Raja v Van Hoogstraten & Ors

The court may strike out a party’s defence and counterclaim under its inherent jurisdiction where that party’s conduct has jeopardised a fair trial or prevented the court from doing justice. The jurisdiction also extends to conduct which is a flagrant abuse of process or a serious challenge to the administration of justice, even if a fair trial remains possible.

Strike-out is a draconian remedy and a last resort. The court must balance access to justice, the opposing party’s right to a fair trial and the public interest. The order is justified where it is proportionate, necessary and no less severe measure can secure a fair trial or protect the administration of justice.

The claimant, representing the estate of Mohammed Sabir Raja, applied to strike out Nicholas van Hoogstraten’s Defence and Counterclaim and his application to set aside an earlier order. The underlying proceedings concerned alleged secured loans, repayments, property charges and related relief.

At an earlier trial, the court had found on the balance of probabilities that Mr van Hoogstraten was responsible for Mr Raja’s murder. Permission to appeal that finding had been refused. The claimant argued that the murder removed the vital witness, made a fair trial impossible and constituted a grave abuse of the court’s process.

The central issues were whether the court had jurisdiction to debar Mr van Hoogstraten and whether doing so was compatible with common law principles and Article 6 of the European Convention on Human Rights.

1. Application granted. Mr van Hoogstraten’s Defence and Counterclaim, together with his application to set aside Master Bowman’s order, were liable to be struck out and he was to be debarred from pursuing them.
2. The court’s power arose principally under its inherent jurisdiction. Although CPR 3.4(2) did not plainly address the circumstances, the inherent jurisdiction was preserved by CPR 3.4(5). Its exercise in an appropriate case did not contravene Article 6 or common law principles: Ebert v Venvil [2000] Ch 484.
3. There are two related grounds for exercising the jurisdiction, identified in Arrow Nominees Inc v Blackledge [2000] BCLC 187 and Asiansky v Bayer-Rosin [2001] EWCA 1792. The first is conduct which jeopardises a fair trial or prevents the court from doing justice. The second is conduct which is such a flagrant abuse of process, and such a challenge to the administration of justice, that an order is required irrespective of whether a fair trial remains possible.
4. Article 6 access to court is subject to permissible limitations. A limitation must preserve the essence of the right, pursue a legitimate aim and maintain a reasonable relationship of proportionality between the means employed and the aim pursued, applying Ashingdane v UK (1985) 7 EHRR 528.
5. The murder of the opposing party to obtain a litigation advantage removed the claimant’s vital witness, made a satisfactory fair trial impossible and was an unparalleled perversion of the course of justice. Strike-out was proportionate and necessary because no counter-balancing measure or less draconian order could achieve justice. The principle that a party may lose the right to proceed by his own conduct was supported by R v Sellick [2005] 1 WLR 3257.
6. In principle, the claimant was entitled to declarations concerning the loans and their redemption, inquiries and accounts relating to unsold properties, and return of land certificates and blank transfers. Other pleaded relief was stood over.

First-instance decision. The judgment records that permission to appeal the earlier Preliminary Issue Judgment had been refused by the Court of Appeal on 9 May 2006, but this application was determined in the High Court.