Raja v Van Hoogstraten & Ors [2005] EWHC 1642 (Ch)

[2005] EWHC 1642 (Ch)

Case No CH 1993 R 6492

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/07/2005

Before

THE HONOURABLE MR JUSTICE LIGHTMAN

Between

ASHGAR SABIR RAJA (REPRESENTING THE INTERESTS OF THE ESTATE OF THE LATE MOHAMMED SABIR RAJA)Claimant

MR NICHOLAS VAN HOOGSTRATENDefendants

STITCHACRE LIMITEDDefendant

RAREBARGAIN LIMITEDDefendant

CASTRIES LAND LIMITEDDefendant

Mr Nicholas Purnell QC & Mr Peter Irvin (instructed by Healys, 3 Waterhouse Square, 142, Holborn, London EC1N 2SW) for Claimants

Mr van Hoogstraten appeared in person for in person

Hearing Hearing dates: 12 th July 2005

Judgment

INTRODUCTION

[1]I had before me on Tuesday the 12th July 2005 an application by Mr van Hoogstraten for permission to amend his Defence on the trial of an issue due to be held on the 14th November 2005. The issue at the trial is whether Mr van Hoogstraten was party to the murder of the late Ashgar Sabir Raja (“Mr Raja”) by Mr Knapp and Mr Croke on the 2nd July 1999. Mr Knapp and Mr Croke, who are described by Mr van Hoogstraten as “career armed robbers”, have been convicted of the murder of Mr Raja. Under the pleadings as they stand, the only issue is whether Mr van Hoogstraten instigated Mr Knapp and Mr Croke to murder, cause serious harm to or threaten Mr Raja. By his application Mr van Hoogstraten applies for permission to amend his Defence to raise a further issue and to plead that Mr Knapp and Mr Croke did not in fact murder Mr Raja and for this purpose to rebut in these civil proceedings the presumption of guilt arising from their convictions.

[2]Section 11(1) of the Civil Evidence Act 1968 provides that in any civil proceedings the fact that a person has been convicted of an offence before any court in the United Kingdom shall be admissible in evidence for the purpose of proving that he committed that offence whether or not he is a party to the civil proceedings; and section 11(2) provides that in any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence before any court in the United Kingdom he shall be taken to have committed that offence unless the contrary is proved.

[3]At the criminal trial of Mr van Hoogstraten, Mr Knapp and Mr Croke for the murder of Mr Raja, Mr Knapp and Mr Croke were convicted of murder and their appeals were dismissed by the Court of Appeal. At the criminal trial Mr van Hoogstraten was acquitted of murder but convicted of manslaughter. The Court of Appeal however quashed that conviction and ordered a retrial. Subsequently, following a ruling by Sir Stephen Mitchell on the 2nd December 2003 and a decision by the Court of Appeal on the 12th December 2003, the indictment for manslaughter was quashed and the retrial abandoned.

[4]In the four actions before me, the issue arises in different contexts whether Mr van Hoogstraten was responsible for the murder of Mr Raja by Mr Knapp and Mr Croke. On the 26th January 2005 at a hearing at which all parties were represented by counsel and with their concurrence I directed that the common issue in all four actions shall be tried as the first issue in the trial of all four actions and I set a timetable leading to the trial on the 14th November 2005. (The trial of this issue is colloquially referred to as the trial of “the Preliminary Issue” though it is not in fact a preliminary issue: it is the first stage of the trial in all four actions.) Mr van Hoogstraten did not attend that hearing. When he heard of the order, he took great objection and immediately took two decisions. The first decision was that on the Preliminary Issue he would no longer be legally represented but would represent himself. I have repeatedly encouraged him in his own interests once more to obtain legal representation but he has declined. He has told me that he sees it to his advantage to represent himself. The second decision was to apply to me to discharge my order. I heard that application on the 11th February 2005. In his submissions to me on that application he said that there would be no timetable without his consent and that he would abide with no timetable to which he did not agree. In my judgment dated the 11th February 2005 I dismissed his application and made plain that I intended to require both parties to abide by the timetable which I had laid down.

