Optosafe Limited & Anor v John Mark Robertson

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.

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.

This judgment addresses the following matters:

Control of cross-examination

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.

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.”

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”.

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:

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”.

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.”

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.

(3)

Section 3(3) to (9) apply in relation to an injunction granted under subsection (2) above as they apply in relation to an injunction granted as mentioned in section 3(3)(a).”

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.

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.

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.

I reject the claimants’ analysis. As the authors of Duncan and Neil on defamation and other media and communication claims (6^th 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.

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.”

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”.

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.”

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.

Application to strike out parts of the defendant’s trial witness statement

The first claimant’s pleaded case is for breach of contract. Specifically, it is alleged that the defendant has breached:

So far as relevant to the breach of contract claim, the Amended Defence pleads:

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.

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.

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.

So far as relevant to the harassment claim, the Amended Defence pleads:

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.

It follows that the defendant positively contends, in response to the harassment claim:

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.

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.

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.

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.

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.

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…”

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).

Nevertheless, even taking such a generous approach, I conclude that the following parts of the defendant’s witness statement should be struck out:

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.

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”).

Application to strike out the defendant’s hearsay notice

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.

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.

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.”

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.

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.

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.

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.

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.

Defendant’s application to rely on the statement of Laura Pearson

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.

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.

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 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.”

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.

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.”

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.

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.

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.

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.

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.”

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.

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.”

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.

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.

Accordingly, the defendant’s application for permission to rely on Ms Pearson’s statement is refused.