's non-disclosure and by fraud on the court. In particular, it was alleged that the claimant relied on fabricated evidence, including WhatsApp screenshots,  in obtaining the freezing order and had failed to disclose material facts to the court, including as to the availability of the metadata relating to the underlying evidence.

The first defendant sought a five-day hearing of his set aside application, and permission for cross-examination of the claimant's witnesses and expert evidence on issues of the authenticity of electronic communications.

High Court decision

Mr Justice Richard Smith recognised that permission for cross-examination on interim applications required "very exceptional circumstances" (per Hunt v Annolight [2021] EWCA Civ 1663). Nonetheless, he considered that such circumstances were present in this case:

• The authenticity of the WhatsApp messages on which the claimant relied had been immediately disputed by the defendants.
• Imaging orders made in relation to certain devices said to contain relevant evidence were not properly discharged because, it was asserted by the claimant, the relevant devices had been damaged or stolen.
• The freezing order was a very serious and draconian remedy which had been made on the basis of very serious allegations which were themselves challenged on the basis of further exceptional allegations of fraud.

The judge also considered that the first defendant's allegations were relatively straightforward and discrete in nature, such that there would be limited overlap with the more substantive issues to be determined at trial.

On these grounds, the judge granted the first defendant's application and gave permission for cross-examination and oral expert evidence on the strike-out application (on the condition that the first defendant's allegations of fraud be properly particularised).

Osborne Clarke comment

This decision does not change the law but serves as a useful reminder of the circumstances where it may be possible to cross-examine witnesses at an interim hearing.

The general position remains that the court will remain reluctant to conduct a "mini trial" at an interim stage. However, the case emphasises the serious nature of freezing injunctions and the importance of the court policing their use and preventing abuse.

This was an exceptional case, with allegations of the fabrication of documents and fraud allegations by both sides. However, what is exceptional in the context of normal litigation is not necessarily exceptional or that unusual in the context of the work carried out by fraud practitioners.