Raja v Van Hoogstraten & Ors [2006] EWHC 1315 (Ch)

[2006] EWHC 1315 (Ch)

Case No CH-1993-R-NO: 6492

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

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

Date 12/06/2006

Before

MR JUSTICE LIGHTMAN

Between

A.S. RAJA (REPRESENTINGClaimant

THE INTERESTS OF THE ESTATE OFClaimant

THE LATE MOHAMMED SABIR RAJA)Claimant

NICHOLAS VAN HOOGSTRATENDefendants

STITCHACRE LIMITEDDefendant

RAREBARGAIN LIMITEDDefendant

CASTRIES LAND LIMITEDDefendant

Mr Peter Irvin (instructed by Healys, 3 Waterhouse Square, 142, Holborn,

London EC1N 2SW) for Claimant

Mr Hugo Keith (instructed by the Treasury Solicitor, One Kemble Street, London WC2B 4TS) as the Advocate to the Court

Mr van Hoogstraten appeared in person for in person

for The Second to Fourth Defendants were not represented and did not attend

Hearing Hearing dates: 11 th– 12 th May and 16 th– 17 th May 2006

Judgment

Raja No 8

INTRODUCTION

[1]This is an action brought by the late Mohammed Sabir Raja (“Mr Raja”) in the Chancery Division of the High Court against the first defendant Mr Nicholas van Hoogstraten (“Mr van Hoogstraten”) and three companies and continued after the death of Mr Raja by the claimant A.S. Raja (“the Claimant”) representing the interests of the estate of Mr Raja. By this application the Claimant seeks an order that the Defence and Counterclaim of Mr van Hoogstraten (and with them an application by Mr van Hoogstraten to set aside an order obtained by Mr Raja) should be struck out and that he should be debarred from defending this action and prosecuting his counterclaim and that judgment should be entered for the Claimant.

[2]The application arises out of a judgment I gave at the trial of the first stage in this action (and in certain other actions brought in the Queen’s Bench Division of the High Court in which Mr van Hoogstraten was a defendant). Mr Raja commenced this action on the 8th October 1993. On the 2nd July 1999 Mr Raja was murdered. A Mr Knapp, a Mr Croke and Mr van Hoogstraten were charged with the murder. Mr Knapp and Mr Croke were convicted and Mr van Hoogstraten (after initially being convicted of manslaughter and after that conviction had been set aside on appeal) was acquitted. Nonetheless the Claimant in this action (and the claimants in the other actions) raised the issue whether Mr van Hoogstraten was party to the murder and I ordered that that issue should be determined as the first stage in all the proceedings (“the Preliminary Issue”). After the trial of the Preliminary Issue, at which Mr van Hoogstraten decided not to be represented and which he did not attend, in my judgment (“the Preliminary Issue Judgment”) I held that Mr van Hoogstraten was responsible for the murder. In paragraph 103 under the heading “Motive”, I said:

“103. Mr van Hoogstraten says that he had no motive for wanting Mr Raja murdered, that the litigation was a source of amusement and that the sum at issue was to him and a man of his wealth “relative peanuts”

. But it is plain that the claims made by Mr Raja against him in the Chancery Action angered Mr van Hoogstraten and his anger was aggravated by the addition of the claim in fraud. The action threatened to open up to public scrutiny his business methods and his dealings with Mr Raja and Mr Raja’s properties. He was not used to being thwarted. And the sum at stake was substantial running into millions of pounds and Mr van Hoogstraten viewed the saving and accumulation of money as the highest priority: he had a miser’s attitude to “unnecessary” expenditure and an obsession with the recovery by any means of what he considered was due to him and belonged to him. The existence of the proceedings was sufficient to induce him to write the 1995 Letter, to make threats against Mr Raja and repeatedly to ask Mr Hamdan to find a hit-man from Lebanon. From Mr Hamdan’s evidence it is clear that Mr van Hoogstraten’s expectation was that, if he killed Mr Raja who was pursuing the Chancery Action relentlessly against him, Mr Raja’s family would settle all outstanding claims on terms highly favourable to Mr van Hoogstraten.”

