Optosafe Limited & Anor v John Mark Robertson [2025] EWHC 2733 (KB)

[2025] EWHC 2733 (KB)Case No KB-2024-000054
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/10/2025
Before
THE HON. MRS JUSTICE STEYN DBE
Between
(1) OPTOSAFE LIMITEDClaimants(2) BENJAMIN WILLIAM HOWARDClaimantJOHN MARK ROBERTSONDefendant
Jonathan Barnes KC and Gemma Mcneil-Walsh (instructed by Proskauer Rose (London) LLP) for ClaimantsThe Defendant appeared in person for in personHearing Hearing dates: 15 October 2025
Approved JudgmentThis judgment was handed down remotely at 12:00pm on 22 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HON. MRS JUSTICE STEYN DBE
[1]This is a claim for breach of contract (invoked by the first claimant) and harassment (brought by the second claimant on his own behalf and in a representative capacity). The claim is listed for trial on 11 and 12 November 2025.[2]I held a pre-trial review on 15 October 2025 at which I heard the claimants’ application dated 4 August 2025. The defendant had filed an application on 30 September 2025, seeking permission to make an application pursuant to paragraph 5 of the Limited Civil Restraint Order imposed by Jay J dated 4 March 2025. Jay J made an order dated 7 October 2025, granting the defendant permission to apply to rely on the witness statement of Laura Pearson, but otherwise refusing permission. Unfortunately, that order was only sealed on the morning of the PTR and so the defendant, who represented himself, was not ready to pursue it at the PTR. In those circumstances, I agreed to allow him time to put in written submissions in support of that application, and for the claimants to respond. By agreement, I have determined the defendant’s application on the papers.[3]This judgment addresses the following matters: i) The claimants’ application for an order that the defendant is prohibited by Part 7A of the Courts Act 2003 from cross-examining the second claimant in person; ii) The claimants’ application to strike out parts of the defendant’s trial witness statement; iii) The claimants’ application to strike out the defendant’s hearsay notice; and iv) The defendant’s application for permission to rely at trial on the witness statement of Ms Pearson. (1). Control of cross-examination[4]The claimants contend that s.85G of the Courts Act 2003 has the effect of prohibiting the defendant from cross-examining their only witness, the second claimant, Mr Howard. They contend that prohibition applies automatically because on 25 January 2024 Chamberlain J granted an interim injunction which, they submit, is an “on-notice protective injunction” within the meaning of s.85G and the relevant regulations.[5]Section 85G of the Courts Act 2003 provides, so far as relevant:
“(1) In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction. (2) In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force. … (4) In this section ‘protective injunction’ means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor. (5) For the purposes of this section, a protective injunction is an ‘on-notice’ protective injunction if- (a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied, or (b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.” (a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied, or (b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.”
[6]For the purposes of Part 7A of the Courts Act 2003, “civil proceedings” include “proceedings in the High Court” (save for two exceptions which are inapplicable). The interim injunction was undoubtedly “on-notice”. It was granted at a hearing on 25 January 2024 of which the claimants and defendant had notice (s.85G(5)(b)) and, although that is sufficient to make it an “on-notice” injunction, there was a hearing on 4 March 2025 at which the defendant’s application to vary or discharge the interim injunction was heard (s.85G(5)(a)). The question is whether it was a “protective injunction”.[7]The regulations made pursuant to s.85G(4) are The Prohibition of Cross-Examination in Person (Civil and Family Proceedings) Regulations 2022 (2022/568) (‘the Regulations’). For the purposes of s.85G(4), the “injunctions, orders and interdicts in Schedule 2 are protective injunctions”: regulation 3. Table 1 of Schedule 2 identifies protective injunctions and orders under the law of England and Wales: Protective injunctions (England and Wales) Statutory provision or other law (England and Wales) Injunction Common law Occupation order Sections 33, 35, 36, 37 or 38 of the Family Law Act 1996 Non-molestation order Section 42 of the Family Law Act 1996 Force marriage protection order or interim forced marriage protection order Section 63A of the Family Law Act 1996 Injunction Section 3A of the Protection from Harassment Act 1997 Restraining Order Section 5A of the Protection from Harassment Act 1997 Female genital mutilation protection order Paragraph 1 of Schedule 2 to the Female Genital Mutilation Act 2003 Sexual harm prevention order Section 103A of the Sexual Offences Act 2003 Service restraining order Section 229 of the Armed Forces Act 2006 Violent offender order Section 98 of the Criminal Justice and Immigration Act 2008 Domestic violence protection order Section 28 of the Crime and Security Act 2010 Stalking protection order or interim stalking protection order Section 1 or 5 of the Stalking Protection Act 2019 Criminal behaviour order Section 330 of the Sentencing Act 2020 Sexual harm prevention order Sections 343 and 345 of the Sentencing Act 202 Restraining order Sections 359 and 360 of the Sentencing Act 2020 Domestic abuse protection order Sections 28 or 31 of the Domestic Abuse Act 2021[8]The claimants contend that the interim injunction granted by Chamberlain J falls within the definition of a “protective injunction” either because it was granted pursuant to s.3A of the Protection from Harassment Act 1997 (‘the 1997 Act’) or because it is a “common law injunction”.[9]Sections 1(1) and 3(1)-(3) of the 1997 Act provide: “1(1) A person must not pursue a course of conduct –(a) which amounts to harassment of another, and(b) which he knows or ought to know amounts to harassment of the other.” “3(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment. (3) Where – (a) in such proceedings the High Court or the county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, the plaintiff may apply for the issue of a warrant for the arrest of the defendant.” (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.” (a) in such proceedings the High Court or the county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,[10]Sections 1(1A) and 3A of the 1997 Act provide: “1(1A) A person must not pursue a course of conduct –(a) which involves harassment of two or more persons, and(b) which he knows or ought to know amounts to harassment of those persons, and(c) by which he intends to persuade any person (whether or not one of those mentioned above) – (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do.” “3A(1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person (‘the relevant person’). (2) In such a case – (a) any person who is or may be a victim of the course of conduct in question, or (b) any person who is or may be a person falling within section 1(1A)(c), may apply to the High Court of the county court for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction.

