“One Trial, Not Two” – The Consolidation Principle for Set-Aside Hearings of Freezing Injunctions
A Commentary on Mold Investments Ltd v Holloway ([2025] EWCA Civ 986)

1. Introduction

In Mold Investments Ltd v Holloway the Court of Appeal was asked to determine whether an application to set aside a multi-million-pound freezing order—on the ground that it had been procured by fabricated evidence—should be tried at a self-standing, five-day “mini-trial” or folded into the full trial of the underlying directors’ breach-of-duty claim. Arnold LJ (with whom Nugee LJ and Snowden LJ agreed, albeit with nuanced reasons) allowed Mold’s appeal, quashing the Chancery judge’s order for the stand-alone hearing and directing that the set-aside application be heard concurrently with the substantive trial.

The judgment:

• Re-affirms the long-standing Derby v Weldon aversion to satellite trials when an interim injunction is challenged.
• Distills a “Consolidation Principle”: where the facts relied on to impeach a freezing order “significantly overlap” with the merits, the set-aside application should normally be adjourned to, and tried with, the main action.
• Explains how case-management discretion will be reviewed on appeal.

2. Summary of the Judgment

The appeal succeeded on Ground 2 (case-management error) but failed on Ground 1 (no rigid prohibition on interim cross-examination) and Ground 3 became academic.

1. The Chancery judge had scheduled a five-day evidential hearing of Mr Holloway’s set-aside application, permitting cross-examination of twelve fact witnesses and four experts.
2. Mold argued that such a satellite trial was wasteful, overlapped with the merits, and ignored the orthodox practice that interim disputes of fact are not tried pre-trial.
3. The Court of Appeal (Arnold LJ giving the lead) held that:
   • Cross-examination may be ordered in “very exceptional” cases, and the judge was entitled in principle to think this was such a case;
   • However, he never grappled with the prior question—should there be one hearing or two? Nor did he analyse the obvious overlap between the fraud allegations about the WhatsApp and “malicious communication” evidence and the directors’ liability issues;
   • Ordering a separate hearing therefore misdirected the case-management discretion and was plainly wrong.
4. The Court substituted an order that Mr Holloway’s (and now Mr Jacques’) set-aside applications be determined at the same time as the main trial. Permission for cross-examination and expert evidence was not disturbed—it will simply occur at the trial.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Derby & Co Ltd v Weldon [1990] 1 Ch 48 – the fountainhead authority that courts should resist “mini-trials” when granting or continuing freezing orders. Parker LJ’s warning that judges must not resolve substantive factual disputes at an interlocutory stage framed the entire debate.
• Sukhoruchkin v Van Bekestein [2014] EWCA Civ 399 – reiterated the Derby stance.
• Kazakhstan Kagazy plc v Arip [2014] EWCA Civ 381 – Longmore LJ emphasised that applications to discharge Mareva orders should not become mini-trials and quoted Toulson J’s dictum in Crown Resources v Vinogradsky.
• Columbia Pictures v Robinson [1987] Ch 38 – example where questions about interim relief were postponed to trial.
• Boreh v Republic of Djibouti [2015] EWHC 769 – rare instance where pre-trial cross-examination on a set-aside was allowed; used by Mr Holloway as a counter-example. The Court of Appeal distinguished it: the facts there were discrete, “readily established”, and centred on an officer of the court.

3.2 Legal Reasoning of the Court of Appeal

The appeal turned on case-management discretion. Under Broughton v Kop Football, an appellate court intervenes only if the judge misdirects himself, ignores relevant factors, considers irrelevant factors or reaches a plainly wrong result.