[3]I expressed my conclusion as follows:

“110. I am satisfied on the balance of probabilities, (and indeed if it were necessary beyond reasonable doubt), taking full account of the seriousness of the allegations against him, that Mr van Hoogstraten recruited two highly dangerous thugs, Mr Knapp and Mr Croke, to murder Mr Raja in order to halt the prosecution of the Chancery Action by Mr Raja against him and then to obtain the release or settlement of Mr Raja’s claims against Mr van Hoogstraten on terms highly favourable to Mr van Hoogstraten. The evidence pointing to this conclusion is overwhelming. It would have been sufficient for this purpose even if Mr van Hoogstraten had good and sufficient reasons for not attending the trial. The conclusion is the stronger in the absence of any such reason. Only by presenting compelling evidence to the contrary could Mr van Hoogstraten have had any real prospect of persuading the court to decide otherwise. Perhaps wisely he did not even attempt to do so. His purpose in murdering Mr Raja has not been achieved because (contrary to his expectations) Mr Raja’s family have been as resilient as was Mr Raja in his lifetime in standing up to Mr van Hoogstraten.”

[4]Mr van Hoogstraten applied to the Court of Appeal for permission to appeal, but permission was refused on the 9th May 2006.

[5]On the 21st December 2005 the Claimant issued this application. The grounds of the application are that: (1) Mr van Hoogstraten arranged the murder of Mr Raja in

[6]Mr Raja commenced these proceedings on the 8th October 1993. For reasons which it is unnecessary to record in this judgment the action has proceeded extraordinarily slowly. The defendants were (as they have been at all times) Mr van Hoogstraten, Stitchacre Limited (“Stitchacre”), Rarebargain Limited (“Rarebargain”) and Castries Land Limited (“Castries”). It is the Claimant’s case (challenged by Mr van Hoogstraten) that Rarebargain and Castries were companies owned and controlled by Mr van Hoogstraten, but no relief on this application is sought against Stitchacre, Rarebargain or Castries.

[7]The issue at the heart of this action is the state of account at the date of commencement of these proceedings between Mr Raja and Mr van Hoogstraten and in particular the existence and terms of oral agreements which (the Claimant says) were made by Mr van Hoogstraten for the making of secured loans to Mr Raja and the repayments received by Mr van Hoogstraten. Mr Raja contended that Mr van Hoogstraten had received full repayment at the date of commencement of this action (see paragraph 100 of the Re-Re-Re- Amended Particulars of Claim). The pleadings on both sides have undergone amendments (on occasion extensive amendment) since the commencement of proceedings, but the issues have at all times remained substantially the same. In the circumstances I do not think that it is necessary or appropriate do draw any distinction for the purpose of this application between the state of the pleadings at the date of Mr Raja’s death and today. But for completeness I shall briefly summarise the course of the pleadings.

[8]By the Statement of Claim dated the 3rd March 1996 Mr Raja claimed:(1) that by a series of oral agreements he agreed with Mr van Hoogstraten: (a) that Mr van Hoogstraten would make loans at interest to him on the security of some sixteen properties (“the Properties”) specified in the Statement of Claim to be purchased or already purchased in the name of Mr Raja; (b) that Mr van Hoogstraten should hold as security for the loans the Land Certificates in respect of the Properties; and (c) that receipts of income or rent in respect of the Properties should go in reduction of the interest due;

(2) that such loans were made by Mr van Hoogstraten and such security was provided;

(3) that Rarebargain and Castries were Mr van Hoogstraten’s companies and under his control;

(4) that up till the 31st August 1993 Mr Raja paid Mr van Hoogstraten the interest he orally demanded and made repayments in respect of the capital of the loans and Mr van Hoogstraten, Rarebargain and Castries received rent and income from the Properties;

(5) that in August 1993 Mr Raja refused to make any further interest payment or loan repayment because Mr van Hoogstraten refused to provide proper accounts and (leaving aside receipts of rent and income from the Properties) Mr van Hoogstraten had received loan repayments substantially equal to the sum claimed in July 1989 by Mr van Hoogstraten to have been lent;

(6) that Mr van Hoogstraten had wrongfully and without the knowledge or consent of Mr Raja transferred of two of the Properties into the name of Rarebargain and one in the name of Castries. Mr Raja claimed (as against Mr van Hoogstraten) an account of all sums lent on the security of the Properties and (as against Rarebargain and Castries) a declaration that they held the Properties transferred to them as trustees for Mr Raja.

[9]In their Defences Rarebargain and Castries pleaded that they were beneficial owners of the properties transferred to them. It is unnecessary on this application to consider further the issues between Mr Raja and Rarebargain and Castries.