(c) ,

[11]The Particulars of Claim which were before Chamberlain J when he made the interim injunction allege that the defendant “pursued a course of conduct amounting to harassment of C2 and those of whom his situation is representative, contrary to s1(1) of the Protection from Harassment Act 1997, as D at all times knew or ought to have known”. The claimants brought a claim pursuant to s.3 for breach of the statutory tort of harassment. There is no allegation in the Particulars of Claim of breach of s.1(1A) and the pleading does not address s.1(1A)(c). Sections 1(1A) and 3A were not relied on before Chamberlain J, nor referred to by him ([2024] EWHC 537 (KB)). It is clear that the interim injunction was not made pursuant to s.3A of the 1997 Act.[12]There is some force in the claimants’ contention that it is implausible that the omission of any express reference to s.1(1) of the 1997 Act is the result of a deliberate decision to exclude an injunction in harassment made with reference to s.1(1) from the protective effect of the Regulations. Certainly, the reason for the omission is unclear. Nevertheless, there is no basis on which I could read into table 1 of Schedule 2 a reference to section 1 and/or 3 of the 1997 Act, in circumstances where reference to those sections is omitted, in contrast to the express reference to sections 3A and 5A of the 1997 Act.[13]The claimants’ alternative argument is that this is a common law action for breach of statutory duty. They contend that s.1(1) imposes a statutory duty, breach of which is a common law tort. They refer to Lord Wright’s identification in London Passenger Transport Board v Upson & anr [1949] AC 155 at 168 of the distinction between common law rights arising from breach of a statutory duty on the one hand and, in that case, a claim for negligence on the other.[14]I reject the claimants’ analysis. As the authors of Duncan and Neil on defamation and other media and communication claims (6th ed., 2025) correctly observe at §30.01, citing s.3, the 1997 Act “created a new tort of harassment”. Judges of the Media and Communications List have, on occasions too numerous to mention, referred to the tort created by s.3 as the “statutory tort of harassment”. It was in the context of the claim brought pursuant to that statutory tort, as well as the claim for breach of contract, that interim relief was granted.[15]I recognise that, as Lord Reed PSC, Lord Briggs JSC and Lord Kitchin observed in Wolverhampton City Council v London Gypsies and Travellers [2024] AC 983, at [17]:
“The injunction is equitable in origin, and remains so despite its statutory confirmation. The power of courts with equitable jurisdiction to grant injunctions is, subject to any relevant statutory restrictions, unlimited: Spry, Equitable Remedies, 9th ed (2014) … The breadth of the court’s power is reflected in the terms of section 37(1) of the 1981 Act, which states that: ‘The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so.’ As Lord Scott explained in Fourie v Le Roux (ibid), that provision, like its statutory predecessors, merely confirm and restates the power of the courts to grant injunctions which existed before the Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66) (‘the 1873 Act’) and still exists. That power was transferred to the High Court by section 16 of the 1873 Act and has been preserved by section 18(2) of the Supreme Court of Judicature (Consolidation) Act 1925 and section 19(2)(b) of the 1981 Act.”
[16]In my judgment, the equitable origin of the injunction does not have the effect that an injunction imposed in a claim for breach of the statutory tort of harassment created by s.3 is a “common law injunction” for the purposes of table 1 of Schedule 2 to the Regulations. Counsel for the claimants, Mr Barnes KC, did not contend otherwise. The automatic prohibition on cross-examining in person imposed by s.85G (read with the Regulations), which applies to the protected person as well as the person against whom a protective injunction has been made, has a significant impact on the ability of those persons to represent themselves in proceedings, which militates against such a broad reading of the term “common law injunction”.[17]Moreover, I note that s.85I of the Courts Act 2003 gives the court the power to give a direction prohibiting a party to the proceedings from cross-examining (or continuing to cross-examine) a witness if there is no automatic prohibition (ss.85F to 85H being inapplicable) and:
“it appears to the court that – (i) the quality condition or the significant distress condition is met, and (ii) it would not be contrary to the interests of justice to give the direction.”
