England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

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

Mr Justice Lightman:

INTRODUCTION

1. There is due to be heard by me on the 21^st November 2005 the first stage (colloquially referred to as "the Preliminary Issue") in four actions, three of which were commenced in the Queen's Bench Division and later transferred to the Chancery Division and the fourth (referred to as "the Chancery Action") commenced in the Chancery Division. The Preliminary Issue is an issue which arises in all four actions, namely whether Mr van Hoogstraten was responsible for the murder of the late Mohammed Sabir Raja ("Mr Raja"). Mr van Hoogstraten is a defendant in all four actions. The date of commencement of the hearing was originally the 14^th November 2005 but had to be postponed until the 21^st November 2005 because preparations were delayed by a belated application by Mr van Hoogstraten and companies closely connected with him to discharge a freezing order. The issue which I have to determine is whether I shall accede to the application of Mr van Hoogstraten to delay the date of commencement further.

HISTORY OF PROCEEDINGS

2. I should set out a brief account of the history of these proceedings. In the Chancery Action commenced on the 8^th October 1993 Mr Raja brought proceedings against (in particular) Mr van Hoogstraten, initially for an account, and later also for fraud. On the 2^nd July 1999 Mr Raja was murdered. On the 8^th November 1996 Mr A S Raja was appointed to represent the estate in the action.
3. Mr Knapp, Mr Croke and Mr van Hoogstraten were prosecuted for the murder of Mr Raja. On the 19^th July 2002 Mr Knapp and Mr Croke were convicted and on the 26^th October 2003 their applications to the Court of Appeal for permission to appeal were dismissed. There is no further outstanding application on their part. On the 22^nd July 2002 Mr van Hoogstraten was convicted of manslaughter and sentenced to a term of imprisonment. On the 23^rd July 2003 the Court of Appeal quashed the conviction of Mr van Hoogstraten. At some unspecified date he was released from prison. On the 2^nd December 2003 Sir Stephen Mitchell quashed his re-indictment for manslaughter and on the 12^th December 2003 the Court of Appeal dismissed the Crown's appeal.
4. In the Chancery Action on the 27^th August 2002 a worldwide freezing order was made against Mr van Hoogstraten and companies with which he was closely connected (which have very substantial assets) and this order was continued on the 10^th September 2002. The order contained a £5 million cap and provided that it should be released if Mr van Hoogstraten provided security in the sum of £5 million. Mr van Hoogstraten says that in 2002 whilst in prison he twice tried to make applications to discharge the freezing order but for some reason (perhaps the loss of papers by the court) the applications did not come before the court. On the grounds of alleged non-compliance with court orders judgment was entered against Mr van Hoogstraten and sequestrators were appointed, but the Court of Appeal on the 11^th October 2004 allowed Mr van Hoogstraten's appeal, set aside the judgment and discharged the sequestration order.
5. After the murder of Mr Raja, his estate and members of his family commenced three new actions against Mr van Hoogstraten in the Queen's Bench Division for damages alleging his participation in the murder of Mr Raja.
6. On the 23^rd November 2004, on a hearing for direction, I made orders directed at resolving all outstanding issues relating to the sequestration. These orders provided for the taking of accounts, and the determination of the issue as to liability for the damages caused by, and the costs and expenses of, the sequestration. In this regard at later hearings I directed that the sequestrators should release all sequestrated assets to Mr van Hoogstraten, that one property should stand as security for all sums due to and all liabilities of the sequestrators, that the accounts of the sequestrators should be taken by the Master, and that the hearing of the issue as to liability for the damages caused by and for the costs and expenses of the sequestration should be heard in January 2006 after the conclusion of the Preliminary Issue.
7. On the 26^th January 2005 at a hearing attended by junior counsel for Mr van Hoogstraten and for the Claimant, with the concurrence of counsel I gave directions for the transfer of the Queen's Bench Actions to the Chancery Division and for the trial as the first stage in all four actions of the distinct issue whether Mr van Hoogstraten was party to the killing of Mr Raja (the Preliminary Issue). I gave trial directions and I directed that the trial should commence on the 14^th November 2005 with a time estimate of six weeks.
8. Mr van Hoogstraten did not attend the hearing. He evidently took great exception to the order made and since that date has made every effort to frustrate the trial of the Preliminary Issue on that date.
9. His first step was to dismiss his counsel and solicitors and begin to act in person. The reason for this decision had nothing to do with lack of access to funds. As he made clear to me, the decision was made because he saw it as to his advantage to act in person. Mr van Hoogstraten has made his home in Zimbabwe and his continual lengthy stays there without any legal representation in London have made the progress of proceedings exceptionally difficult, most particularly for the claimants.
10. Mr van Hoogstraten made application to me on the 11^th February 2005 to discharge the order for directions made on the 26^th January 2005. I dismissed the application with costs and Mr van Hoogstraten did not appeal. 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 Mr van Hoogstraten 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" (p.14 of transcript).
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 J) 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." (p.15)

12. 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 (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."

