England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/02/2005

Mr Justice Lightman:

INTRODUCTION

1. The late Mohammed Raja ("the Deceased") was murdered on the 2^nd July 1999. On the 19^th July 2002 following a trial before Newman J, a Mr Croke and a Mr Knapp were convicted of his murder and Mr Nicholas Van Hoogstraten ("Mr Van Hoogstraten") was convicted of manslaughter. The conviction of Mr Hoogstraten was later quashed and he was acquitted.
2. There are four actions brought by members of the family of the Deceased against Mr Van Hoogstraten relating to the death of the Deceased. In the three actions commenced in 2002 in the Queen's Bench Division ("the QB Actions") Mrs Starbibi Raja (as administratrix of the estate of the Deceased), and Mrs Waheid Raja and Mr Rizvan Raja (who were present when the Deceased was killed) each claim damages against Mr Van Hoogstraten for advising, ordering, encouraging or persuading Mr Knapp to murder the Deceased. In the fourth action now before me commenced in 1993 in the Chancery Division ("the Chancery Action") the Claimant (representing the estate of the Deceased) seeks to recover properties which he claims are beneficially owned by the Deceased's estate and held by Mr Van Hoogstraten as nominee and chargee, an account and damages for conspiracy. By way of an amendment in the Chancery Action made after the death of the Deceased, the Claimant added a claim that Mr Van Hoogstraten had instructed accomplices to murder the Deceased or cause him serious harm or intimidate him in order to prevent him proceeding with the Chancery Action, that by so acting Mr Van Hoogstraten was guilty of abuse of process and of perverting the course of justice, and that for that reason Mr Van Hoogstraten's defence and counterclaim should be struck out and judgment should be entered for the Claimant in the action.
3. It is unnecessary to recount the full history of the Chancery Action. It is sufficient to say that Peter Smith J found Mr Van Hoogstraten in contempt and acceded to the Claimant's application:

i) to strike out Mr Van Hoogstraten's defence and counterclaim;

ii) to debar him from defending the action on liability;

iii) to enter judgment for the Claimant; and

iv) to issue a writ of sequestration.