[18]The circumstances in which those conditions are met are defined in s.85I(2) and (3). The claimants have not, at this stage, sought to rely on s.85I. But it is clear that it provides a power to prohibit cross-examination that may, potentially, be available to the trial judge. In any event, the court has extensive power pursuant to CPR 32.1(3), and in accordance with the overriding objective, to control the evidence and limit cross-examination. However, it is also fair to note that the issues are limited by reference to the pleaded cases, the time for cross-examination of Mr Howard proposed by the defendant in his suggested trial timetable, namely one hour, is not excessive. (2). Application to strike out parts of the defendant’s trial witness statement[19]The first claimant’s pleaded case is for breach of contract. Specifically, it is alleged that the defendant has breached: i) Clause 23.1.6 of the Service Agreement entered into by the first claimant and the defendant on 31 July 2020 by which the defendant covenanted that he would not “at any time after Termination, represent himself as connected with the Company or any Group Company in any Capacity other than as a former employee, or use any registered business names or trading names associated with the Company or any Group Company” (‘the non-representation term’), by incorporating a company called Sitex Orbis Fraud Investigations Limited and by referring to himself in terms such as “John MR Optosafe Robertson”; and ii) Clause 12.4 of the Settlement Agreement entered into by the first claimant and the defendant on 4 June 2021 by which the defendant agreed: “You shall not make any adverse or derogatory comment about us, or our officers, employees or workers and you shall not do anything which shall, or may, bring us or our officers, employees or workers into disrepute. We shall use reasonable endeavours to ensure that our officers, employees and workers shall not make any adverse or derogatory comment about you or do anything that shall, or may, bring you into disrepute. This clause is subject to clause 12.5, clause 12.6 and clause 12.7.” (‘The non-disparagement term’). It is alleged the defendant breached the non-disparagement term by a post published on LinkedIn on 4 February 2023, and thereafter by the publications which are also pleaded as the course of conduct in harassment.[20]So far as relevant to the breach of contract claim, the Amended Defence pleads: i) A bare denial of the claim in its entirety (2.1, paragraph 1) and a request for the first claimant’s claim to be dismissed (2.1, paragraph 14); and ii) That the first claimant’s legal action “constitutes an abuse of process and attempt to pervert the course of justice by seeking to suppress evidence and obstruct the ongoing law enforcement investigations through intimidation and legal threats” and that the purpose of the claim is to silence the defendant (2.1, paragraphs 4 and 5).[21]In the Amended Defence the defendant also “reserves his right to bring counterclaims” (2.1, paragraph 14) and pleads: “I reserve the right to allege that the settlement agreement was obtained by misrepresentation, as referenced in paragraphs 10-13 of the draft Counterclaim. I acknowledge that I need to properly particularise this allegation and will do so in accordance with the Court’s order” (3.1 and 6.1). However, the defendant has no counterclaim, having been refused permission to bring any counterclaim in the terms in which he sought to plead it, and so this part of the Amended Defence has fallen away.[22]It follows that there is no positive defence to the first claimant’s breach of contract claim. The defendant has put the first claimant to proof of its claim.[23]The second claimant’s pleaded claim is in harassment. The second claimant alleged that the defendant has pursued a course of conduct amounting to harassment of the second claimant and those of whom his situation is representative, between 4 February 2023 and 10 January 2024, contrary to s.1(1) of the 1997 Act. The particulars of harassment are pleaded at paragraphs 22.1 to 22.60 of the Particulars of Claim.