[5]Mr van Hoogstraten has the funds available to obtain legal representation if he wants to, though he suggests the contrary in his evidence on this application. We explored this question at the hearing of the 11th February 2005 and I refer to paragraphs 11 and 12 of my judgment of that date. I went on in my judgment to make plain (as I made plain on subsequent occasions) that I would not allow his decisions to act in person or to spend protracted periods in Zimbabwe to derail the timetable. Mr van Hoogstraten is a very wealthy man. Whilst some of these funds are subject to a restraint order (which he tells me he is in the process of applying to discharge), this order would (if he requested) be modified to allow for this expenditure. I recorded in my judgment of the 4th March 2005 that Mr van Hoogstraten had told me at the hearing proceeding that judgment that he had assets in his own name of between £2 and £3 million, but was unwilling to sell or otherwise realise any asset or expend any money necessary to have the conduct of this action in the hands of legal representatives.

[6]A sequestration order was made against Mr van Hoogstraten on the 12th December 2002, but was discharged on the 21st October 2004. Mr van Hoogstraten has made an application for relief in respect of the making of the sequestration order, on which I have been asked to give directions for trial. I have given those directions which include directions for trial following shortly after the trial of the Preliminary Issue. On the application for directions in respect of the sequestration order Mr van Hoogstraten was represented by counsel.

CHRONOLOGY

[7]On the 26th January 2005 at a Case Management Conference I gave directions for trial of the Preliminary Issue. In particular I ordered: i) that three actions commenced in the Queen’s Bench Division be transferred to the Chancery Division and consolidated with the action brought in the Chancery Division: ii) trial of the Preliminary Issue; iii) that Mr van Hoogstraten should have permission to re-amend his defence by the 23rd February 2005; iv) disclosure by exchange of lists (limited to the preliminary issue) by the 23rd March 2005; v) that witness statements and hearsay notices be exchanged by the 22nd April 2005; vi) a further case management conference be held on the 12th May 2005; vii) trial of the Preliminary Issue to commence on the 14th November 2005 with a time estimate of six weeks; viii) costs in case.

[8]On application by the Claimants on the 4th March 2004 I ordered that, unless by 4 p.m. on the 11th March 2005 Mr van Hoogstraten filed and served any amendments to his defence in the four actions (which were limited, so far as material, to maintaining that he was not involved in the murder), he should be debarred from raising or relying on any further matters beyond those already pleaded without the leave of the court.

[9]On the 10th March 2005 Mr van Hoogstraten served a Supplemental Further Defence. By paragraph 1 he denied any involvement in, knowledge of or interest in the death of Mr Raja. In paragraphs 2-8 of the Supplemental Further Defence he went on to make a series of unparticularised allegations against those involved in the prosecution and trial and concluded with a challenge to the convictions of Mr Knapp and Mr Croke.

[10]The Claimants thereupon applied to strike out the whole of the pleading other than paragraph 1. On the 22nd March 2005 Richards J made an order to this effect. Paragraph 2 of the order read as follows:

“2. The Defendant shall have liberty to file and serve a fully particularised Re-Re-Amended Defence in the consolidated actions by 4 p.m. on the 8th April 2005, such Re-Re-Amendments to state specifically (without prejudice to the generality of this liberty to file such Re-Re-Amended Defence) (1) whether it is the Defendant’s contention that Messrs Knapp and/or Croke were not guilty of the murder of Mr Raja and if so (2) giving such full particularity as will be relied on upon trial all facts and matters alleged in support of such contention, so as to enable the Claimants to know the case they have to meet at trial.”

[11]The order further directed that the time for completing disclosure be extended until 4 p.m. on the 8th April 2005.

