Raja v Van Hoogstraten [2005] EWCA Civ 1483

Case No A3/2005/2342[2005] EWCA Civ 1483
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR JUSTICE LIGHTMAN)
Venue Royal Courts of JusticeDate Tuesday, 15 November 2005
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE BROOKE
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE BUXTON
LADY JUSTICE SMITH
Between
ASGHAR SABEER RAJARespondent(Representing the Interests of the Estate of the LateRespondentMohammed Sabir Raja)Respondent-v-
Between
NICHOLAS van HOOGSTRATENAppellant
(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)
for The Appellant did not attend and was not representedMR PETER IRVIN (instructed by Messrs Healys) appeared for Respondent
J U D G M E N T

LORD JUSTICE BROOKE:

[1]The first matter which is before the court is an application by Mr van Hoogstraten for leave to appeal against an order made by Lightman J on 6 October 2005 when he dismissed a renewed application by Mr van Hoogstraten that he should set aside the order he made in this case on 26 January 2005.[2]It is necessary to say a little bit about the previous history of the proceedings which have been set out with admirable clarity by Lightman J in the judgment he delivered on 11 November 2005. In short, on 26 January 2005 when Mr van Hoogstraten appeared by counsel (although he was not himself present), Lightman J directed a trial of a preliminary issue on liability on the issue raised by the allegation in paragraph 1(a) of the re-amended particulars of claim. This, in short, was an allegation that Mr van Hoogstraten was responsible for the death of Mr Mohammed Raja who was murdered by two professional criminals known as Knapp and Croke who were subsequently convicted of murder at the Old Bailey. Mr Von Hoogstraten himself was convicted of manslaughter on the same occasion, but the conviction was subsequently set aside on appeal on the grounds of misdirection in the summing-up to the jury.[3]Lightman J directed that the trial of this preliminary issue on liability should start on 14 November 2005 and continue for six weeks. In his judgment last week Lightman J described how he had given directions with the concurrence of counsel, including junior counsel for Mr van Hoogstraten. He said that Mr van Hoogstraten then made every effort to frustrate the trial of the preliminary issue on that date. He immediately dismissed counsel and solicitors and began to act in person.[4]On 11 February 2005 Mr van Hoogstraten, now acting in person, applied to discharge the order for directions made on 26 January. Lightman J dismissed this application with costs and refused permission to appeal, and there has been no appeal against that order. In essence, the first application we have to consider today is an application for a very long extension of time for appealing against the order Lightman J made on 11 February 2005.[5]What Lightman J said about the events of 11 February was this:
"In the course of the hearing I advised Mr van Hoogstraten that he should obtain legal representation and said that it was clear on the evidence that [he] had ample means to pay for legal representation and that any necessary authorisation of expenditure for this purpose under the freezing order would be available. When I asked Mr van Hoogstraten what money or assets he had in his own name he replied: 'Relative peanuts, may be £2 or £3 million'. 11. When I told him that he could sell any of his assets to raise the necessary funds, the following exchange took place: '(Mr van Hoogstraten) But why should I sell anything and incur capital gains tax for these people's benefit? (Lightman) I will tell you this. If you have assets of £2-£3 million - (Mr van Hoogstraten) I am not selling anything. It is as simple as that. I don't need to and I don't have to. The freezing order needs to be lifted. It was obtained by perjured evidence and it is illegal and I put in an application to have it lifted - 2½ years ago to have it lifted and the court lost it. It is up to the court to sort it out.'"

The judge continued:

"This has remained Mr van Hoogstraten's position until very recently. I have repeatedly told Mr van Hoogstraten it is for him to make the application to vary or discharge the freezing order, but he has refused to and the continued existence of the freezing order was a pretext for refusing to obtain legal representation. He said (at page 18) 'I will need legal representation. There is no dispute about it... But there is no way I am going to get legal representation whilst there is a freezing order in place and until we've recovered some of the costs which [the claimants] owe us.'"