[24]So far as relevant to the harassment claim, the Amended Defence pleads: i) A bare denial of the claim in its entirety (2.1, paragraph 1 and 3) and a request for the second claimant’s claim to be dismissed (2.1, paragraph 14); and ii) “that far from constituting ‘harassment’, his communications and actions were for legitimate purposes, namely: (a) To expose serious criminal activities being undertaken by C1, C2 and other associated individuals and entities” (2.1, paragraph 2). The Amended Defence provides no particulars of the alleged criminal activities. But the defendant has pleaded (i) that since September 2023 there has been “an ongoing investigation by the Security Industry Authority into these criminal activities” (‘the SIA investigation’) for which he has been the lead source; and that (ii) on 24 January 2024 Police Scotland commenced an ongoing investigation into “organised criminal activities by C1, C2 and others” (‘the Police Scotland investigation’), for which he is a key witness and to which he provides regular updates. iii) “that far from constituting ‘harassment’, his communications and actions were for legitimate purposes, namely: (c) … to encourage whistleblowers to come forward without fear of violence or intimidation by C1, C2 and those associated with them, to assist” the SIA investigation and the Police Scotland investigation (2.1, paragraph 2). iv) “that his communications constituted lawful investigative journalism” (2.1, paragraph 3); v) that his communications constituted “the publication of matters of public interest relating to serious criminal allegations” (2.1, paragraph 3); vi) That the second claimant’s harassment claim “constitutes an abuse of process and attempt to pervert the course of justice by seeking to suppress evidence and obstruct the ongoing law enforcement investigations through intimidation and legal threats” and that the purpose of the claim is to silence the defendant (2.1, paragraphs 4 and 5). vii) That his communications “did not amount to harassment” as, in “pursuing legitimate complaints, exposure of alleged criminality and legal remedies for significant harms suffered”, “no conduct was used to alarm the claimants” (2.1, paragraph 12).[25]In addition, the defendant has referred to a proposed counterclaim for misuse of private information (4.1 and 6.1), but in the absence of any counterclaim this part of the Amended Defence has fallen away.[26]It follows that the defendant positively contends, in response to the harassment claim: i) that his conduct as pleaded at paragraphs 22.1 to 22.60 of the Particulars of Claim did not amount to harassment within the meaning of ss.1(1) and 7(2) of the 1997 Act because it was not used to alarm; ii) he relies on the s.1(3)(a) defence that his course of conduct was pursued for the purpose of preventing or detecting crime (namely the activities which were the subject of the SIA investigation and the Police Scotland investigation); and iii) he relies on the s.1(3)(c) defence that in the particular circumstances the pursuit of the course of conduct was reasonable because it was designed to encourage whistleblowers to come forward to the SIA and Police Scotland, and it was investigative journalism in respect of serious criminal matters which were a matter of public interest.[27]The defendant’s trial witness statement is 21-pages long. The paragraphs are not numbered, but it is divided into 16 parts (numbered 1-13, with the addition of part 2.5 and two parts each being numbered 11 and 12). The claimants apply for an order striking out in their entirety the first 13 parts (i.e. 1-11, including 2.5 and both parts numbered 11) and the final part (part 13), as well as some of the evidence given each of the parts numbered 12. Leaving aside those parts of the second part 12 which are purely duplicative of the first part 12, there is only about a page of the defendant’s statement to which the claimants do not object.[28]The ground on which the claimants based their submission is that the parts they seek to have struck out are(a) irrelevant background history and the history of the proceedings;(b) unpleaded adverse allegations as to the claimants’ conduct;(c) a counterclaim for misuse of private information for which the defendant has been refused permission; and(d) various other points which are unparticularised and unheralded in the Amended Defence.[29]The defendant accepts that the entirety of part 13 (headed “The High Court Claim and My Defence (2024-2025)”) should be deleted, given that he does not have a counterclaim. Accordingly, it is unnecessary for me to address that part of his statement.[30]In considering the question of admissibility of evidence I have applied the principles identified by Warby J in Aven & ors v Orbis Business Intelligence Ltd [2020] EWHC 474 (QB) at [9]-[17]. In a non-jury case such as this, objections are often left to be resolved at trial. An editing process may be disproportionate and inconsistent with the overriding objective. But it is not exceptional for objections to be raised and resolved before trial, and there can be good reasons for doing so.[31]CPR 32.4(1) provides:
“A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.”