[12]The Case Management Conference was duly held on the 12th May 2005. By an order of that date I directed that the defence pleaded in paragraph 1 of the Supplemental Further Defence should stand as his Points of Defence unless Mr van Hoogstraten applied within ten days of service of the Point of Claim to serve a different Points of Defence. I made it clear to Mr van Hoogstraten that, if he made any such application, he must file detailed evidence explaining the reasons why the application could not have been made at any earlier date as well as evidence in support of any allegations which he might wish to make. The Points of Claim were served on the 18th May 2005.

[13]By an application notice dated the 23rd June 2005, Mr van Hoogstraten applied for permission to serve an amended Points of Defence (dated the 24th May 2005). The pleading reads as follows:

“1. It is absolutely denied that the First Defendant had any involvement, knowledge or interest in the death of Mr M S Raja. 2. It is denied that Mr Robert Knapp and Mr David Croke were responsible for the death of Mr M S Raja. 3. The convictions of Mr Knapp and Mr Croke are unsafe due to a number of factors including the deliberate suppression of vital DNA evidence, disclosure at a late date of telephone records and perjured evidence of three members of the Tong family. Further details will be provided after full disclosure of documents in possession of the Crown Prosecution Service. 4. The First Defendant Mr Knapp and Mr Croke were ‘fitted up’ by a corrupt police team now the subject of an enquiry by Detective Superintendent Wolfenden, the head of Specialist Investigations at the Metropolitan Police. This enquiry has identified 15 ‘key issues of concern’ including: a. The fabricated link between the First Defendant and one Jim Croke.” b. Threats to Mr Raja by one Macinally, a thug employed by Mr Hamdan. c. Non disclosure and suppression by DC Ellis of his note book detailing his clandestine dealings with Mr Hamdan including attempts to encourage the First Defendant to skip bail. d. An attempt by DC Ellis to insert a sentence in the statement of Mr Browne that the First Defendant was going to have Mr Raja killed. e. Failure to disclose the close association between Mr Hamdan and Mr and Mrs Knapp Senior. f. Dishonest inaccurate reliance on a comment made by the First Defendant in respect of the Crimewatch Programme. g. Coercion and conspiracy with Mr Hamdan to give false evidence against the First Defendant. h. Misrepresentation of intelligence in order to present a false picture to the Crown Prosecution Service of the strength of evidence against the First Defendant. i. Total failure to enquire into the fact that “£2,000 paid to Bob for No 7” from a diary entry of the First Defendant was evidence of a running loan account between the First Defendant and Mr Knapp. j. Illegal interception of legal privileged mail of the First Defendant Mr Knapp and Mr Croke which led to the Police arranging for the crucial DNA exhibit SB/11 being destroyed so that it could not be tested by the Defence. k. The suppression of a forensic science report of Mr John Bark dated 13th May 2002. A report that clearly shoed that the crucial DNA exhibit SB/11 far from being a “billion to one” not belonging to Mr Croke gave only “moderate” support that it belonged to Mr Croke. l. Suppression by the Police of a vital letter from the fertilizer bag distributor that stated the bags were sold by B&Q and numerous other outlets in the country as opposed to the 2 or 3 outlets presented by the prosecution case. m. Suppression of the fact that the blood on the knife with which Mr Raja had armed himself belonged to a third party and matched DNA found in the getaway Mr van Hoogstraten yet belonged to neither Mr Knapp nor Mr Croke. n. That prior to the plan to “fit up”

Mr Knapp and Mr Croke (a pair of well over the hill junkies) the several eyewitnesses to the murder and at the crime scene described the two men as age 30, 5ft 7inches tall and age 18, 5ft 10 inches tall, Mr Croke is over 5ft 9 inches tall and Mr Knapp is over 6ft 3 inches tall. The descriptions were circulated by the Police on 17th August 1999 yet hidden from the Jury at Trial. The Police Notice also falsely stated that Mr Raja had been shot twice and that he had been killed by a gunshot would to the head.”

