Raja v Van Hoogstraten & Ors

Factual and Procedural Background

This action was originally brought by the late Plaintiff in the Chancery Division of the High Court against the first Defendant and three companies. After the Plaintiff's death, the Claimant continued the proceedings representing the Plaintiff's estate. The Claimant seeks an order to strike out the Defence and Counterclaim of the first Defendant, to debar him from defending the action and prosecuting his counterclaim, and for judgment to be entered for the Claimant.

The proceedings commenced on 8 October 1993 and have been protracted. The Plaintiff was murdered on 2 July 1999, with the first Defendant charged but ultimately acquitted of the murder. The court held a Preliminary Issue trial determining that the first Defendant was responsible for arranging the murder to halt the litigation and obtain a favourable settlement. The first Defendant did not attend or participate in this trial.

The Claimant argues that the murder has jeopardised a fair trial by removing the vital witness, the Plaintiff, and seeks relief to safeguard the interests of justice. The action concerns complex oral loan agreements and security interests between the Plaintiff and the first Defendant, involving multiple properties and alleged fraudulent transfers. The first Defendant denies the claims except for one admitted loan and has counterclaimed for repayment of that loan and related charges.

The case has involved numerous pleadings and amendments, with disputed factual issues centring on the existence and terms of the loan agreements, ownership and control of the companies involved, and the credibility of the parties. The first Defendant has also challenged an earlier order on grounds of alleged fraud by the Plaintiff, an issue the court held must be resolved at trial.

The Claimant submits that the murder has prevented a fair trial and substantially increased the complexity, cost, and difficulty of the proceedings. The first Defendant has not responded to the evidential material supporting this application and has engaged in obstructive conduct, including refusal to pay costs orders and attempts to intimidate witnesses.

Legal Issues Presented

1. Whether the first Defendant's Defence and Counterclaim should be struck out and he should be debarred from defending the action and prosecuting the counterclaim on the basis that his conduct, including arranging the Plaintiff's murder, has jeopardised a fair trial and obstructed the administration of justice.
2. Whether such a striking out order is a proportionate and justifiable limitation on the first Defendant's right of access to the court under Article 6(1) of the European Convention on Human Rights.
3. The appropriate form of relief following the striking out of the first Defendant's Defence and Counterclaim.

Arguments of the Parties

Claimant's Arguments

• The first Defendant arranged the murder of the Plaintiff to halt the prosecution of the action and obtain a settlement highly favourable to himself.
• The murder has prevented the Plaintiff from giving evidence, thereby jeopardising a fair trial.
• The first Defendant's conduct has obstructed the administration of justice and warrants striking out his Defence and Counterclaim as a last resort.
• The first Defendant has refused to comply with cost orders, intimidated witnesses, and created a state of fear in the Plaintiff’s family.
• The order sought is necessary to safeguard the interests of justice and is proportionate given the circumstances.

First Defendant's Arguments

• The first Defendant challenges the credibility and conduct of the Plaintiff, asserting that the Plaintiff’s allegations would not survive detailed examination.
• He denies participation in any loan agreements except for one admitted loan.
• The first Defendant has not put forward evidence in response to this application.
• He has made procedural applications for disclosure of documents but has refused to pay the costs of retrieval, leading to refusal of those applications.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ashingdane v. UK (1985) 7 EHRR 528	Limitations on right of access to court under Article 6(1) ECHR must not impair the essence of the right and must be proportionate and pursue a legitimate aim.	The court applied these principles to assess whether striking out the Defence and Counterclaim was a justified limitation on the first Defendant's right of access to the court.
Ebert v. Venvil [2000] Ch 484	Inherent jurisdiction of the court to strike out pleadings where appropriate, consistent with Article 6 rights.	The court relied on the inherent jurisdiction to strike out the Defence and Counterclaim, finding no breach of Article 6 where exercised properly.
Arrow Nominees Inc v. Blackledge [2000] BCLC 187	Grounds for exercising inherent jurisdiction to strike out: conduct jeopardising a fair trial or abuse of process.	The court identified two grounds for striking out: conduct preventing a fair trial and abuse of process, both applicable here.
Asiansky v. Bayer-Rosin [2001] EWCA 1792	Further authority on striking out for abuse of process and protection of administration of justice.	Supported the court’s conclusion that the first Defendant’s conduct warranted striking out to protect justice.
R v. Sellick [2005] 1 WLR 3257	Conduct denying a party the right to proceed with their case due to their own unlawful acts.	The court held that the first Defendant’s actions in arranging the murder denied himself the right to proceed with his Defence and Counterclaim.

Court's Reasoning and Analysis

The court acknowledged the serious and draconian nature of striking out the Defence and Counterclaim and barring the first Defendant from proceeding. It analysed the issue under Article 6(1) ECHR, recognising that the right of access to the court is not absolute and may be limited where justified and proportionate.

The court identified two principal grounds for exercising its inherent jurisdiction to strike out pleadings: first, where a party’s conduct has jeopardised a fair trial or prevented justice; and second, where the conduct constitutes a flagrant abuse of process and a challenge to the administration of justice.

Applying these principles, the court found that the first Defendant’s arrangement of the Plaintiff's murder removed the vital witness, making a fair trial impossible and obstructing justice. No less draconian measures could secure a fair trial or just result. The first Defendant’s conduct was a grave abuse of process that no court could tolerate.

The court also considered the balance between the first Defendant’s personal right to be heard and the Claimant’s right to a fair trial, concluding that the intrinsic justice of the case required the striking out order. The court noted the oppressive and obstructive conduct of the first Defendant throughout the litigation, including refusal to pay costs and intimidation of witnesses, reinforcing the necessity of the order.

Holding and Implications

The court’s final decision was to STRIKE OUT the first Defendant’s Defence and Counterclaim, bar him from defending the action and prosecuting his counterclaim, and dismiss his application to set aside an earlier order.

The implications are that the Claimant will proceed to judgment without defence or counterclaim from the first Defendant. The court indicated the form of relief to follow, including declarations regarding the loan agreements, repayment, securities, and an enquiry into the properties charged. No new legal precedent was set; the decision is a direct consequence of the first Defendant’s conduct obstructing justice and preventing a fair trial.