That means evidence of fact which is relevant to the issues that arise from the statements of case, and which the witness is able to give.[32]Paragraph 10.62(3) of the King’s Bench Guide states that “A witness statement should be as concise as the circumstances allow; inadmissible or irrelevant material should not be included…”[33]In my judgment, in light of the point reached in the proceedings and bearing in mind that I am not the trial judge, it is appropriate to take a generous view of what might be relevant. Although, understandably, the claimants criticise the lack of particulars of the “criminal activities” referred to in the Amended Defence, I bear in mind that the claimants have not made a request for further particulars. Equally, while the claimants contend with some force that the matters relied on are not a defence to the contract claim and are incapable of giving rise to a defence to the harassment claim, I remind myself that this is not an application for summary judgment or to strike out the defence (or any part thereof).[34]Nevertheless, even taking such a generous approach, I conclude that the following parts of the defendant’s witness statement should be struck out: i) In part 2, headed “Orbis’s Acquisition of Optosafe (31 July 2020 – ‘Project Sphere’)”, the words from “That offer included express assurances …” (in the penultimate paragraph of part 2) to “underpin my eventual resignation” (i.e. to the end of part 2). Reason: This part of the statement addresses an allegation of contractual misrepresentation. As explained above, there is no such pleaded allegation in the contract claim. Nor is any such allegation of any relevance to the issues in the harassment claim. It has no conceivable impact on whether the defendant’s conduct constituted harassment. Nor is it, on any view, alleged criminal activity. Although I consider that a s.1(3)(c) defence has been raised, the circumstances relied on to establish that the course of conduct was reasonable are all connected to the alleged criminal matters. Applying the generous approach to which I have referred, I will not strike out the background matters in part 1 or part 2 (other than to the extent identified above). I note that the witness statements of Mr Howard also address the background. ii) In part 2.5, headed “Concealment of the George McMillan Incident and Subcontractor Murder”, the whole of the final paragraph (i.e. from “Had I known that Orbis” to “Orbis’s senior leadership culture”). Reason: This part of the statement addresses an alleged breach of trust and candour in the contractual relationship between the defendant and the first claimant. There is no such pleaded allegation in respect of the contract claim and for the same reasons as given in respect (i) above, it is of no relevance to the pleaded defence to the harassment claim. Applying the generous approach I have identified, I have allowed most of this part to remain. It appears to address one of the criminal matters that was the subject of the Police Scotland investigation and Mr Howard has identified it as one of the matters he anticipated the Amended Defence was referring to, albeit without particularisation. iii) The whole of Part 3, headed “Immediate Breakdown of Trust and Abandonment of Pre-Acquisition Assurances (August 2020)”. Reason: This part of the statement focuses on the way the defendant was treated in his employment relationship, and on alleged breaches of alleged assurances and the duty of trust. The defendant has not pleaded any allegation of breach of contract by the claimants, and the alleged breaches are of no conceivable relevance to the issues in the harassment claim. Parts 4 and 5 appear to be matters that are said to have been the subject of the SIA investigation, and so conceivably relevant to the harassment claim. Taking the generous approach I have identified, I have allowed them to remain in the defendant’s statement for trial. iv) In part 6, headed “Escalation of Concerns and Internal Resistance (December 2020 – February 2021)”, the whole of the 4th to 7th (and final) paragraphs (i.e. from “Despite being the Managing Director” to “a silent passenger to wrongdoing”). Reason: This part of the statement addresses the defendant’s allegations that, in his employment, he was side-lined (as was Laura Pearson), reduced to “operational execution”, misled into signing the service agreement and constructively dismissed. On the pleadings, none of these matters are in issue in the contractual claim. Nor are they of any relevance to the issues raised by the pleadings in the harassment claim. I note there is a reference to “concealment of material regulatory and criminal risks” in the final paragraph of this part, but it is a bare reference in a paragraph which is addressed to the breakdown of the contractual relationship. Even taking a generous view of admissibility, it is irrelevant to the issues pleaded. Applying the generous approach I have identified, I have allowed the first three paragraphs of part 6, and the whole of part 7, to remain in, on the basis that they appear to address matters that have been the subject of the Police Scotland investigation and/or the SIA investigation pleaded by the defendant in his defence to the harassment claim. v) In part 8, headed “My Resignation and Threat of ‘Bad Leaver’ Treatment (March – May 2021)”, the following passages fall to be struck out:
“My professional judgment, autonomy, and integrity had been systematically undermined by the very people who had induced me to stay under false pretences.” “I was excluded from due diligence discussions, my role was hollowed out, and I was left with no access to the information or authority necessary to discharge my responsibilities.”
The whole of the paragraph beginning “Shortly after that meeting”. The words “- and in my view, amounted to constructive dismissal”. The words from “- but he failed to disclose that Mr Other was” to “confirmed the depth of the misrepresentation”. The words from “It was made clear that this was a line I would not cross” to the end of the part (i.e. to “and released me from any obligation to remain silent”). Reason: The identified parts of the statement focus on alleged breaches of contract and alleged contractual misrepresentations by the claimants, such that the defendant claims to have been constructively dismissed. As I have said, none of those matters are of any conceivable relevance to the issues arising from the pleadings in the contract or harassment claims. Applying the generous approach I have identified, I have allowed some of this part to remain in as the defendant’s account of the factual background. vi) In part 9, headed “Settlement Agreement and Share Buyback (June 2021)”, from the second paragraph (beginning “Under the settlement agreement”) to the end of the part (ending “I no longer consider myself bound by the terms”). Reason: The terms of the Settlement Agreement are not in issue. The defendant’s contention in these paragraphs that the claimants are in repudiatory breach, and that he is no longer bound by any confidentiality or non-disparagement terms, do not go to any pleaded issue. As I have said, there is no positive case raised in the defence of the contract claim, only a bare denial. And none of the matters alleged in the section of part 9 I have identified go to any issues raised on the pleadings in the harassment claim. I have allowed the first paragraph of this part to remain in as the defendant’s account of the factual background. vii) In part 