[14]The thrust of the new pleading is that it is denied that Mr Knapp and Mr Croke were responsible for the death of Mr Raja and it is alleged that their convictions were unsafe and that they were “fitted up” by a corrupt police team and perjured evidence and received an unfair trial. The allegation of “fitting up” is said to rest on the key issues of concern identified by an ongoing police internal enquiry conducted by Detective Superintendent Wolfenden (“the Enquiry”).

[15]Mr van Hoogstraten’s witness statement in support is dated the 22nd June 2005. In it he begins by stating that he is hampered in the case by the ‘illegal’ sequestration order remaining in place and the ‘illegal’ freezing order’ over his worldwide assets. He goes on to complain of the destruction of certain evidence; that the results of certain testing (“the Bark Statement”) were suppressed and not released by the police until the summer of 2004; that certain telephone recordings were suppressed by the police; that the Tong Family gave false evidence at the criminal trial on the issue of their whereabouts on the 2nd July 1999 (though he appears to concede that the trial judge and the Court of Appeal were fully apprised of the truth). He maintains that he is not in possession of the papers relating to the trial of Mr Knapp and Mr Croke, but only of those relating to his own trial. He says that Mr Knapp and Mr Croke were “fitted up” and did not receive a fair trial.

[16]Counsel for the Crown Prosecution Service attended at the commencement of the hearing of this application to assure the court and Mr van Hoogstraten that Mr van Hoogstraten would be provided with access to, and copies of, all the papers relating to the trial in respect of which privilege has to be claimed. There should be no continuing ground for complaint that Mr van Hoogstraten is not in possession of the relevant papers. Mr van Hoogstraten expressed concern that the Crown Prosecution Service had not answered a series of questions he had raised in correspondence. Counsel assured him that urgent consideration would be given to answering those questions.

[17]Mr van Hoogstraten’s witness statement does not exhibit any document relating to the Enquiry or verify the existence of the “key issues of concern”. He told me in the course of his submissions that he had a complete file at home and that he would provide this to me on Thursday the 14th July 2005. He then sent to me a file which included a witness statement by Mr van Hoogstraten dated the 6th October 2004 in which he made 15 complaints against the police which Detective Superintendent Dick Wolfenden agreed to investigate.

[18]Mr van Hoogstraten’s application was fully argued before me on the 12th July 2005 but at the conclusion of the hearing I ordered the production of further documents and information by both parties, as well as short skeleton arguments if so desired. Both parties duly produced further documents and information but only the Claimants provided a further skeleton argument, together with a helpful schedule of references in the transcripts of the criminal trial, as well as in the Court of Appeal judgment, where the matters raised by Mr van Hoogstraten were dealt with.

THE PLEADING

(a) Paragraph 2

[19]In support of the denial in paragraph 2 of the pleading that Mr Croke and Mr Knapp were responsible for the death of Mr Raja, paragraph 3 pleads that the convictions were unsafe for the reasons specified which include three particular matters. In my judgment the three particulars do not establish or go to establishing that the convictions were unsafe.(a) It is clear that the “vital DNA” sample was legitimately tested to destruction. This was the subject of evidence given by Mr Whittaker to the jury on the 23rd April 2002 and the consequences of its “destruction” for a fair trial of the accused were the subject of legal submissions and of a ruling in the Judgment. Mr van Hoogstraten explained at the hearing that his complaint was that at the trial he asked for the report of John Bark dated the 13th May 2002 recording the results of these tests (“the Bark Report”) and that it was not forthcoming. Leaving aside other evidence this allegation is difficult to credit. It would be remarkable if it was not forthcoming if requested by Mr van Hoogstraten or that any withholding of it (if of any significance) would have failed to be the subject of a submission on behalf of defendant and a ruling of the judge, Newman J, or the Court of Appeal. There is no evidence of any such submission, order or ruling or reference. But beyond this it is to be noted that in the joint admissions No. 16 made under section 10 of the Criminal Justice Act 1967 all the accused admitted that further scientific evidence (i.e. the Bark Report) excluded James Croke as a source of the blood contained on the swab.

