England and Wales High Court (Chancery Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Raja v Van Hoogstraten & Ors [2005] EWHC 2575 (Ch) (17 November 2005)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2005/2575.html
Cite as: [2005] EWHC 2575 (Ch)

[New search] [Printable RTF version] [Help]

		Neutral Citation Number: [2005] EWHC 2575 (Ch)
		Case No: CH 1993 R 6492

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

17/11/2005

B e f o r e :

THE HONOURABLE MR JUSTICE LIGHTMAN
____________________

	ASHGAR SABIR RAJA (REPRESENTING THE INTERESTS OF THE ESTATE OF THE LATE MOHAMMED SABIR RAJA)	Claimant
	- and -
	MR NICHOLAS VAN HOOGSTRATEN STITCHACRE LIMITED RAREBARGAIN LIMITED CASTRIES LAND LIMITED	Defendants
IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION	MRS STARBIBI RAJA (in her capacity of the Estate of Mr Mohammed Sabir Raja (Deceased) and in her personal capacity	No. HO 02 XO 2752 Claimant
	-and-
	NICHOLAS VAN HOOGSTRATEN	Defendant
IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION		No. HO 02 2753
IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION	WAHEED ASGHAR RAJA -and- NICHOLAS VAN HOOGSTRATEN RIZVAN ASGHAR SABEER RAJA -and- NICHOLAS VAN HOOGSTRATEN	Claimant Defendant No. HO 02 XO 2754 Claimant Defendant

____________________

Mr Andrew Mitchell QC & Mr Peter Irvin (instructed by Healys, 3 Waterhouse Square, 142, Holborn, London EC1N 2SW) for the Claimants
Mr Robert Leonard (instructed by Engleharts, 18 Blatchington Road, Hove, East Sussex BN3 3YN) for Mr van Hoogstraten
Hearing date: 16th November 2005
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Lightman:

As long ago as the 26^th January 2005 I directed as the first stage in the four actions before me the trial on the 14^th November 2005 (later postponed to the 21^st November 2005) of the "Preliminary Issue" whether the Defendant Mr van Hoogstraten was party to the killing of the late Mr Raja. Since that date Mr van Hoogstraten has had recourse to all available means to prevent the trial of that issue taking place as I have directed.

The relevant history is set out in my judgment handed down on the 11^th November 2005 ("the Judgment") when I rejected his most recent effort to do so. That effort was to apply for an adjournment of the hearing on a number of grounds one of which (which he referred to as his "Article 6" ground) was that he wished to instruct solicitors and counsel who needed six to eight weeks to prepare for the trial. I dismissed that application in the Judgment for the reasons there stated, but I added the qualification ("the Qualification") that I would consider an application for an adjournment until the 28^th November 2005 if his legal representative instructed on the trial of the Preliminary Issue applied for an extra week as needed for preparation for the trial. When I gave judgment I refused permission to appeal and abridged the time for appealing to 12 noon on Monday the 14^th November 2005 and told Mr van Hoogstraten that the Court of Appeal would hear any application for permission to appeal (together with a previously made application for permission to appeal) on the morning of the 15^th November 2005.

After I left court Mr van Hoogstraten told my clerk that the hearing before the Court of Appeal would not take place on the 15^th November 2005 and that he would be back next year. The clear implication was that he would be going abroad (presumably to Zimbabwe) and that he would not be attending the hearing before the Court of Appeal or the trial of the Preliminary Issue on the date fixed but would be back in January 2006 for the trial fixed during that month of issues relating to a (since discharged) sequestration order.

Mr van Hoogstraten (as intimated to me) went abroad. This action on his part was remarkable, for the timetable for trial of the Preliminary Issue required his attendance representing himself (if not otherwise represented) and as a witness at the trial over the six week period from the 14^th November 2005. On grounds including that he was abroad and the contents of a letter dated the 12^th November 2005 to him from the firm of Minaides Robson ("the Minaides Letter") Mr van Hoogstraten applied by letter to the Court of Appeal for the adjournment of the hearing of his application for permission to appeal. The Minaides Letter set out detailed grounds why the hearing date for the hearing of the Preliminary Issue should be adjourned, invoking Article 6 of the European Convention on Human Rights, emphasising the size of the task of preparing for trial, the likely costs and preparation required for representing Mr van Hoogstraten and declining to represent him. Brooke LJ on the 14^th November 2005 refused the application.

On the 15^th November 2005 Mr van Hoogstraten's application for permission to appeal came before a full Court of Appeal. Mr van Hoogstraten did not attend. The court first reconsidered the application to adjourn the application for permission (and with it the Minaides Letter) and unanimously rejected the application. The court secondly considered the application for permission to appeal and unanimously refused it.