10: The words from “…even as I have been excluded from meetings” to “ten days earlier”; The three paragraphs from “Crucially, Synova’s investment” to “would imperil the deal”; The sentence “But the deliberate misrepresentation” to “or the sale process”; and In the final sentence of this part, the words “counterclaim and”. Reason: I have taken a cautious approach, and one which is generous to the defendant, in not striking out the whole of this part. The parts I have identified for strike out go only to the defendant’s unpleaded allegations of a breach of contract by his employer and alleged failures to keep him apprised of matters. I have refrained from striking out those parts of the defendant’s evidence regarding the Synova transaction which it appears he may contend were considered in one of the criminal investigations he has pleaded in defence of the harassment claim. viii) The whole of part 11 (first) headed “Discovery of the HIV Disclosure and Breakdown of Confidentiality (June 2021 – April 2022)” and part 11 (second) headed “Public Exposure, Social Fallout, and Targeted Violence (2021-2022)” Reason: The defendant has no counterclaim for misuse of private information. Nor has he raised any positive case in response to the contract claim. This part of the defendant’s statement does not allege any criminal activity, nor that any of these matters were considered in the criminal investigations, and it is not relevant to his pleaded defence of the harassment claim. In part 11, the defendant alleges breach of trust, breach of the General Data Protection Regulation, breach of confidence, unlawful discrimination under the Equality Act 2010 and misuse of private information, none of which is of any relevance to the pleaded issues in respect of the claimants’ contract and harassment claims. The second part headed part 11 addresses the alleged consequences of those unpleaded counterclaims. ix) Within Part 12 (first), headed “Public Disclosures and Whistleblowing Communications 2023”, the claimants take objection only to two passages. It follows from my conclusion in respect of part 11 that I agree the first of these two passages (which follows on from the (non-existent) misuse of private information counterclaim) is of no conceivable relevance and should be struck out. It reads:
“On 23 August 2023, I publicly announced that I was becoming an HIV awareness advocate – in part because of what I had experienced. I explained that my decision to speak out was not just about personal justice, but about fighting stigma and challenging corporate cultures that treat human beings as expendable.”
Taking the approach I have identified, I will not strike out the second passage in which the defendant gives his view of the claimants’ action in bringing a claim against him. x) The same paragraph that I have said should be struck out where it first appears in part 12 (first), quoted in paragraph 39(ix) above, also requires to be struck out where it is duplicated in part 12 (second). I further note that the first seven paragraphs (include the paragraph quoted above) of part 12 (second) are entirely duplicative of those paragraphs as they appear in part 12 (first). While the claimants do not take objection on grounds of duplication, in circumstances where the defendant will be required to re-file an amended version of his witness statement, it would obviously be beneficial for the parties and the court if those duplicative paragraphs were removed. xi) The claimants seek to have struck out the three paragraphs from “Rather than address these matters” to “and punish me for speaking up”. I note that the defendant is wrong characterise the claim as one in libel Nevertheless, applying the approach to striking out that I have identified, I will refrain from striking out these paragraphs, save to the extent that the sentence “In my view, this was not a bone fide attempt to resolve the issues - it was a strategic lawsuit against public participation (SLAPP)” should be struck out as irrelevant. The defendant’s view that it is a SLAPP is meritless, but more importantly is of no relevance in circumstances where the claim has not been found to be a SLAPP, nor has any application been made for it to be declared a SLAPP.[35]I emphasise that the admissibility and relevance of the defendant’s witness statement, insofar as I have not struck it out, will be a matter for the trial judge. The fact that I have allowed material to remain in, at this stage, does not preclude the claimants from submitting that such evidence is irrelevant or inadmissible, or the trial judge from so concluding.[36]Accordingly, I will make an order requiring the defendant to re-file his statement with those parts of his current statement that I have identified above removed. At the same time, it would be of assistance to the court and the parties if the defendant takes the opportunity to ensure that each paragraph of his statement is consecutively numbered (see paragraph 10.62(5) of the King’s Bench Guide which states that “Witness statements should be written in consecutive numbered paragraphs”). (3). Application to strike out the defendant’s hearsay notice[37]The defendant served a hearsay notice pursuant to s.2 of the Civil Evidence Act 1995 and CPR 33.2. The “witness” is identified in the hearsay notice as Jason Gilchrist, and the defendant has referred to the document as Mr Gilchrist’s witness statement. In fact, the hearsay notice contains the defendant’s evidence regarding matters that he says were conveyed directly to him by Mr Gilchrist between 2021 and 2023. The hearsay notice has been written by the defendant and it is signed (with a statement of truth) by him. It was duly filed in time and no objection is taken to the form of the hearsay notice.[38]The claimant’s objection to the defendant giving this evidence is not that it is hearsay (which goes to weight) but that it is irrelevant to the issues raised by the pleadings.[39]In the Hearsay Notice itself, the defendant identifies that this hearsay evidence is relevant to counterclaims for misuse of private information, for defamation and for conspiracy to injure by unlawful means (paras 3.2, 3.3 and 3.4). As the defendant has no such counterclaims, those reasons for contending that the evidence is relevant all fall away. The remaining two reasons relied on by the defendant for saying the evidence is relevant are in the following terms:
“3.1 Defence to the Claimants’ Allegation of Harassment • Demonstrates that the Defendant’s communications were reactive and proportionate, responding to an ongoing campaign of reputational harm and private intrusion. • Shows that the Claimants and their associates made false, damaging statements to employees and third parties about the Defendant’s mental health and credibility. • Provides contemporaneous context to the Defendant’s conduct – namely, that it was motivated by exposure to retaliatory treatment, not malice. … 3.5 Whistleblower Victimisation and Protected Disclosures • Mr Howard’s direct threats – conditional on the Defendant ceasing LinkedIn disclosures – clearly demonstrate retaliation against protected disclosures. • Shows that the Defendant was targeted specifically for raising concerns about fraud, regulatory non-compliance, and misconduct – matters qualifying under section 43B of the Employment Rights Act 1996. • The evidence supports the Defendant’s contention that his treatment by the Claimants constitutes whistleblower detriment, both during and after the employment relationship.”
