Raja v Van Hoogstraten & Ors

Permission to amend a defence may be refused where the amendment is made substantially out of time and would unfairly enlarge the trial, particularly where it risks vacating the trial date and substantially increasing preparation and costs.

Under section 11(2) of the Civil Evidence Act 1968, a party seeking to go behind a criminal conviction in civil proceedings must prove, on the balance of probabilities, that the convicted person did not commit the offence. It is insufficient merely to allege that the conviction was unsafe, that the criminal court made an error, or that the prosecution was an abuse of process.

The claimant represented the estate of the deceased in consolidated civil proceedings concerning whether Mr Van Hoogstraten was responsible for the murder of Mr Raja by Mr Knapp and Mr Croke. Mr Knapp and Mr Croke had been convicted of murder and their appeals had been dismissed.

Mr Van Hoogstraten sought permission to amend his defence shortly before the fixed trial. The proposed amendment denied that Mr Knapp and Mr Croke had committed the murder and alleged unsafe convictions, police misconduct, suppressed evidence and an unfair criminal trial. The central issues were whether the amendment should be permitted despite the delay and whether it disclosed an arguable basis for rebutting the statutory presumption arising from the convictions.

1. The application was dismissed. Permission to amend was refused both because of delay and on the merits.
2. The proposed amendment was made very late, without an adequate explanation, despite repeated directions and warnings concerning the timetable. Allowing it would impose an unfair burden on the claimants, materially expand the issues, potentially double the six-week trial estimate and risk vacating the trial date.
3. Section 11(2) of the Civil Evidence Act 1968 placed on a party seeking to go behind a conviction the burden of proving, on the balance of probabilities, that the convicted person did not commit the offence. The provision was not satisfied merely by showing, or alleging, that the conviction was unsafe, that the criminal judge or Court of Appeal made an error, or that the prosecution was an abuse of process.
4. The proposed allegations were inadequately particularised and supported. Several matters had already been considered at the criminal trial or on appeal, and the material relied upon did not establish an arguable case that Mr Knapp or Mr Croke had not committed the murder. The allegations concerning Mr Van Hoogstraten’s own conviction were irrelevant because that conviction had been quashed.
5. The pleading therefore disclosed no arguable case, and still less a case with any real prospect of success, that either convicted person had not murdered Mr Raja.