13. In my judgment given on the application made on the 11^th 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.
14. A further case management conference took place on the 12^th May 2005. At this hearing (at p.31) 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 and freedom in relation to applications to the court; and when counsel for the claimants made reference to Mr van Hoogstraten's decision to act in person, Mr van Hoogstraten responded (at p.43): "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 its 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 (p.44). Mr van Hoogstraten (at p.43) told me that he was making an application to discharge the freezing order: it was being formulated. None was in fact forthcoming.
16. A further hearing took place on the 12^th July 2005. 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 12^th July 2005 ("the Court of Appeal Decision"). In my judgment on that application given on the 29^th July 2005 I said:

"… 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 11^th 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 11^th 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.

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 11^th 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 4^th 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."

17. A further case management conference took place on the 6^th October 2005. In the course of that hearing, in the light of continuing repeated complaints by Mr van Hoogstraten about 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. On the 17^th October 2005 the Claimants' solicitors wrote to Mr van Hoogstraten requesting him to state his proposals for the release of funds for the purpose of enabling him to obtain legal representation. Mr van Hoogstraten never replied. I heard the companies' application on the 1^st, 3^rd and 4^th November 2005 when after hearing only part of the companies' opening (with my encouragement) a compromise was reached acceptable to both parties in respect of the period until after judgment on the Preliminary Issue. Mr van Hoogstraten's application was heard on the 9^th November 2005 when (again with my encouragement) a like compromise was reached.

THE APPLICATION

18. Mr van Hoogstraten's application to adjourn the trial is made on a number of grounds. I shall consider each in turn.

(a) Issue of Fraud

19. The first ground is that there should be tried at the same time, or instead of, the issue as to responsibility for the murder the issue raised in the Chancery Action whether (as alleged by Mr Raja) Mr van Hoogstraten was dishonest. This application must fail for the following reasons:

i) the order for trial of the Preliminary Issue has never been appealed and was not the subject of the recent appeal by Mr van Hoogstraten to the Court of Appeal;

ii) the Preliminary Issue is common to all four actions. It is the issue in the QBD Actions and may be determinative of the Chancery Action, for if Mr van Hoogstraten was responsible, he may (as the estate of Mr Raja contends) for that reason be precluded from defending that action. If Mr van Hoogstraten is precluded from defending, the issue of fraud may not need ever to be tried;

iii) the issue of fraud does not arise under the Preliminary Issue as it stands. Motive is relevant: whether Mr van Hoogstraten perpetrated a fraud is not relevant. I do not read the judgment of Carnwath LJ in the Court of Appeal Decision as indicating otherwise, as suggested by Mr van Hoogstraten;

iv) the parties have or should have since January of this year proceeded on the basis that Mr van Hoogstraten's responsibility for the murder was the sole issue at the hearing this November. The court has proceeded on this basis and has set aside the time in its calendar for this purpose;

v) the issue of fraud is a large and substantial one requiring (as Mr van Hoogstraten told me) matters of expert evidence. Preparation for trial of that issue would require at least four months and I can see no justification: (a) for divorcing that issue from the rest in the case; or (b) for determining it before the court has ruled whether Mr van Hoogstraten should be precluded from defending the Chancery Action.

20. In my judgment application on this ground is designed and can only operate to postpone the trial of the Preliminary Issue, has no merits and ought to be rejected.

(b) The Crown Prosecution Service

21. The second ground put forward is that the Crown Prosecution Service has failed to produce documents which Mr van Hoogstraten says he requires for the trial. Mr van Hoogstraten alleges wholesale dishonesty by the Crown Prosecution Service in the murder investigation and trial and that the Crown Prosecution Service is refusing to disclose documents in order to cover up that dishonesty. (Mr van Hoogstraten has been free with allegations of fraud throughout these proceedings.) I have told Mr van Hoogstraten that he can make an application to me on notice to the Crown Prosecution Service for their production. Mr van Hoogstraten has now provided counsel for the claimant with a list of the documents required and he has told me that he will approach the Crown Prosecution Service in this regard. If the Crown Prosecution Service unreasonably refuses to cooperate and the documents requested are relevant to the Preliminary Issue, Mr van Hoogstraten can make a further application to me. These matters in no way require or justify any adjournment.