[40]Part A (paragraphs 2.1-2.4) of the Hearsay Notice addresses disclosure of the defendant’s HIV status. That is an issue which was raised by the defendant’s proposed counterclaim for misuse of private information but, as I have said when addressing the application to strike out part 11 of the defendant’s witness statement, he has no such counterclaim. Nor any positive pleaded case in response to the contract claim to which this matter could be of any relevance. The nature of the defence to the harassment claim, as identified above, is such that this part of the Hearsay Notice is wholly irrelevant to the pleaded issues. It is clear from the Hearsay Notice that the defendant sought to adduce this evidence at a time when he hoped to be able to bring a counterclaim for misuse of private information, and that is the only reason for contending it is relevant. As that has fallen away, Part A is irrelevant.[41]Part B (paragraphs 2.5-2.6) of the Hearsay Notice concerns alleged defamatory statements, said to have been made about the defendant by the first claimant’s employees. It is said these statements were part of a coordinated campaign to undermine his credibility, suppress discussion of his whistleblowing activity and discourage staff from supporting or corroborating his disclosures. The primary reason given in the Hearsay Notice for contending this evidence is relevant was that it goes to a counterclaim for defamation. That reason has fallen away: there is no such counterclaim. This evidence is obviously irrelevant to the pleaded issues in the contract claim. It is plainly of no relevance to the question whether the course of conduct constituted harassment, nor to the s.1(3)(a) defence. The only real question is whether it is conceivably of any relevance to that part of the s.1(3)(c) defence by which the defendant contends that his conduct was reasonable because it was designed to encourage whistleblowers to come forward. But even applying the same generous approach to striking out as I have identified in respect of the defendant’s own statement, this evidence says nothing about the defendant’s purpose in pursuing his course of conduct. Therefore, Part B also falls to be struck out as irrelevant.[42]Part C addresses three alleged telephone conversations between Mr Howard and Mr Gilchrist in which Mr Howard is said to have made admissions about the claimants’ “conduct and strategic intent”. Paragraphs 2.8 to 2.12, concerning the first two calls, are of no relevance to the pleaded issues, as I have identified them above. Paragraphs 2.13 to 2.17 address the third telephone conversation in which Mr Howard is said to have addressed “the ongoing criminal investigation involving Mr Louis Fordham’s daughter”. I consider that these five paragraphs of Part C may be relevant to the pleaded issues, the focus of the Amended Defence on alleged criminal activity and investigations, of which this may be part. Accordingly, paragraphs 2.8-2.12 of Part C fall to be strike out but I will refrain from striking out paragraphs 2.7 or 2.13 to 2.17.[43]The remainder of the Hearsay Notice addresses relevance, weight and procedural compliance. It does not contain any evidence and so, in circumstances where the defendant may rely at trial on part of the evidence he has given in the Hearsay Notice, there is no need for any part of his submissions regarding that evidence to be struck out.[44]Accordingly, I will make an order striking out Part A (paragraphs 2.1-.24), Part B (paragraphs 2.5-2.6) and, within Part C, paragraphs 2.8-2.12. (4). Defendant’s application to rely on the statement of Laura Pearson[45]The defendant, who is subject to a limited civil restraint order (‘LCRO’), filed an application on 28 September 2025, supported by a witness statement, seeking permission to rely on the witness statement of Ms Laura Pearson (or to serve a witness summary pursuant to CPR 32.9) and permission to issue a witness summons under CPR part 34.2 against Mr Other and Mr Wilcock. By an order dated 7 October 2025 (sealed on 15 October 2025) the defendant was granted permission to apply in relation to the witness statement of Ms Pearson but otherwise refused permission.[46]Accordingly, the defendant now applies to rely on the witness statement of Ms Pearson. For the purposes of considering this application I assume – as the claimants have done – that the application is to be able to file and serve the statement, with a view to calling Ms Pearson in the usual way, pursuant to CPR 32.4 and 32.5.[47]The first issue that arises is that the defendant requires relief from sanction. The Order of Master Armstrong made at a costs and case management hearing on 24 March 2024 (and sealed on 2 April 2025), includes the following[48]It is common ground that no witness statement for Ms Pearson featured in the exchange of signed statements of witnesses of fact pursuant to paragraph 6 of the Order of Master Armstrong. The defendant had previously served Ms Pearson’s statement, which is dated 2 March 2025, on the claimants in early March 2025, but that was for a purpose other than trial.[49]CPR 32.10 provides:
“If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.”
