Raja v Van Hoogstraten & Ors [2005] EWCA Civ 1180

Case No A3/2005/1638/1640/1767/1639[2005] EWCA Civ 1180
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
Venue Royal Courts of JusticeDate Friday, 23rd September 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE CHADWICK
Between
RAJA (representing the interests of the Estate of the late Mohammed Sabir Raja)Respondent-v-
Between
NICHOLAS VAN HOOGSTRATEN & ORSAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THERE WAS NO ATTENDANCE FROM ANY PARTY
J U D G M E N TFriday, 23rd September 2005

LORD JUSTICE CHADWICK:

[1]There are listed for hearing today in this court four applications in litigation between the estate of the late Mohammed Sabir Raja and Mr Nicholas Van Hoogstraten. The applications are for permission to appeal from(i) an order of David Richards J made on 22nd March 2005,(ii) an order of Lightman J made on 12th May 2005,(iii) an order of Etherton J made on 23rd June 2005, and(iv) a further order of Lightman J made on 29th July.[2]The background to the litigation is familiar. It can be found in a judgment which I delivered on an appeal earlier this year. It is not necessary to rehearse the facts. The outstanding issue in the present context is whether Mr Van Hoogstraten should be permitted to continue to advance certain contentions in the proceedings having regard to the orders made by the judges to whom I have referred.[3]Following upon those orders there are preliminary issues fixed for hearing in the trial court on 14th November 2005. The trial of those issues is, at the least, likely to be affected by a successful outcome of any appeals for which permission is granted. It is important, therefore, that these applications should be heard with expedition; and, if permission is granted, the appeals themselves should be heard before the date fixed for the trial.[4]It is against that background that the Civil Appeals Office wrote to Mr Van Hoogstraten - who is now acting in person - to inform him that his applications for permission would be heard today, 23rd September 2005. That letter is dated 19th August 2005. It is addressed to Mr Van Hoogstraten at The Courtlands Hotel, The Drive, Hove, East Sussex - that being the address which he has given for correspondence from the court.[5]The address which Mr Van Hoogstraten gave on his appellant's notice gives a postcode - so far as it can be distinguished on the photocopy - as EN3 3JE. "EN" is not the appropriate postcode for Brighton. That, no doubt, was picked up in the Civil Appeals Office - or the code was taken from some other document - because the letter of 19th August 2005 was sent to Mr Van Hoogstraten at the address which I have indicated with the postcode BN3 3JE. "BN" is the appropriate postcode for Brighton.[6]I mention that detail because the court received, on 9th September 2005, a letter from Ms Caroline Williams. In that letter she states that Mr Van Hoogstraten is the father of her two children. She says that she has the letter of 19th August 2005 addressed to Mr Van Hoogstraten; and she goes on:
"This [the letter of 19th August] only arrived on Monday as it had been wrongly sent to the Enfield sorting office. The postcode here is BN3 not EN3."
[7]It is curious that a letter which is addressed, on its face, with the postcode BN3 should have been sent to the Enfield sorting office at EN3; and it is curious that EN3 appears to be the postcode given on the appellant's notice. Be that as it may, there was obvious concern, when the letter of 8th September was received, that the earlier letter of 19th August had not reached Mr Van Hoogstraten at the address which he had given.[8]The difficulty for the court was that Mrs Williams does not herself write from The Courtlands Hotel, The Drive, Hove, and she is not a person to whom, so far as the court is aware, Mr Van Hoogstraten has given any power of attorney or other indication that she represents him in this litigation - even as a channel of communication. Her letter, which went on to assert that the office should only have arranged a date after consultation, and that the date arranged should be vacated and a check made with her before fixing a new date, could not be taken as necessarily expressing Mr Van Hoogstraten's wishes.[9]The letter asserts that Mr Van Hoogstraten will not arrive back in this country until 25th September 2005 - that is Sunday - and so will not be here today. In the light of that letter, and because it was impossible to be confident that the letter was written with the knowledge and authority of Mr Van Hoogstraten, I directed that this appeal should remain listed, notwithstanding that he might well not appear today.[10]Following that direction, which was sent to Mrs Williams by letter dated 16th September, the court received a fax of a letter, dated 19th September, apparently signed by Mr Van Hoogstraten and from The Courtlands Hotel address. The letter was in response to a fax sent to him in Zimbabwe on 16th September. It confirmed that the letter of 8th September was approved and factually states the position. It is in these terms:
"We are in the vacation period and these applications are not vacation business and should not have been set down without my being able to attend. I shall be back in the UK from Monday 26th."
[11]In those circumstances - Mr Van Hoogstraten not appearing today - the court has to consider whether to proceed with the applications for permission to appeal in his absence. In my view it would not be sensible to do so. It is quite plain from the correspondence that there is some doubt - and I put it no higher than that - that the letter of August 2005 may not have reached Mr Van Hoogstraten at the time that it was intended to reach him - that is to say, within the few days after that date - and it is plain that, if the court were to proceed today, it would be faced with a submission from Mr Van Hoogstraten that he had not been given adequate notice. It would also, it seems, be faced with an argument that this hearing should not take place in the vacation.[12]The second of those arguments could be disposed of shortly. It is not for Mr Van Hoogstraten to dictate to the court whether matters need to be heard in the vacation or not. This, for obvious reasons, is a case in which these applications need to be heard sooner rather than later. Further, it is not for Mrs Williams to require the court to check with her before fixing a date. The court's requirement is that these applications be heard.[13]It would, however, be foolish to proceed on a basis which will invite arguments as to notice - thereby expending time and resources which would be better used in hearing the substantive argument on the applications and, if necessary, on the appeals. What I propose to do, therefore, is to direct that these four applications are listed for hearing before the court on Tuesday 11th October 2005, with a time estimate of half a day. They are to be listed on notice to the Raja Estate with a direction that appeals should follow forthwith if permission is granted on any of these applications.[14]That direction is subject to any further direction which the court hearing the applications may give in the light of the circumstances as they appear on 11th October. But I should make it clear that that date is now fixed by the court on the basis that these applications need to be heard and that the court will expect Mr Van Hoogstraten, if he wishes to pursue these applications, to make arrangements either to be present to present them in person or to be represented by an advocate who can do so on his behalf. The choice is, of course, for him. But he should not expect that a court will be sympathetic to any application on 11th October for an adjournment of these hearings.[15]The transcript of what I have said is to be prepared at public expense and a copy sent to Mr Van Hoogstraten at the Brighton address which he has given. But in advance of that he is to be notified of the date fixed for the hearing of his applications and of my observation that that is a date on which the court will expect to hear these applications whether he is present or not.

ORDER

applications adjourned to 11th October; transcript at public expense to be sent to first defendant.