(c) Conviction of Knapp and Croke

22. The third ground is that there are currently developments regarding Mr van Hoogstraten's complaint about the police conduct relating to the prosecution of himself and Mr Knapp and Mr Croke, and that new evidence is becoming available concerning the correctness of the conviction of Mr Knapp and Mr Croke. Mr van Hoogstraten has previously raised issues along these lines when seeking to challenge the correctness of the convictions for murder, and both I and the Court of Appeal rejected those challenges for the reasons given in our judgments on those matters. The new developments referred to do not alter the position.

(d) Legal Representation

23. The fourth ground is that Mr van Hoogstraten now tells me that he intends to instruct solicitors and counsel and that they will require six to eight weeks to prepare for the trial. This application for an adjournment is strenuously opposed. The proceedings are obviously highly stressful and distressful for the Claimants. Beyond this, if the action is postponed for that period, the claimants say that: (1) the further delay in obtaining final judgment in the four actions and the extra costs which the claimants may be put to will operate oppressively on the claimants. The claimants have limited means and that Mr van Hoogstraten is set on delay and exhausting the claimants' assets; (2) that if there was such an adjournment their counsel would not be available until April 2006 and that their costs thrown away would be in the region of £300,000. This is in my judgment a reasonable estimate. The longest adjournment which the availability of counsel permits of is for a week until the 28^th November 2005. If the trial began on that date the period required for the trial should (with effort on all sides) be sufficient to enable it to be concluded by the end of this term or at the latest within a few days after the beginning of next term: counsel's commitments preclude their availability thereafter; and (3) there is reason to doubt whether Mr van Hoogstraten would meet an order for payment of the costs thrown away or indeed any sum awarded in the actions. On the application to discharge the freezing order Mr van Hoogstraten stated that the value of his net assets is practically nil. He included as his primary asset a property registered in the name of Mr Raja which Mr Raja's estate claims to own. His other principal stated assets are claims which have yet to be established for costs against the estate of Mr Raja. Mr van Hoogstraten states that he owes a firm of solicitors some £300,000. This firm was apparently willing to act on credit and is apparently willing to act for him on the Preliminary Issue. Whilst the claimants do not accept the truth of what Mr van Hoogstraten says as to his means, his evidence is indicative of the difficulties likely to be faced on any efforts at recovery and in particular any recovery of the costs thrown away by an adjournment. I think that there is real merit in each of the claimants' contentions.
24. Subject to one qualification I refuse Mr van Hoogstraten's application for an adjournment because it would be grossly unjust to the claimants. I have in mind (besides the contentions made by the claimants) three particular considerations. The first is that in my judgment, notwithstanding Mr van Hoogstraten's evidence, on the material before me Mr van Hoogstraten could at any time raise the necessary funds to instruct solicitors and counsel if he wished. The claimants can find (though they do not require) substantial support for their contention that Mr van Hoogstraten has access to substantial funds from the statements made by Mr van Hoogstraten in a recent televised interview and in press cutting relating to his immense holdings in Zimbabwe. It is plain that some years ago he was enormously wealthy with assets of hundreds of millions of pounds. He claims to have disposed of his wealth but has refused all requests for any documentary evidence to support this claim. Secondly in any event he could have obtained any necessary modification of the freezing order or authorisation from the court. It was a deliberate decision to act in person and then at a late date seek an adjournment to obtain legal representation. It was his deliberate decision not to make any application in respect of those orders despite repeated prompting by me until a very short time ago. If he had made an earlier application he would have obtained at an early date the variations which have now been made and which are acceptable to all parties. Thirdly there is still time for preparation for the Preliminary Issue though this may require counsel burning the midnight oil. The Preliminary Issue is confined to the question whether Mr van Hoogstraten was party to the murder. The principal witness will be Mr van Hoogstraten himself who has already made two witness statements. In respect of each of the witness statements and other evidence relied on by the claimant I have 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. In my judgment competent counsel should be able to prepare in time for the 21^st November 2005.
25. There is one qualification to my refusal. Mr van Hoogstraten has told me today that he will instruct legal representatives. If Mr van Hoogstraten does instruct legal representatives and if they apply to me for an extra week as needed for preparation, I will consider whether the trial should commence on the 28^th November 2005. The 21^st November 2005 will however stand as the trial date unless and until that application is made and determined. The timescale may be disadvantageous to Mr van Hoogstraten, but the balance of justice must require that the hearing proceed on the 21^st November 2005 or at the latest the 28^th November 2005.

CONCLUSION

26. I accordingly direct that the date of the 21^st November 2005 stands unless Mr van Hoogstraten's legal representatives apply for an adjournment until the 28^th November 2005 as necessary to facilitate preparation for trial and that application succeeds. I shall consider any such application on its merits.