(b) The telephone records may or may not have been disclosed late, but they were disclosed in time for use at the trial. The delay again occasioned no submission to Newman J or ruling.

(c) One member of the Tong family gave incorrect evidence explaining why he recalled certain events as having happened on the 2nd July 1999. This error came to light at or before the trial and was referred to by Newman J in his judgment. The error had no effect adverse to the accused at the trial.

(b) Paragraph 4

[20]Paragraph 4 sets out the “key concerns” of the Enquiry. The fact that there is a Enquiry and that these are the “key concerns” of the Enquiry does not establish that the convictions were unsafe. But I shall consider in turn each of these issues as best I can on the material place before me.

[21]“(a) The fabricated link between the First Defendant and one Jim Croke.” There are two Jim Crokes. One is the son of the convicted Mr Croke (“the Son”). The other is a builder person totally unconnected with him (“the Builder”). The police and (at the commencement of the criminal trial) the prosecution did not appreciate this fact and the prosecution was opened on the basis that a reference in Mr van Hoogstraten’s diary to a meeting with “Jim Croke” was a reference to the Son. In fact it was a reference to the Builder. Mr van Hoogstraten disabused the court of this error and Newman J held that the diary entry referred to the Builder. The diary entry had accordingly no significance or evidential value. Whether or not the mistake by the police was a deliberate mistake (as alleged by Mr van Hoogstraten), it had no adverse effect at the trial and it has never been suggested that it did.

[22]“(b) Threats to Mr Raja by one Macinally, a thug employed by Mr Hamdan.” Mr van Hoogstraten at the trial suggested that Mr Macinally, an employee of Mr Hamdan, made threats against Mr Raja. Mr van Hoogstraten gave evidence to this effect and put this to DC Ellis in the course of his cross-examination. Nothing was suppressed by the Crown. Newman J on page 12 of his judgment dated the 30th May 2002 (“the Judgment”) refers to the fact that DC Ellis initially regarded Mr Hamdan as a suspect but later concluded that he had no role in the murder. There is no reason to believe that he was not correct.

[23]“(c) Non disclosure and suppression by DC Ellis of his notebook detailing his clandestine dealings with Mr Hamdan including attempts to encourage the First Defendant to skip bail.” The notebook was only produced by DC Ellis on the 15th May 2002 on his arrival at court at the instance of Mr van Hoogstraten. These were all matters investigated at the trial and referred to by Newman J on page 12-13 of the Judgment this was inappropriate conduct on the part of DC Ellis but that this and the other matters of which complaint is made did not constitute an abuse requiring him to halt the trial.

[24]“(d) An attempt by DC Ellis to insert a sentence in the statement of Mr Browne that the First Defendant was going to have Mr Raja killed.” This fact was clear from the notebook which showed the relevant passage with a pen stroke through it. This matter was explored by Leading Counsel for Mr van Hoogstraten in the evidence on voire dire, and the inappropriateness of DC Ellis’s conduct in this regard was fully considered by Newman J in the Judgment.

[25]“(e) Failure to disclose the close association between Mr Hamdan and Mr and Mrs Knapp Senior.” I have not been shown any evidence of this close association nor is its relevance apparent.

[26]“(f) Dishonest inaccurate reliance on a comment made by the First Defendant in respect of the Crimewatch Programme.” An important part of the prosecution case was that in the course of his interview with the police Mr van Hoogstraten said that, if the killer of Mr Raja was a contract killer, he would not have needed two shots: the fact that the first shot had missed was not publicly known; and that this statement by Mr van Hoogstraten demonstrated that he had information not made available to Crimewatch or the public. Mr van Hoogstraten said and says that the fact that there were two shots (but not that the first shot missed) was common knowledge. This statement does not answer the prosecution case. Newman J directed that the weight to be given to Mr van Hoogstraten’s statement at the interview was a matter for the jury.