[10]In his Defence dated the 2nd June 1994 (the briefest of documents) Mr van Hoogstraten pleaded that, subject to one qualification, all the loans referred to by Mr Raja were made to him by Unifox Properties Limited (“Unifox”). The one qualification was that after the compulsory liquidation of Unifox on the 19th February 1992 he made a loan of £11,000 to Mr Raja or his son (“the £11,000 Loan”) in respect of which Mr Raja gave to Mr van Hoogstraten the land certificates in respect of three of the Properties and Mr van Hoogstraten registered notice of deposit with him of those land certificates at HM Land Registry. Mr van Hoogstraten conceded before me that he still holds these land certificates and that his registration continues to subsist. Mr van Hoogstraten denied that he had received any income from any of the three of the Properties.

[11]On the 22nd April 1999, after a heavily contested hearing, Master Bowman determined in favour of Mr Raja an application by Mr Raja for permission to serve an Amended Statement of Claim. By the Amended Statement of Claim:(1) Mr Raja further particularised the loan and security agreements with Mr van Hoogstraten on which he relied and in particular stated that Mr Raja provided to Mr van Hoogstraten at the date of the loans (together with the land certificates) blank signed transfers of the Properties;

(2) Mr Raja alleged that Mr van Hoogstraten owed to Mr Raja fiduciary duties and the duties of a constructive trustee in relation to the land certificates and properties charged and a duty to account for rents received; (3)Mr Raja alleged that Mr van Hoogstraten fraudulently completed and used the blank transfers to transfer two of the Properties to Rarebargain and one to Castries and in an attempt to transfer a further property, 62 Roundhill Crescent, Brighton (“Roundhill”) to Barnhill Investment Limited (“Barnhill”). In the case of each transfer it was alleged that Mr van Hoogstraten caused persons to purport to witness the signature of Mr Raja on the blank transfer when they had not done so; (4) Mr Raja alleged that Mr van Hoogstraten deliberately concealed his wrongful transfer of properties and his failure to account for rents, other income receipts and repayments; (5) Mr Raja pleaded that in the case of each transfer Mr van Hoogstraten conspired with the transferee to deprive Mr Raja of the property by unauthorised and/or forged and/or bogus transfers. In addition to the relief previously claimed Mr Raja sought: (1) rectification of the Land Registry in respect of the three properties held by Rarebargain and Castries as trustees; (2) damages for conspiracy; and

(3) restitutionary relief.

[12]Mr van Hoogstraten gave notice of appeal from the decision of Master Bowman. He did not however prosecute the appeal to a hearing before the murder of Mr Raja on the 2nd July 1999, after which the appeal was discontinued.

[13]Mr van Hoogstraten did not plead to the Amended Statement of Claim until the 28th April 2000. In this pleading Mr van Hoogstraten in a more detailed and particularised form very much repeated his earlier defence that he had no part in any loan agreement with the exception of the £11,000 Loan and denied any receipt of capital or income repayments and any failure to account for rent or other income. Mr van Hoogstraten added a complaint that Mr Raja sold Roundhill to Barnhill subject to a (possibly sham) charge (“the Gaughron Charge”) protected by a caution for £37,000 in favour of Mr P Gaughron trading as Crystal Financial Services Limited on the basis that he would remove the charge, but he did not do so.

[14]By his added Counterclaim, Mr van Hoogstraten claimed repayment of the £11,000 Loan and interest and payment of the sum necessary to discharge the Mr Gaughron Charge. In the course of a discussion of this claim at the hearing, it became clear that, if there was any claim in respect of the existence of the Gaughron Charge, the claim would have to be by Barnhill, and not Mr van Hoogstraten.

[15]Mr van Hoogstraten by an application notice dated the 13th June 2001 applied for an order setting aside the order of Master Bowman on the ground that Mr Raja had obtained the order (and in particular permission to amend) by fraud in his affidavit evidence in support of the application. In particular Mr Raja had alleged that Mr van Hoogstraten had dishonestly procured the transfer to and registration in the name of Castries and Unifox of two properties which Mr Raja had purchased in his own name, but Mr van Hoogstraten adduced documentary evidence that in fact Mr Raja had agreed on completion of their purchases that they should be registered in the names of Castries and Unifox. By an order dated the 26th November 2001 I directed Mr van Hoogstraten to serve Points of Claim on this application and the Claimant to serve Points of Defence. In his Points of Claim Mr van Hoogstraten contended that the order of Master Bowman should be set aside as procured by the conscious and deliberate dishonesty of Mr Raja and/or his suppression of material facts. In his Points of Defence dated the 15th March 2002 the Claimant admitted the error in the Amended Statement of Claim in respect of the two properties and stated that he had agreed with Mr van Hoogstraten on or very shortly before completion of his purchase of those properties that the properties should be registered in the names of the companies as nominees for him: he denied that there was any conscious or deliberate dishonesty.