The judge continued:

"13. In my judgment given on the application made on 11th February 2005 I stated my finding on the evidence before me that Mr van Hoogstraten had many millions of pounds: I referred to his admission of assets in his own name of £2-£3 million and his refusal to realise any to pay for legal representation. I reminded him of his freedom he had to apply for the discharge of the freezing order and warned that by acting in person he could not imperil the timetable for the trial of the Preliminary Issue."
That was 11 February 2005.[6]On 12 May 2005 a further case management conference took place. The judge described it in these words in paragraphs 14 and 15 of his recent judgment:"14. At this hearing I made clear again that Mr van Hoogstraten's decision not to instruct lawyers would not operate as a passport to give him a greater range of freedom in relation to applications to the court; and when counsel for the claimant made reference to Mr van Hoogstraten's decision to act in person, Mr van Hoogstraten responded: 'I use lawyers for matters which do not require my input.'.15. When Mr van Hoogstraten sought to raise on the Preliminary Issue the question whether Mr Knapp and Mr Croke had indeed murdered Mr Raja, I asked whether it would be possible for him to instruct his former solicitors Janes: He replied: 'No, my Lord, I would rather deal with it myself. I do not want to involve Janes for the simple reason that to instruct them in relation to these very complicated issues concerning the criminal trial would take me more time - I mean, I've got to do a double instruction then and it's just going to take further time. I can deal with it myself quite adequately with Miss Jacobs [of the Crown Prosecution Service]. I know enough about the criminal law.' Lack of means did not enter into his decision. I made clear that the timetable stood irrespective of any lack of representation on his part. Mr van Hoogstraten told me that he was making an application to discharge the freezing[7]On 12 July 2005 there was another case management conference before Lightman J. He gave judgment on 29 July 2005. Lightman J described this at paragraph 16 of his recent judgment. He said:
"The principal issue raised was whether on the Preliminary Issue Mr van Hoogstraten could (as he wished) challenge the correctness of the convictions of Mr Knapp and Mr Croke for murder. If he could, the trial of the Preliminary Issue would in all likelihood have had to be adjourned for a substantial period to enable the parties to prepare their cases on this new question. I held that he could not do so and my judgment was subsequently affirmed by the Court of Appeal on the [this would be] 11th October 2005 ("the Court of Appeal decision"). In my judgment on that application given on 29th July 2005 I said ..."
[8]The judge then set out in his judgment a long quotation from his earlier judgment. In effect, he was repeating that he had repeatedly encouraged Mr van Hoogstraten in his own interests to obtain legal representation but that he declined. He told the judge that he saw it to his advantage to represent himself. Then the judge repeated what he had said on 11 February 2005 and repeated that Mr van Hoogstraten had the funds available to obtain legal representation if he wanted to. He said that he went on to make plain, as he made plain on subsequent occasions, that he would not allow his decision to act in person or to spend protracted periods in Zimbabwe to derail the timetable; that Mr van Hoogstraten was a very wealthy man; and that while some of his funds were subject to a restraint order (which he had told the judge he was in the process of applying to discharge) that order would, if he requested, be modified to allow this expenditure.[9]A further case management conference took place before Lightman J on 6 October 2005. On that occasion Mr van Hoogstraten made a renewed application to set aside the order of 26 January. We have been shown a copy of the transcript of the proceedings before the judge, and all I need to say about those proceedings is that

the judge said:

"There was no appeal from [my decision on 11 February] and that decision stands."
In effect, the judge said that only the Court of Appeal could set it aside and that Mr van Hoogstraten was long out of time for that.[10]In paragraph 17 of his recent judgment

the judge said:

"In the course of [the hearing on 6 October], in the light of continuing repeated complaints by Mr van Hoogstraten by the freezing order, I told him that even in the busy period of final preparation for trial I would as an indulgence to him make time available to hear a belated application in respect of the freezing order if he or his companies wished to make one, and he and his companies decided to do so."
He described how he had heard the companies' application on 1, 3 and 4 November and Mr van Hoogstraten's own application on 9 November when, with the judge's encouragement, a compromise was reached acceptable to both parties in respect of the period up to the judgment on the preliminary issue.[11]In the meantime, on 11 October 2005, this court heard a number of applications by Mr van Hoogstraten in relation to earlier decisions. One of the decisions being challenged was an order by David Richards J who had debarred Mr van Hoogstraten from relying on certain passages in his defence in which he was contending that Mr Knapp and Mr Croke had not been responsible for Mr Raja's death and that they had been "fitted up" by a corrupt police team. Carnwath LJ, with whom the other two members of the court agreed, said that it was too late to challenge this and that it was largely overtaken by the later hearing before Lightman J. He also dismissed the challenges to two costs orders which had been made.[12]More significantly, there was a notice of appeal on 10 August 2005 against Lightman J's decision on 29 July which excluded any opportunity to contend that the convictions of Mr Knapp and Mr Croke were wrong. There was also a challenge to Lightman J's order for costs. The Court of Appeal ruled on those applications, too, upholding the judge's approach in reliance on the provision of section 11 of the Civil Evidence Act 1968 which, in short, provides that in a Civil Court convictions are treated as final unless and until they are set aside or unless and until evidence is produced which satisfies the court on the balance of probabilities that the person concerned did not commit the particular offences.[13]The first application that the court has to consider today, as I have said, is Mr van Hoogstraten's challenge to the decision of Lightman J on 6 October. In his grounds of appeal, filed on 20 October 2005, Mr van Hoogstraten made a number of contentions in relation to the issue concerned with Mr Croke and Mr Knapp, alleging that there were certain issues as to whether a particular report had ever been served or not at the criminal trial; and contending that the trial of the preliminary point had to await the result of the appeals of Mr Croke and Mr Knapp which would be lodged imminently. He was also contending that it was logical, fairer and indeed far more important to deal with the allegations of fraud, which were the allegations of substantive proceedings between Mr Raja (before he died) and Mr van Hoogstraten.[14]Mr van Hoogstraten has always been anxious that these issues should be tried rather than the issue relating to whether or not he was responsible for Mr Raja's death. Mr van Hoogstraten alleges that the judge did not make his decision judicially, and that it should not have the effect of prejudicing one party against another. He complains that he was prejudiced by the judge's insistence on trying the preliminary point trial issue first, by his insisting on holding the hearing on 14 November despite the fact that neither the claimants nor the Crown Prosecution Service had fully complied with orders against them; and for holding the hearing on the preliminary point before the result of police inquiry into corruption and maladministration; and by holding the hearing before the appeals of Mr Croke and Mr Knapp.[15]He also relied on Article 6 of the European Convention on Human Rights, and he set out three grounds for this contention:(1) his lack of funding: he would now have no time to obtain funding in good time to instruct lawyers, including solicitors and counsel.(2) The full facts of the issues surrounding the preliminary point would not be known or would only be known too close to the hearing, which would prevent him from adequately preparing his defence. (This argument related to certain documents which still have to be produced).(3) It would be a miscarriage of justice to have a hearing which involved issues which will be determined by the Court of Appeal. That is a reference to the Criminal Division of the Court of Appeal, and Mr van Hoogstraten is here talking about evidence which he says will be available to persuade the Court of Appeal (Criminal Division) to set aside the convictions of Mr Croke and Mr Knapp.[16]In my judgment, what Mr van Hoogstraten is seeking to do is to set aside the decisions of a very experienced Chancery judge on case management issues which have been very carefully considered by him. Above all, he is trying to set aside long out of time the order that Lightman J made on 26 January 2005. There are no good grounds, in my judgment, for allowing him to apply so long out of time to set aside that order. In any event, as the judge has repeatedly made clear, if there are any issues of merit which relate to late disclosure of documents and matters of those kinds, he could deal with those on the merits. Alternatively, if it ever transpired that there was evidence which amounted to a properly arguable case that the convictions of Mr Croke and Mr Knapp should not be relied on in civil proceedings because Mr van Hoogstraten could prove on the balance of probabilities that they were wrongly convicted, then the judge would consider that. But in his judgment such evidence has never been before him (as in my judgment I consider his judgment on this matter has been correctly arrived at), since it has never gone anywhere near being able to satisfy the burden of proof required by the Civil Evidence Act, as this court itself ruled in its judgment on 11 October.[17]For those reasons, not only because this application was made, in effect, long out of time, but also because there are no merits in the proposed grounds for appeal, I would dismiss this application. I can see nothing in Mr van Hoogstraten's Article 6 point about his inability to obtain funding in good time in the light of what the judge has said has been discussed between him and Mr van Hoogstraten on many occasions since 26 January.[18]I turn, therefore, to the challenge to the judge's order of last week. What happened last week was that Mr van Hoogstraten applied to the judge to adjourn the commencement of the trial of the preliminary issue. It had been postponed from 14 November until 21 November because the preparation for trial was delayed by a belated application Mr van Hoogstraten and his companies had made for the discharge of the freezing order. What the judge had to determine now was whether he should accede to the application of Mr van Hoogstraten for the delay of the commencement still further.[19]The judge has helpfully set out the history of the proceedings and of all the earlier applications which were made to him between paragraphs 2 and 17 of his judgment. In paragraph 18 he said that Mr van Hoogstraten's application to adjourn the trial was made on a number of grounds, and that he would consider each in turn. There were four grounds. The last three are an echo of the complaints that Mr van Hoogstraten made in his appeal against the judge's earlier order; the first related to the Crown Prosecution Service's failure to produce documents. The judge said that he had told Mr van Hoogstraten that he could make an application to him on notice to the Crown Prosecution Service for the production of the documents. He said that if the Crown Prosecution Service unreasonably refused to cooperate and the documents requested were relevant to the preliminary issue, Mr van Hoogstraten could make a further application. Those matters did not justify any adjournment. That seems obviously correct.[20]The next matter relates to Mr van Hoogstraten's allegations that there were current developments regarding his complaint about the police conduct relating to the prosecutions and that new evidence was becoming available concerning the correctness of two convictions. The judge said that both he and the Court of Appeal had previously rejected challenges of this kind, and the new developments referred to did not alter the position. Again I can see no way of a successful challenge to that conclusion.