Mr van Hoogstraten now again applies by counsel and solicitors for an adjournment, on this occasion until after a company connected with Mr van Hoogstraten (namely Tombstone Limited) hopes to be able to raise funds some time in or after mid January 2006. The counsel and solicitors are not instructed to appear for him at the trial: they are only instructed for the purposes of this application. This is accordingly not an application falling within the Qualification. In the circumstances I do not think that it is open to him to make this further application, when the question of an adjournment has so recently been determined by the Judgment and the Court of Appeal. For this reason alone this application should fail. But nonetheless I shall consider the application on its merits.

The basis of the present application is that Mr van Hoogstraten wishes to be represented on the Preliminary Issue, but that it is not possible for him to obtain any adequate and effective representation if the trial goes ahead on the 21^st November 2005 or indeed the 28^th November 2005. Mr van Hoogstraten's application is supported by statements by: (a) Mr David Englehart (Mr van Hoogstraten's personal solicitor who represents him on this application). Mr Englehart (besides saying that Mr van Hoogstraten has a volatile nature and mood swings) says that (in particular for reasons of lack of funds, timing and health reasons) he cannot act for Mr van Hoogstraten at the trial; (b) Mr David Martin, a director of Tombstone. Mr Martin says that Tombstone has submitted an application to HSBC for funding and that, if this application is successful, Tombstone intend to make a loan to Mr van Hoogstraten to assist with his legal expenses. He discloses no supporting documents relating to the application. Mr Englehart in his statement says that his understanding (the source or basis of which is undisclosed) is that a loan of £500,000 should be available by mid January 2006; and (c) the Minaides Letter and a further letter dated the 14^th November 2005 from Minaides Robson to the effect that it had declined instructions to act on behalf of Mr van Hoogstraten.

The thrust of this application is that Mr van Hoogstraten needs more time to raise the necessary funds to pay solicitors to act for him, that as things stand Mr van Hoogstraten will not be legally represented at the trial of the Preliminary Issue, that no solicitor is likely to take on the case without funds up front, that it takes time to raise the funds, and that the appropriate course in the interest of justice is for the hearing to be adjourned. These were the arguments addressed to me and the Court of Appeal on the previous application.

Mr Leonard on behalf of Mr van Hoogstraten accepts (as he must) that this application is a re-run of the previous application for an adjournment save only in two respects. The two respects are: (1) the evidence as to the outstanding application by Tombstone to HSBC; and (2) the Minaides Letter.

As regards the outstanding application by Tombstone (if it has any substance) this is a matter that could and should have been relied on at the previous application for an adjournment: it cannot in the circumstances be relied on as a new factor now. But in any event the ground relied on lacks substance: (1) the documentation relating to the application to HSBC is undisclosed; (2) the response of HSBC is undisclosed; (3) it is undisclosed whether HSBC know of the purpose of the loan to Tombstone; (4) the outcome of the application to HSBC is uncertain; (5) it is uncertain whether Tombstone can lawfully lend money to Mr van Hoogstraten (who may well be a shadow director) for the purpose proposed and, if it can, it is undisclosed what (if any other) avenues are available to Tombstone to make money available to him; (6) the earliest date when the funds will become available aborts the arrangements for the trial of the Preliminary Issue. Indeed this would appear to be its rationale. In any event, as I have held in the Judgement, Mr van Hoogstraten has the necessary resources available without recourse to Tombstone. In my judgment this focus upon Tombstone and its discussions with HSBC is merely a pretext for delaying the trial.

As regards the Minaides Letter, it was written after the Judgment and in that sense it is "new" to me. There is however no reason why Mr van Hoogstraten could not have clarified the position of Minaides Robson earlier and obtained the evidence before the earlier application to me. The Court of Appeal gave full consideration to the letter. The only thing the letter adds to my previous knowledge is that Mr van Hoogstraten's confidence expressed to me that Minaides Robson would act for him lacked any substance. I have no doubt (as I indicated in the Judgment) that, if Mr van Hoogstraten wished to, he could raise the necessary funds and obtain legal representation even now for the 28^th November 2005.

In my judgment this application is another attempt without any cause to sabotage an early trial of the Preliminary Issue. It reflects the mind frame of Mr van Hoogstraten to which I referred in my judgment given on the 29^th July 2005 that there would be no timetable without his consent and that he would abide with no timetable to which he did not agree. The relevant passage is quoted in paragraph 16 of the Judgment. Throughout this litigation he has disregarded orders (e.g. for payment of costs) and directions which did not suit him. I have set out in the Judgment the compelling reasons why the trial should proceed on the 21^st November 2005 or (at the latest) the 28^th November 2005. If and so far as Mr van Hoogstraten has any difficulties in relation to representation at the trial, they are deliberately self-induced in the hope that their existence may advantage him by delaying the trial and any damage is self-inflicted.

I accordingly dismiss this application. In my judgment it is hopeless and an abuse of process. Since (as Mr Leonard accepts) he is not instructed on the trial of the Preliminary Issue and there is no advantage to him in delaying the start of the trial until the 28^th November 2005, I shall not do so. But (in the absence of opposition) at the request of the claimants I shall direct that the trial commence on the 23^rd November 2005 (instead of the 21^st November 2005), which gives me more time to pre-read.