[16]Thereafter the Claimant applied for permission to recast his pleading (including the correction of the above error) in the form of a Re-Amended Particulars of Claim. That application and Mr van Hoogstraten’s application to set aside the order of Master Bowman came before Peter Smith J who gave judgment on those applications on the 4th July 2002. Peter Smith J held that the issue raised on Mr van Hoogstraten’s application could only be determined at trial, for a major issue was credibility: either Mr Raja or Mr van Hoogstraten had lied extensively. He remarked that Mr Raja was no longer available to explain the apparent inconsistency in his affidavit evidence or the significance of earlier documentation and that, if Mr van Hoogstraten were convicted of murder, the court would be likely to very sympathetic to any difficulties that the Claimant might have in this regard.

[17]The Judge went on to consider the Claimant’s application for permission to re-amend. He considered that application on the basis that the trial judge should be at liberty to revoke any permission which he (Peter Smith J) should grant if it flowed from Master Bowman’s order and if the trial judge decided to set aside Master Bowman’s order. After a full and detailed analysis of the pleadings he held that the application for permission to re-amend should be granted on that basis.

[18]The Re-Amended Statement of Claim dated the 29th July 2002 involved abandoning as a document the Amended Statement of Claim and starting afresh. The pleading made plain that the terms of the loan agreement provided that Mr Raja should provide Mr van Hoogstraten with “blank signed and/or sealed transfers” in relation to the properties deposited as security and that he did so provide them; that two properties were transferred into the names of Castries and Unifox; that some of the Properties were sold prior to commencement of the proceedings and their proceeds of sale were applied in repayment of the loans; that the loans made by Mr van Hoogstraten had been fully repaid out of sums received by him; and that Mr van Hoogstraten no longer had any right to hold any of the Properties as security. But there was no factual change of any significance.

[19]On the 7th November 2002 Mr van Hoogstraten served a very lengthy and detailed Re-Amended Defence and Amended Part 20 Counterclaim in which Mr van Hoogstraten further distanced himself from any (save the single admitted) dealing with Mr Raja and made a detailed challenge to the contents of the Re-Amended Statement of Claim and Mr Raja’s credibility.

[20]On the 18th January 2006 the Claimant served a Re-Re-Re-Amended Particulars of Claim. The only material amendment was the addition of paragraphs pleading my holding on the Preliminary Issue that Mr van Hoogstraten’s was responsible for the murder of Mr Raja.

EVIDENCE

[21]In support of this application the Claimant has submitted witness statements by Mr Pabla, a solicitor employed by Healys (the Claimant’s solicitors), Ms Patricia Hare, a legal executive employed by Healys, and Mr Amjad Raja, the youngest son of Mr Raja.

[22]The thrust of the evidence is that the murder of Mr Raja has prevented the trial proceeding on an equal footing and jeopardised a fair trial because:(1) Mr Raja (the vital witness for the Claimant) can no longer be called to detail and explain his complex and unusual business transactions with Mr van Hoogstraten. (Leaving aside Mr van Hoogstraten) only Mr Raja was able to speak of his dealings with Mr van Hoogstraten;

(2) to a very large part the agreements, negotiations, discussions and events directly involved Mr Raja and could only realistically be the subject of oral evidence;

(3) Mr Raja made no significant witness statement before his murder;

(4) the problem for the Claimant is aggravated by the fact that Mr van Hoogstraten’s Amended Defence and Counterclaim, which was the first informative pleading on his behalf raising issues of authenticity of documents as well as putting in issue all the relevant facts, (though meant to be served in June 1999) was not served until after the murder when instructions on its contents could no longer be obtained;

(5) the murder has enormously increased the difficulties, cost and complexity of preparation of the case as a consequence of depriving the Claimant of access to Mr Raja for instructions;

(6) the cost of preparing for trial is enormously increased with the need (in place of Mr Raja’s oral evidence) to rely on hearsay notices in respect of documents containing statements, comments, annotations or entries by Mr Raja;