[27]“(g) Coercion and conspiracy with Mr Hamdan to give false evidence against the First Defendant.” Mr Hamdan left the country and did not give evidence at the trial. There is no evidence of any conspiracy or coercion.

[28]“(h) Misrepresentation of intelligence in order to present a false picture to the Crown Prosecution Service of the strength of evidence against the First Defendant.” The gist of this complaint is that the police in “scoring points as to likely suspects” presented the evidence against Mr Knapp, Mr Croke and Mr van Hoogstraten in a way which unfairly led to their prosecution rather than the prosecution of Mr Hamdan. Whether or not the police did so, the prosecution of the accused proceeded on the evidence against them. There is no allegation or case made that Mr Hamdan was responsible for the murder.

[29]“(i) Total failure to enquire into the fact that “£2,000 paid to Bob for No 7” from a diary entry of the First Defendant was evidence of a running loan account between the First Defendant and Mr Knapp.” Mr van Hoogstraten gave evidence that the £2,000 was a loan and evidenced a running account between himself and Mr Knapp. The prosecution accepted this and did not rely on the payment as connected with the murder.

[30]“(j) Illegal interception of legal privileged mail of the First Defendant Mr Knapp and Mr Croke which led to the Police arranging for the crucial DNA exhibit SB/11 being destroyed so that it could not be tested by the Defence.” Mr van Hoogstraten alleges (as was argued at the criminal trial) that there was unlawful interception of privileged mail and in particular of the letter dated the 20th February 2002 from Mr van Hoogstraten to a Mr Solomon and that this led to the destruction of the exhibit. Newman J in the Judgment found that the allegation was untenable, and there is no reason to disagree with that holding. Mr van Hoogstraten says that the error in the holding of Newman J is established by the fact that the prison requires prisoners not to seal any mail. This practice (if proved) establishes no such thing. The mail may need to be unsealed so that it may be checked whether the contents are privileged.

[31]“(k) The suppression of a forensic science report of Mr John Bark dated 13th May 2002. A report that clearly showed that the crucial DNA exhibit SB/11 far from being a “billion to one” not belonging to Mr Croke gave only “moderate” support that it belonged to Mr Croke.” The crucial DNA test conducted by Mr Whittaker relied on the prosecution showing the “billion to one” chance and the test conducted by Mr Bark was quite different and for different purposes. Their results cannot sensibly be compared. The Bark Report was unused evidence at the trial. Mr van Hoogstraten says that he was not aware of it until the summer of 2004, but the evidence suggests that it was faxed to the prosecution counsel in the middle of the trial and subsequently served on the defence but the defence counsel decided that it was not relevant.

[32]“(l) Suppression by the Police of a vital letter from the fertilizer bag distributor that stated the bags were sold by B&Q and numerous other outlets in the country as opposed to the 2 or 3 outlets presented by the prosecution case.” The prosecution called as a witness a Mr Court, an employee of the distributor, who gave evidence that the fertiliser bags were sold by B&Q and that he had sent a letter to this effect to the police, but did not have the letter with him. Newman J postponed further cross-examination of him to enable the matter of the letter to be pursued. Mr Knapp’s counsel later confirmed that she had a copy of the letter in her papers and no-one thereafter requested that the cross-examination be resumed or made any further reference to or request for the letter. The existence of the letter was before the jury.

[33]“(m) Suppression of the fact that the blood on the knife with which Mr Raja had armed himself belonged to a third party and matched DNA found in the getaway Mr van Hoogstraten yet belonged to neither Mr Knapp nor Mr Croke.” There was no suppression of the fact. Mr van Hoogstraten raised the matter before Newman J and it was dealt with in the evidence of Mr Whittaker, the Judgment by Newman J and in the judgment of the Court of Appeal.