1. No rigid prohibition on cross-examination (Ground 1). Arnold LJ rejected the appellant’s attempt to read Derby v Weldon as an inflexible rule. Exceptional cases can justify pre-trial cross-examination—but the threshold is high. Nugee LJ aligned broadly but emphasised that such occasions remain rare.
2. Failure to address “one hearing or two” (Ground 2). The judge never asked himself whether economy, fairness, and the overlap of issues required a consolidated trial. This was a manifestly material omission.
3. Significant factual overlap. Five strands show inseparability:
   • The credibility of Mr Hazlehurst (source of the disputed WhatsApps) depended on whether he in fact tipped illicit waste at the Quarry—core to Mold’s substantive case.
   • The so-called feud between Mr Hughes/O’Grady and Mr Holloway–Jacques, the alleged arsons, threats and takeover of Mold overlapped with duress, control, and shadow-director allegations pleaded in the underlying action.
   • Mold’s motive theory (that directors facing a £50 m claim fabricated messages accusing them of hiding assets) directly intersects with liability.
   • Evidence from the “Mold WhatsApp Group” and witness Steve Amos is vital to both sets of issues.
   • Expert evidence on mobile-phone data could not be ring-fenced; conclusions on deletions or second phones affect both the fraud allegation and underlying merits.
4. Resource economy & proportionality. A five-day, evidence-heavy satellite hearing would double costs, drain scarce court days, and force witnesses (including a neutral truck-driver) to testify twice. This offended CPR 1.1.
5. Incomplete evidential picture. Disclosure had not yet happened. Trying credibility without full documents risked injustice.
6. Procedural fairness to third parties. Non-parties accused of forgery (Hazlehurst, Collier) would otherwise be dragged into a separate trial, raising representation and cost issues.

3.3 The “Consolidation Principle” Stated

Although the Court stopped short of coining a label, the judgment crystallises a guiding rule:

“Where determination of a set-aside application would require oral evidence and cross-examination on facts that substantially overlap with issues for the final trial, the proper course is normally to hear the application at the trial; a stand-alone ‘mini-trial’ is exceptional and must be justified by clear, countervailing factors.”

3.4 Likely Impact

• Freezing Injunction Practice – Solicitors can expect stricter judicial scepticism toward requests for separate, evidential hearings to discharge injunctions. Parties should shape pleadings and evidence aware that challenges may wait until trial.
• Case-Management Appeals – The decision shows that the Court of Appeal will intervene if a judge fails to articulate the overlap analysis or to consider resource implications.
• Third-party witness protection – The reasoning underscores the need to protect non-parties from costly satellite litigation.
• Disclosure Timing – Judges are reminded that serious factual disputes rarely belong pre-disclosure.
• Strategic Behaviour – Defendants seeking to lift freezing orders must file promptly, particularise fraud allegations fully, and be prepared for the likelihood that the issue is parked to trial unless truly discrete.

4. Complex Concepts Simplified

Freezing Order (Mareva Injunction)

An interim court order restraining a defendant from dissipating assets up to a specified value, to preserve them for potential enforcement of a judgment.

Set-Aside / Discharge Application

A request that the court cancel an interim order, usually because requirements for granting it were not met or because the claimant breached the duty of full and frank disclosure.

Satellite Litigation

Ancillary or spin-off proceedings that run alongside the main dispute, often consuming disproportionate time and costs.

Case-Management Discretion

The broad authority of trial judges to organise procedures (timing, evidence, hearings) to secure a just, efficient resolution.

Good Arguable Case vs Serious Issue

Historically slight differences in thresholds for interim relief, now largely fused; both denote that the claim is not frivolous and merits a trial.

5. Conclusion

Mold Investments v Holloway does not eradicate the rare possibility of pre-trial cross-examination on freezing order challenges. Instead, it installs a clear Consolidation Principle: when the impugned evidence and the merits are entwined, the court should resist costly, duplicative mini-trials and roll the set-aside application into the main hearing. The decision harmonises older authorities (Derby v Weldon, Kazakhstan Kagazy) with practical, resource-based reasoning under the CPR, providing litigants and judges a structured way to balance fairness, efficiency, and judicial economy.

Practitioners should treat the judgment as a caution: if you allege fabrication, plead it early, particularise it fully, but expect to prove it at the one trial, not in a preliminary skirmish.