(7) enormous extra costs have already been incurred against a background where: (a) Mr Raja’s estate has limited funds; (b) Mr van Hoogstraten has, or has access to, vast funds; and (c) Mr van Hoogstraten has refused to meet orders for costs against him (totalling over £530,000) and has made plain that he will not pay anything to the Claimant. Indeed he has repeatedly told me in the course of these proceedings that he will not comply with any order with which he does not agree and has acted accordingly;

(8) there are grounds to fear witness intimidation by Mr van Hoogstraten at any trial even as such intimidation was present at the criminal trial and the trial of the Preliminary Issue (as recorded in paragraphs 55, 74 and 77 of the Preliminary Issue Judgment); and

(9) it would be highly disturbing (indeed traumatic) for members of Mr Raja’s family to have to give evidence on the limited matters on which they can assist the court and be cross-examined by Mr van Hoogstraten acting in person both because of the murder of Mr Raja and because of the threat of “action other than legal action” made by Mr van Hoogstraten against the Raja family since my judgment on the Preliminary Issue. (It should be noted that Mr van Hoogstraten made threats against Mr Raja before arranging his murder: see paragraphs 20 and 107 of the Preliminary Issue Judgment.)

[23]Mr van Hoogstraten has not answered this evidence or put in any evidence on this application.

APPLICATIONS FOR DOCUMENTS

[24]Though the date for trial of this application was fixed as long ago as February 2006 and Mr van Hoogstraten was then (and thereafter) notified of the date, without any prior notice at the hearing of this application Mr van Hoogstraten made two applications for orders that the Claimant provide copies of certain documents. One application related to documents of which Mr van Hoogstraten’s former solicitor, Mr Minaides, of Minaides Robson has copies, but over which Mr Minaides is asserting a lien for unpaid fees. The other related to documents which clearly at one time were in the possession of Mr van Hoogstraten and indeed were pleaded by him. Some of the documents were immediately available. As regards the remainder, the position of the Claimant was that the documents requested were in their archives and that (in particular having regard to the history of refusals by Mr van Hoogstraten to satisfy any costs orders made against him) they were only willing to go to the substantial expense of retrieval of them if Mr van Hoogstraten agreed to pay, and provided security for payment of, the costs of retrieval which would be substantial. Mr van Hoogstraten however made plain that he was only willing to pay the costs of copying the documents. In the circumstances having regard to the need to adjourn this hearing if the orders sought were granted and the financial burden to be imposed on the Claimant it would have been grossly unjust to make the orders which he sought and I declined to do so.

LEGAL ISSUE

[25]It is clear from an analysis of the pleadings that the issues in this case are issues of fact turning on the relative credibility of Mr Raja and Mr van Hoogstraten. As I have already stated the critical issues are:(1) whether Mr Raja and Mr van Hoogstraten entered into the oral agreements for the loan and provision of security alleged by Mr Raja;

(2) whether Mr Raja and Mr van Hoogstraten personally were the parties to those agreements;

(3) what were the terms of the agreements;

(4) what payments in respect of capital and interest were made by Mr Raja to Mr van Hoogstraten. The murder of Mr Raja by Mr van Hoogstraten was intended to bring an end to the action or secure a settlement highly advantageous to Mr van Hoogstraten. Mr van Hoogstraten saw (and correctly saw) that this was likely to be the outcome of the murder, for it removed the vital witness in support of Mr Raja’s case and left Mr van Hoogstraten (subject only to cross-examination) a clear run. Likewise (as I have already stated) it is clear that the issue on Mr van Hoogstraten’s application to set aside Master Bowman’s order turns on the relative credibility of Mr Raja and Mr van Hoogstraten.

[26]If there could be any doubt (which there cannot) that the issue is credibility, this is confirmed by the terms of Mr van Hoogstraten’s Re-Amended Defence and Mr van Hoogstraten’s skeleton argument and submissions on this application. The thrust of his case is a root and branch challenge to the conduct, character and credibility of Mr Raja. He seeks to make the case that Mr Raja’s allegation could not survive detailed examination against the relevant documents and Mr van Hoogstraten’s own testimony.

[27]There is force in Mr van Hoogstraten’s submission that on the pleadings during Mr Raja’s lifetime there were substantial factual hurdles facing his case, but they were not insuperable. There is no reason to believe that Mr Raja could not have explained all that he did and all that happened in a satisfactory manner and established his case as pleaded. Mr van Hoogstraten however by murdering him set out to deprive him of the opportunity to do so and succeeded in doing so. The hurdles facing the Claimant today are practically insuperable. I must consider the legal consequences.