[21]The third of these matters was that Mr van Hoogstraten had now told the judge that he intended to instruct solicitors and counsel and that they would require six to eight weeks to prepare for the trial. The application for an adjournment was strenuously opposed. It was said that the further delay in obtaining a judgment in the actions and the extra cost to which the claimants would be put would operate oppressively on them as they had limited means. It was also said that if there were an adjournment their counsel would not be available until April 2006 and their costs thrown away would be in the region of £300,000 (which the judge considered a reasonable estimate). The claimants added that there was reason to doubt whether Mr van Hoogstraten would meet any order for the payment of the costs thrown away or indeed any sum awarded in the actions. The judge recorded that the firm of solicitors to whom Mr van Hoogstraten owed £300,000 was apparently willing to act on credit and was apparently willing to act for him on the preliminary issue. That statement made by Mr van Hoogstraten last week is demonstrably not correct if what the firm itself has now said in its letter to the court is correct.[22]The judge said that he thought that there was real merit in each of the claimants' contentions. He therefore refused the application for the adjournment because it would be grossly unjust to the claimants, subject to one qualification.[23]The final matter on which Mr van Hoogstraten relied was again his application that the judge's order of 26 January was wrong, and that there ought to be tried at the same time as, or instead of, the issue as to the responsibility for the murder, the issue raised in the Chancery action as to whether Mr van Hoogstraten was dishonest.[24]The judge observed that the order for the trial of the preliminary issue had never been appealed; that the preliminary issue was common to all four actions; and that it was the issue in the Queen's Bench actions and might be determinative of the Chancery action (for the reasons the judge explained): the issue of fraud did not arise under the preliminary issue as it stood. The judge stated correctly that the parties since January this year should have proceeded on the basis that Mr van Hoogstraten's responsibility for the murder was the sole issue to be determined at the hearing in November. The court had proceeded on this basis and set aside the time in its calendar for this purpose.[25]The judge declared that the issue of fraud was a large and substantial one, requiring, as Mr van Hoogstraten had told him, matters of expert evidence; and that preparation for trial would require at least four months. He could see no justification for divorcing that issue from the rest of the case or for determining it before the court had ruled whether Mr van Hoogstraten should be precluded from defending the Chancery action. The judge rejected that application on the basis that it had no merits; it could only operate to postpone the trial of the preliminary issue.[26]I revert, then, to the three reasons the judge gave for refusing the adjournment. The first was that, notwithstanding Mr van Hoogstraten's evidence on the material before him, Mr van Hoogstraten could at any time raise the necessary funds to instruct solicitors and counsel if he wished. The judge explained his reasons for this finding. Secondly and in any event he could have obtained any necessary modification of the freezing order or authorisation from the court, and he had deliberately decided against making any application in respect of those orders despite repeated prompting by the judge until a very short time ago. Thirdly, the judge concluded that there was still time for the preparation of the preliminary issue even though it might require counsel burning the midnight oil. This issue was confined to the question whether Mr van Hoogstraten was party to the murder. The principal witness would be Mr van Hoogstraten himself, who had already made two witness statements. In respect of each of them and other evidence relied on by the claimants, the judge had directed the claimants' counsel to prepare a statement of the propositions of facts sought to be established by them with underlining of the material parts. The judge said:
"In my judgment competent counsel should be able to prepare in time for the 14th November 2005."
The one caveat the judge entered was that Mr van Hoogstraten told him that he would instruct legal representatives, and if they applied to him for an extra week as needed for preparation, the judge would then consider whether the trial should commence on 28 November. He said he would then consider any such application on his merits.[27]As I have said, the judge made it clear that if Mr van Hoogstraten wished to renew an application for permission to appeal against that order, he must file the notice of appeal by Monday. He also told Mr van Hoogstraten that this court would be available to hear his application in relation to this appeal as well as his application for permission to appeal against the order of 6 October on Tuesday, which is today.[28]In the notice of appeal which Mr van Hoogstraten has filed, he simply says:
"It is utterly impossible in such a short space of time to prepare an appeal. It is my wish to be legally represented on this appeal and on the issues in the trial generally. Until 11th November I was subject to worldwide freezing order which totally inhibited any access to funding after a sequestration order had depleted my resources and credit-worthiness."
He said that grounds for appeal would follow when he had had an opportunity to instruct counsel as well as solicitors, and that he applied for permission to lodge documents within 21 days from 14 November 2005.[29]In my judgment that written statement shows very very clearly that there is no merit whatsoever in this challenge. As I said in my recent judgment in Perotti v City ofWestminster [2005] EWCA Civ 581 at [21], there is no reason at all why even a litigant in person should not formulate the grounds on which he is challenging a judgment which he has just heard given. And on this occasion the judge made his written judgment available to the parties before the end of last Friday. Mr van Hoogstraten does not set out any grounds of appeal at all in relation to his challenge to the judge's order last Friday. He makes the specious excuse that there was a worldwide freezing order in effect until last Friday, when he must have known perfectly well that the judge had made clear to him ever since 11 February that if he made on application to have that freezing order modified, the judge would be willing to entertain that application. But he simply did not make it and it appears that what Mr van Hoogstraten told the judge last Friday about the potential availability of solicitors and counsel to act for him did not coincide with what his former solicitor Mr Minaides has told the court in his letter of 12 November and more recently told the respondents' solicitors in a letter of 14 November in which he wrote quite bluntly:
"This firm has declined Mr van Hoogstraten's instructions to act and therefore please do not send any papers whatsoever to us."
[30]I would be disposed to dismiss this application for permission to appeal against an order insisting that a trial long fixed to start next Monday should be postponed on the grounds that it was an abuse of process of the court. It does not comply with the requirement in the practice direction the grounds of appeal should be set out, and it should be extinguished here and now.[31]On the other hand, in view of the shortage of time, I have considered the merits of any proposed application. I am satisfied that there are none, because the judge has carefully set out the matters which he took into account in the exercise of his discretion. He has very carefully set out the history of the matter and it is very well known that this court is extremely reluctant to set aside the judgment of a judge on a case management conference, particularly if it is likely to have the effect of disturbing a trial date which has been long since fixed for trial. In these circumstances I would dismiss this application as well.