[50]The prohibition imposed by CPR 32.10 on calling a witness whose statement has not been served within the specified time amounts to a “sanction” for the purposes of CPR 3.8(1), and so the requirement to apply for relief from sanction in accordance with CPR 3.9 and the well-known test in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 applies. Such an application for relief is required to be supported by evidence: CPR 3.9.[51]The defendant did not seek relief from sanction in his application notice dated 25 September 2025 or the statement he filed in support of it. He seeks such relief in his written submissions in support of the application.[52]The breach is serious. The defendant applied for permission to make this application three months after the deadline for exchange of statements had passed, with a view to making the application more than two weeks later at the pre-trial review on 15 October 2025. The defendant first sought relief from sanction in his written submissions, filed less than four weeks prior to the first day of the trial, which is set to begin on 11 November 2025.[53]The defendant proposes that the claimants should be given 7 days to file reply evidence, and he submits that the breach is not serious because the claimants have “ample time” to respond prior to the trial, and because they had seen Ms Pearson’s statement in March. I do not accept that the breach is rendered significantly less serious by the fact that the claimants had previously seen the statement. It had not been served on them as a trial statement and so, unsurprisingly, they perceived it as irrelevant to the litigation and ignored it. Nor do I accept that there is “ample time”. On the contrary, the trial is less than three weeks away, the trial bundle is required to be agreed by 30 October (i.e. in 8 days), and skeleton arguments are due to be exchanged on 3 November. If the claimants were to be given permission to file reply evidence, that would involve them engaging in preparing evidence at time when the parties should be engaged in the final preparations for the trial.[54]The second stage involves considering why the default occurred. As I have said, the defendant has not served evidence addressing this point. In his written submissions he gives the reason for default as being that:
“Ms Pearson only recently agreed to provide a statement, having previously been fearful of repercussions from the Claimants, a fear which her evidence at §30 of her statement demonstrates is well-founded.”
[55]I do not accept that this is an accurate account of the reason why the default occurred. The defendant had included Ms Pearson’s name in his Directions Questionnaire filed on 31 October 2024, indicating he was at that stage considering proving a statement from her for trial. On its face, the statement he has provided purports to have been made by Ms Pearson and signed by her on 2 March 2025. Her agreement to provide a statement cannot have been “recent”, as it must have been prior to the point at which she in fact provided the defendant with her statement. It follows that I have been given no explanation, or at least no coherent explanation, for this serious default.[56]The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application “including the need—(a) for litigation to be conducted efficiently and at proportionate cost; and(b) to enforce compliance with rules, practice directions and orders.”[57]The defendant submits that Ms Pearson’s evidence is of high probative value and central relevance to his statutory defences to the harassment claim, and to the court’s assessment of the credibility of the claimants’ only witness, Mr Howard, which the defendant seeks to put in issue. Whereas the claimants submit that Ms Pearson’s evidence should, irrespective of the delay, be struck out as irrelevant.[58]In my judgment, bearing in mind the lack of any proper explanation for the delay, and considering the degree to which the statement of Ms Pearson is of any conceivable relevance, in all the circumstances, relief from sanction should be refused. Ms Pearson’s statement includes passages regarding the disclosure of the defendant’s HIV status which I have already ruled is irrelevant. It includes evidence regarding a formal grievance that Ms Pearson has raised which is of no assistance in determining the trial issues. While I have allowed the defendant’s evidence regarding a murder committed by a subcontractor to remain in, Ms Pearson’s evidence on that topic adds nothing of any real value. Equally, while I have allowed the defendant’s evidence regarding alleged financial irregularities to remain in, it cannot be said that Ms Pearson’s evidence regarding alleged events in November and December 2020, and September 2021, is important evidence, still less that it is central, given that the defendant’s course of conduct from February 2023 involved posting on LinkedIn and sending direct emails to the second claimant and those whose position he representatives. The course of conduct did not involve taking steps to involve any legal or regulatory authorities, with a view to preventing or detecting crime.[59]Accordingly, the defendant’s application for permission to rely on Ms Pearson’s statement is refused.

order

“WITNESS STATEMENTS OF FACT 6. The parties do exchange signed statements of witnesses of fact by 30 June 2025. Any notices under the Civil Evidence Act are to be served by the same date.”

Cited in 1 later judgment