[28]Striking out Mr van Hoogstraten’s Defence and Counterclaim and barring him from defending the action and prosecuting his counterclaim and proceeding with his application challenging Master Bowman’s order is a draconian step which can only be ordered in extreme circumstances and as a last resort.

Article 6(1) of the European Convention on Human Rights

provides that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent tribunal established by law. The right of access to the court constitutes an element inherent in that right, but it is not an absolute right and may be subject to limitations e.g. in respect of vexatious litigants, security for costs, statutory limitation periods and special provision in case of minors and persons of unsound mind: the right of access calls for regulation according to the needs and resources of the community and individuals: Ashingdane v. UK

(1985) 7 EHRR 528

, paragraph 57.

[29]Strasbourg jurisprudence has established that:(1) such limitations as are imposed by Contracting States on access to the court must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired;

(2) a limitation will not be compatible with Article 6 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved; and

(3) where there is a review by a judge of the grounds for exercise of the power of regulation refusing access (e.g. to a vexatious litigant), there is no such denial of the essence of the right of access to the court and the regulation may be regarded as necessary and therefore as a legitimate aim.

[30]Power to strike out a case exists under CPR 3.4(2) and the inherent jurisdiction of the court (which is preserved by CPR 3.4(5)). It is not obvious on the face of the language of CPR 3.4(2) that that rule is applicable in a case such as the present. It is not readily apparent to me that the Defence and Counterclaim disclose no reasonable ground for defending the claim or bringing the counterclaim or that the pleading is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings or that there has been a failure to comply with a rule, practice direction or court order. But it is sufficient in any event to decide this application by recourse to the inherent jurisdiction. If that jurisdiction is exercised when it is appropriate for it to be exercised, no contravention of Article 6 or common law principles is involved: see Ebert v. Venvil

[2000] Ch 484

[31]The authorities establish that there are two separate (though related) grounds on which the jurisdiction may be exercised: see Arrow Nominees Inc v. Blackledge

[2000] BCLC 187

and Asiansky v. Bayer-Rosin

[2001] EWCA 1792

. The first ground is where the conduct of the party in question has jeopardised a fair trial or prevented the court from doing justice. In my judgment on the facts of this case there can be no doubt that Mr van Hoogstraten by his murder of Mr Raja has done exactly that and more. The removal of the vital witness for the Claimant renders a fair trial no longer possible and renders any further proceedings unsatisfactory. Mr van Hoogstraten clearly recruited the thugs to murder Mr Raja because he could not face with equanimity the prospect or outcome of a fair trial with the attendance of Mr Raja at the trial. Striking out Mr van Hoogstraten’s Defence and Counterclaim and his application to set aside Master Bowman’s order is plainly proportionate and just: there are available no counter-balancing measures which can secure a fair trial or fair result at a trial and no other less draconian alternative order can achieve justice. Mr van Hoogstraten has by his own actions denied himself the right to proceed with his Defence and Counterclaim and his application: see R v. Sellick

[2005] 1 WLR 3257

at 3275 paragraph 52.

[32]The second ground is that the conduct of Mr van Hoogstraten is such a flagrant abuse of process and such a challenge to the administration of justice that (irrespective whether a fair trial is possible) an order to this effect is required in the interests of the administration of justice. No greater challenge to the administration of justice and no greater perversion of the course of justice can be conceived than the murder of the opposing party to obtain an advantage in the litigation. It is conduct which no court, with its necessary concern for the administration of justice can tolerate. Such an order is both proportionate and necessary.

[33]In reaching the conclusion which I have expressed above, I have had in mind that the order of striking out is a last resort and the need to balance the personal right of Mr van Hoogstraten to a hearing of his case against the personal rights of the Claimant to a fair trial and the general interest of the community. I have concentrated on the intrinsic justice of the application in the light of the overriding objective spelt out in CPR 1.1. I have no doubt that on the facts of this case the intrinsic justice requires the making of the order sought and that the order sought is the only proper resort for the reasons which I have given. I should however add that, if I had been in any doubt (which I am not), I would have found reinforcement in my conclusion in the matter set out in the Claimant’s evidence and unchallenged in any evidence by Mr van Hoogstraten, and most particularly:(1) the state of fear and trepidation which he has deliberately created in the Raja family if the action proceeds and they have to give evidence and face cross-examination by Mr van Hoogstraten;

(2) the oppressive manner in which he has conducted this litigation, and most particularly his attitude to court orders and his conduct in causing the Claimant to incur costs in excess of £530,000 in respect of which they have obtained orders for payment and in refusing to pay a penny. His conduct of this litigation has been grossly oppressive and a deliberate challenge to the administration of justice.