LORD JUSTICE BUXTON: I agree.

[33]Mr van Hoogstraten has not appeared today to move either his application for permission to appeal or his application in respect of the determination of Lightman J on 11 November 2005. His reasons for not appearing are not reasons that are acceptable to this court, as my Lord has set out in the judgment he delivered earlier today. In those circumstances, the course that was entirely open to be followed in my view was that both of those matters should be struck out for want of prosecution but without consideration of the merits.[34]However, in the circumstances, as my Lord's judgment has demonstrated, the court has given careful consideration to the merits of the appeal out of courtesy, if I may so describe it, to Mr van Hoogstraten. The appeal purports to be limited to a complaint about paragraph 13 of Lightman J's order of 11 of October 2005. That paragraph recorded a refusal to set aside the judge's order of 26 January 2005 in regard to the trial of the preliminary issue. That order was not appealed when it was made and in my judgement it was an abuse in itself for Mr van Hoogstraten to resurrect that issue in the guise of a case management application on 6 October, unless there were significant and serious changes of circumstances that required the judge to reconsider his order of 26 January in the light of those changed circumstances. No such circumstances had been demonstrated either to the judge or to this court. As my Lord has demonstrated, it is not acceptable that an order made as long ago as 26 January should only be challenged in this court now, many months after the date for properly appealing it has evaporated.[35]So far as the complaints about Lightman J's judgment of 11 November are concerned, those are based upon Mr van Hoogstraten's application to the judge to adjourn the trial. All the grounds that he advanced to the judge were, as my Lord again has demonstrated, repetitious of matters that had been determined in previous applications, and in respect of the complaint about the relevance of the guilt of Knapp and Croke to the preliminary issue, had been determined against Mr van Hoogstraten by this court in its judgment of 11 October 2005. Mr van Hoogstraten has shown no reason why the judge was wrong in taking that view, and has not set out any grounds whatsoever why this court should return to the matter yet again.[36]For those reasons, therefore, in addition to those given by my Lord, all of these processes were misconceived and this court should not entertain them.