4. On appeal the Court of Appeal allowed Mr Van Hoogstraten's appeal, discharged the order of Peter Smith J, made a series of orders reversing transactions entered into pursuant to or consequent upon the order of Peter Smith J and ordered the payment by the Claimant of £90,000 to Mr Van Hoogstraten on account of costs. (As set out by the Claimant's solicitor Mr Lightfoot in his witness statement) the Claimant had serious difficulties in complying with provisions of the order of the Court of Appeal and in particular in raising the necessary funds for this exercise. He needed time, and the cooperation of Mr Van Hoogstraten would have been invaluable, most particularly in setting off against the £90,000 payable on account of costs the £66,000 odd owed by Mr Van Hoogstraten to the Claimant's solicitors. Technically Mr Van Hoogstraten was not obliged to agree to this set-off, but it would have been reasonable for him to have agreed and his refusal occasioned the need for the Claimant's solicitors to commence separate proceedings against Mr Van Hoogstraten for a third party debt order to secure the availability of that debt due to them for this purpose. The form of order agreed to by Mr Van Hoogstraten at the hearing before me belatedly gave effect to such a set-off.
5. To secure compliance with the order of the Court of Appeal and trial directions on the 17^th December 2004 Mr Van Hoogstraten made application for relief variously stated in the application as "unless orders" requiring compliance within a time limit and for permission to enter judgment, and in paragraphs 9 and 10 of his counsel's skeleton argument he also sought trial directions. (Mr Van Hoogstraten told me that somewhat remarkably neither he nor his solicitor Mr Berg who attended the hearing before me knew of or read the skeleton argument and in particular paragraphs 9 and 10, until a few days ago). At the hearing of the application before me (at which both the Claimant and Mr Van Hoogstraten were legally represented) the witness statement of Mr Lightfoot was read without objection or adverse comment notwithstanding the fact that it was only produced in the course of the previous day. Speedily all the matters outstanding under the order of the Court of Appeal were amicably resolved by the parties or myself. But it was apparent to all parties that it was a matter of urgency that both the Chancery Action and the QB Actions, and in particular the issue whether Mr Van Hoogstraten was responsible for the death of the Deceased, should be determined and that the hearing should be utilised as a Case Management Conference. After detailed consideration of the relevant considerations and after a short adjournment during which Mr Berg of Mr Van Hoogstraten's solicitors sought in vain instructions on the telephone from Mr Van Hoogstraten, by agreement I gave directions as set out in a draft of the order agreed by counsel setting a timetable culminating in a trial date of the 14^th November 2005. Mr Berg did not inform the court that he had been unable to obtain instructions from Mr Van Hoogstraten. A further Case Management Conference was fixed for the 12th May 2005.
6. The order included an undertaking by the Claimant to apply in the Queen's Bench Division to transfer the QB Actions to the Chancery Division and to lift the stay on those proceedings. Implicit in the order was the undertaking by Mr Van Hoogstraten to cooperate in effecting that transfer. As regards costs, in all the circumstances I decided that justice required that the costs of the application and Case Management Conference should be Mr Van Hoogstraten's costs in cause. No application was made for permission to appeal.
7. Mr Van Hoogstraten thereafter determined to dismiss his solicitors and counsel and apply to discharge the order which I made. On the 9^th February he sent to me a witness statement and a copy of an exchange of letters with his (now former) solicitors.
8. Mr Van Hoogstraten in his witness statement in support of his application and his letter to his solicitors dated the 3^rd March 2005: (1) stated his position that he had not been consulted on the matters the subject of my order and that counsel had no authority to agree them; (2) gratuitously abused in extreme terms Newman J and Peter Smith J; (3) alleged dishonesty and perjury in the statement of Mr Lightfoot; (4) made clear that he would not comply with the Case Management directions in my order; and (5) stated that he would appeal my order as to costs.
9. In regard to the first and third of these contentions, I should point out: (1) that his counsel had clearly indicated in his skeleton argument that such Case Management directions were required and should be given at the hearing before me, that counsel had implied authority at the hearing to agree them, and that in any event, whether he agreed them or not, I would in exercise of my Case Management powers have made them; and (2) that no suggestion was made at the hearing of any impropriety by Mr Lightfoot or any deficiency in his evidence.
10. I shall first deal with Mr Van Hoogstraten's application for permission to appeal my order as to costs. Any such application should have been made (if at all) at the hearing before me. No such application was made, perhaps reflecting recognition by counsel that in all the circumstances that order was one which I was entitled to make. I refuse permission to appeal because the order which I made was one which I considered to be just and which was open to me in the exercise of my discretion. In my judgment there is no prospect of a successful appeal. So far as costs are occasioned by the renewed application for permission today, those costs have been thrown away by the failure to apply on the 26^th January 2005.
11. I turn to the challenge to the Case Management directions. Mr Van Hoogstraten stated to me that there would be no timetable without his consent. That is not a maintainable position. The directions which I gave were agreed and accepted by both sides and the court as achievable and desirable and I can see no basis for any reconsideration of them. Mr Van Hoogstraten complained most particularly about the directions regarding the QB Actions in which he was acting in person. He accepted that the same issue arose in those actions as in the Chancery Action, but he declined to tell me the grounds of his objection to the order that the QB Actions be transferred to the Chancery Division and that there be a trial as the first stage in all four actions of the issue regarding his responsibility for the death of the Deceased. Mr Van Hoogstraten has decided to act in person but that should not be allowed to derail the timetable. There is no evidence before me that he cannot afford to continue to instruct solicitors and counsel. Indeed the evidence before me indicates that he owns assets of very substantial value which may be made available for this purpose. Paragraph 10 of his witness statement refers to assets of himself and his family of over £160 million.
12. Mr Van Hoogstraten complained to me about the subsistence of certain freezing orders on his assets. There is no application before me in respect of those orders. As both I and counsel for the Claimant made plain at the hearing, the necessary funds will be released to him to conduct the litigation. Such release of funds has been permitted previously on the usual term that he disclose the source of the funds released. In respect of Mr Van Hoogstraten's complaint about the continuation in force of the freezing orders, I made plain to him that it was open to him at any time to apply for their discharge or modification and that such an application may require him to disclose his assets. If he makes such an application, it should be dealt with expeditiously.
13. I made plain to Mr Van Hoogstraten that I intend to require the parties to abide by the agreed timetable. Mr Van Hoogstraten has a duty to do so and he can do so. The first obvious step is to retain solicitors and counsel. He should know that his failure to do so may have serious adverse consequences for him. The trial should commence on the 14^th November 2005. The duty to abide by the timetable binds both parties.
14. Mr Van Hoogstraten despite my objection continued his gratuitous abuse of Peter Smith J in his oral submissions to me. I made plain to Mr Van Hoogstraten at the hearing and I make plain again in this judgment that gratuitous abuse of the judiciary or any one else in the course of these proceedings is unacceptable and invites sanctions. Such behaviour does not assist his case.
15. In the light of concerns expressed to me by Mr Van Hoogstraten I should make clear that: (1) nothing in the order of the 26^th January 2005 precludes Mr Van Hoogstraten applying e.g. to strike out (if good grounds exist) the QB Actions; (2) nothing in my order precludes Mr Van Hoogstraten applying (if good grounds exist) for security for costs, though I should say that it is not immediately apparent to me that good grounds do exist; and (3) nothing in the order made on the 26^th January 2005 or today precludes Mr Van Hoogstraten taking proceedings (if good grounds exist) against his legal representatives in respect of his matters of complaint against them, though again I can see on the material before me no basis for them.
16. I accordingly dismiss the application with costs.