FORM OF RELIEF

[34]I turn to the form of relief to which the Claimant is entitled in consequence of the striking out of Mr van Hoogstraten’s Defence and Counterclaim and application. This will be a matter for argument when I hand down judgment, but in principle (as it seems to me) there should be:(1) a declaration that Mr van Hoogstraten made the pleaded loans to Mr Raja secured by the pleaded charges on the Properties;

(2) a declaration that the loans (including the £11,000 Loan) and all interest and other sums due were fully repaid and all securities for the same (so far as unsold) were redeemed on the 8th October 1993 when the action was commenced;

(3) an enquiry as to which of the Properties charged by Mr Raja for such loans had been sold and their proceeds applied in discharge of the said loans on the 8th October 1993 and as to which had not been so sold (“the Unsold Properties”);

(4) all proper accounts, inquiries and directions and in particular an account and inquiry in respect of all dealings with the Unsold Properties and all rent, proceeds of sale and other sums which have been received by Mr van Hoogstraten since the 8th October 1993 in respect of the Unsold Properties;

(5) the return to the Claimant of all land certificates and blank transfers retained by Mr van Hoogstraten and vacation of all entries at HM Land Registry in respect of such charges (including the notice of deposit of the land certificates in respect of the £11,000 Loan).

[35]As at present advised on the material before me, I can see no purpose (if otherwise such relief were appropriate) in making any order in respect of the claims in conspiracy, breach of fiduciary duty, breach of contract or restitutionary relief. The claim for an account as mortgagor against the mortgagee in respect of Properties on the basis that the charges on the Unsold Properties were redeemed on the 8th October 1993 should provide ample relief. I shall accordingly stand over the claim to such other relief. The entitlement of the Claimant should be the same whether the charge was granted to Mr van Hoogstraten or (at his instance) to anyone else.

[36]For the avoidance of doubt I should point out that:(1) this application relates only to charges granted by Mr Raja, and not to charges granted by his companies, for those companies are not parties to these proceedings; but so far as charges granted by the companies secured loans to Mr Raja, the charges were redeemed on the 8th October 1993 and the companies can claim redemption and like relief on this basis in separate proceedings ;

(2) in cases where (as pleaded by the Claimant) properties were at the instance of Mr van Hoogstraten vested in nominees for Mr Raja, Mr van Hoogstraten is under an obligation to procure the transfer of the properties unencumbered to the Claimant;

(3) Mr van Hoogstraten told me that he had sold for £60,000 three charges granted to him by Mr Raja to raise funds to pay for his legal costs. He consented to an order to produce the assignments, to identify the purchasers who were (as he told me) associated companies and to identify the account into which the proceeds were paid and the payments out of this account. By a letter dated the 30th May 2006, he disclosed that he sold the charges to Mr M R Hamilton and that he applied £17,995 in payment of living expenses and the balance in payment of £40,000 to Minaides Robson, £2,015 for the transcripts and £500 in court fees. Questions arise in respect of this sale and application of funds. But it is sufficient to say for the purpose of this judgment that in the case of these assignments the effect of the redemption on the 8th October 1993 is that the assignee ceased to have any continuing security or interest in any debt on the part of Mr Raja.

order

(a) to halt the prosecution of this action by Mr Raja against him; and

(b) obtain the release or settlement of Mr Raja’s claims on terms highly favourable to Mr van Hoogstraten; (2) the murder has jeopardised a fair trial of the action and counterclaim (most particularly) by preventing Mr Raja giving evidence; and (3) such an order is required to safeguard the interest of the administration of justice. Mr van Hoogstraten for his own reasons (and not for reasons of non-availability of resources) has decided to act in person on this application. In the circumstances in view of the importance of the legal issues raised and the lack of balance in representation I invited the Attorney General to appoint an advocate of the court. The Attorney General appointed Mr Hugo Keith. I am greatly indebted to Mr Keith for his invaluable assistance. THE ACTION