LADY JUSTICE SMITH: I agree with both judgments.

[38]Case management decisions are a matter of discretion for the trial judge with which this court will not usually interfere unless there is an error of principle or the order made is unjust. The judge's decision in January 2005 to order the trial of a preliminary issue was plainly sensible and fair. It was designed to limit the issues to be tried. If the claimant succeeds on the preliminary issue, the defence on the fraud issue will probably be struck out because if Mr van Hoogstraten instigated the murder of Mr Raja (the original claimant in the fraud action) it would be an abuse of the process of the court to allow him to defend the fraud action.[39]The case management decision was sensible and fair when it was made. It remained, in my judgment, sensible and fair when challenged by Mr van Hoogstraten in October and it still remains so. I would refuse that application.[40]As to the application for permission to appeal the judge's refusal to adjourn the trial, Mr van Hoogstraten has frequently been told by the judge to apply for the restraining order to which he was subject to be modified so as to release a sufficient sum to allow him to instruct a legal team for the hearing. He chose not to do so until last week. He left his application until so late a stage that even if successful it would not be practicable for a legal team to be ready by 21 November.[41]In my judgment, there is no merit in this application and for the reasons given by my Lords, I, too, would dismiss the applications. (Applications dismissed; Appellant to pay the Respondents' costs on an indemnity basis; £5,000 is to be paid on account, and the balance is to be the subject of detailed assessment).

order

it was being formulated. None was in fact forthcoming." That was 12 May 2005, which is six months ago.