[34]“(n) That prior to the plan to “fit up” Mr Knapp and Mr Croke (a pair of well over the hill junkies) the several eyewitnesses to the murder and at the crime scene described the two men as age 30, 5ft 7inches tall and age 18, 5ft 10 inches tall, Mr Croke is over 5ft 9 inches tall and Mr Knapp is over 6ft 3 inches tall. The descriptions were circulated by the Police on 17th August 1999 yet hidden from the Jury at Trial. The Police Notice also falsely stated that Mr Raja had been shot twice [in the head and the stomach] and that he had been killed by a gunshot wound to the head.” The mismatch in the descriptions was self evident. The eye witness statements were all disclosed. The Police Notice reflected the witness statements. The whole topic was fully considered by Newman J in the Judgment and also considered by the Court of Appeal in rejecting applications for permission to appeal by Mr Knapp and Mr Croke.

[35]Paragraph 5 of the Points of Defence makes a series of allegations of errors and mis-directions by Newman J. These were all raised by the Notice of Appeal in the Court of Appeal and the Court of Appeal thought nothing of them, dismissing the appeal.

DECISION

[36]The application for permission to amend in my judgment is open to objection on two grounds of delay and on the merits.

(a) Delay

[37]The first is that the application for permission to amend raising the new defence is very late, long out of time and that there is no explanation or excuse proffered for the delay in Mr van Hoogstraten’s evidence, though I had made quite clear the need for it. It is grossly unfair to foist upon the Claimants the burden of preparing for trial on the issue whether Mr Knapp and Mr Croke were guilty of the crime for which they were convicted at this very late stage when every warning had been given as to the need to avoid delay if this issue was to be raised and when already an enormous task lies ahead of the Claimants to prepare their case on the involvement of Mr van Hoogstraten in the murder in time for trial. The six week time estimate for the trial was determined on the basis that the only issue to be tried was the involvement of Mr van Hoogstraten in the murder by Mr Knapp and Mr Croke. The trial of the issue whether Mr Knapp and Mr Croke were innocent of the murder could well double the length of trial and would require very extensive preparation of papers and evidence as well as doubling the cost. If the permission sought were given now and the issue of the guilt of Mr Knapp and Mr Croke had also to be tried, there is a likelihood that the trial date would have to be vacated.

[38]In all the circumstances, even if otherwise the application for permission had merits, I think that permission should be refused on the ground of delay. Mr van Hoogstraten has been warned time and again of the importance of abiding by timetables and of the trial commencing on the date fixed and that his decision to represent himself and to absent himself for protracted periods in Zimbabwe afforded no excuse for delay.

(b) The Merits

[39]The allegations so far as they relate to the conviction (subsequently overturned) of Mr van Hoogstraten are irrelevant. Alone relevant are allegations relating to the conviction of Mr Knapp and Mr Croke, and these are inadequately particularised and inadequately supported by the evidence in Mr van Hoogstraten’s witness statement. Further on examination they in no way show an arguable case that the convictions were unsafe or even arguably unsafe. But even if they did show (as pleaded) an arguable case that the convictions were unsafe, they are quite insufficient to enable Mr van Hoogstraten to “go behind” the convictions. To discourage parties in civil proceedings reopening issues tried in criminal proceedings, section 11(2) of the Civil Evidence Act 1968 imposes on any civil litigant who wishes to “go behind” a conviction the burden of proving on the balance of probabilities that the person convicted did not commit the offence. It is not sufficient to establish that the convictions were unsafe or that the judge (or Court of Appeal) in the criminal trial made an error or indeed that the prosecution was an abuse of process. The substance of the pleading goes no further than allege that the convictions of Mr Knapp and Mr Croke were unsafe.

[40]On examination of the facts pleaded Mr van Hoogstraten cannot show an arguable case that the convictions were unsafe and still less can he show an arguable case (let alone a case with any real prospect of success) that Mr Knapp or Mr Croke did not murder Mr Raja.

CONCLUSION

[41]I accordingly dismiss this application.