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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Raja v Hoogstraten & Ors [2002] EWHC 2729 (Ch) (12 December 2002) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2002/2729.html Cite as: [2002] EWHC 2729 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 December 2002

Mr Justice Peter Smith:

INTRODUCTION

1. This is the hearing of the application issued by the Claimants as long ago as the 8 August 2002 to strike out the First Defendants defence and counterclaim pursuant to CPR 3.4(2)(B) on the grounds (a) that his conduct is such that to allow him to continue to defend the action would amount to an abuse of the process and/or (b) to strike out the First Defendants Counterclaim pursuant to the Courts inherent jurisdiction because he is guilty of conduct which puts the fairness of any trial in jeopardy or which was such as to render further proceedings unsatisfactory and prevent the Court form doing justice. In addition there is an alternative application for Summary Judgment pursuant to CPR 24.2.
2. On 15 November 2002 I granted the Claimants permission to add an allegation that the First Defendant's conduct was further unsatisfactory because (a) he was alleged to be in contempt of Court due to his continued failure without lawful or reasonable excuse to comply with paragraphs 9(a) and 10 of the Freezing Order dated 27 August 2002 as varied by further Order of 10 September 2002 and 11 October 2002 and further (b) that he was in contempt at having admitted on 13 November 2002 that he had discharged legal costs without informing the Claimants where the money came from pursuant to paragraph 11(a) Freezing Order and (c) that he also was in contempt in failing to pay costs orders made against him on 11 October 2002 and 24 October 2002.
3. Finally, I also granted permission to add a claim that by reason of him being in breach of my Order of 4 July 2002 (paragraph 7, 8, 10,12 and 16) that was a further reason to strike out his Defence and Counterclaim.
4. The application initially came on before me on 13 November 2002. I will set out the procedural history further in this Judgment. Ultimately after an adjournment to 27 November 2002 the matter came on before me on 9 and 10 December 2002.
5. On the 9 December 2002 I also granted the Claimants permission further to amend the application notice by adding a further allegation that the First Defendant Defence and Counterclaim could be struck out on the grounds that he had failed to comply with the unless order contained in paragraph 3 of the Order dated 13 November 2002. I also refused an application by the First Defendant for an adjournment to file evidence in respect of that amendment and dispensed with further service of the re-amended application and directed that the evidence already filed should stand as evidence of that allegation. The reason behind that apparently strict decision process will appear abundantly in this Judgment.

BACKGROUND

6. The case has achieved a high level of notoriety but the issues before me are somewhat more circumspect. On 4 July 2002 I delivered a comprehensive Judgment addressing the Claimants then application to re-amend the Particulars of Claim and the First Defendant's application to set aside an Order made by Master Bowman dated 2 April 1999 giving leave to the late Mohammed Sabir Raja ("Mr Raja") to re-amend his Writ of Summons and re-amend the Statement of Claim on the ground that the leave had been obtained by fraud. As I said in that Judgment the First Defendant Mr Van Hoogstraten had to my mind adduced evidence which showed that there were serious issues to be investigated at the trial as to the basis upon Mr Raja swore affidavits in support of his application for leave to amend.
7. The litigation led to a trial at the Central Criminal Court this year of Mr Van Hoogstraten and two other Defendants all accused of murder. The other two Defendants were convicted of murder but Mr Van Hoogstraten was acquitted of murder. However, he was convicted of manslaughter of Mr Raja and sentenced to 10 year imprisonment by Mr Justice Newman on 25 October 2002. Mr Van Hoogstraten has lodged a notice of seeking permission to appeal against that conviction in the Court of Appeal. That has not yet been considered.
8. In the context of the present actions I determined that it was not right to go behind the fact of conviction. Thus it would not be right to reinvestigate all the evidence at the trial in an attempt to form a conclusion (possibly on a civil standard) as to the guilt or otherwise of Mr Van Hoogstraten in respect of all offences of which he was charged. Equally it was not appropriate to my mind to consider and attempt to prejudge his appeal prospects against such conviction.
9. At one of the hearings before me (on 13 November 2002) during the procedural history from 11 October 2002 representations were made informally by a Di Stefano an Italian lawyer retained by Mr Van Hoogstraten in respect of his appeal against conviction that I should adjourn or stay the civil proceedings until the outcome of his appeal was known. I refused that application and also refused permission to appeal against that decision. My main reason for that was that the parties had been content for the civil proceedings to proceed not withstanding the existence of the Criminal Proceedings and the trial (including Mr Van Hoogstraten) and no application had been made before to suggest that the Criminal case might be disadvantaged by the civil action. As the Criminal trial had now ended I could not see possibly how there would be any prejudice at this late stage. As the First Defendant had chosen not to make this application at an earlier stage i.e. before the Criminal case was heard it seemed to me to be no basis for considering an application now. I do not see how the grounds of appeal and the appeal can possibly be affected by the continuation of the Civil proceedings. It was suggested that if I acceded to the Claimants application that would in some way handicap the First Defendant in his appeal. The suggestion so far as I can discern was that if (for example) his assets were sequestrated he would be deprived of funds in order for his appeal to be conducted. He has as a result of Orders I have made already dispersed a significant sum of £100,000.00 (One Hundred Thousand Pounds) towards his costs of the appeal. If that is insufficient I can see no reason why he could not obtain Criminal Legal Aid and none was suggested. It was also suggested that it would be pointless making the present Order on the application of the Claimants if it were subsequently overturned as a result of a successful appeal. That might be correct. However, I am by no means convinced that merely because the conviction is overturned that any decision made in relation to the Defence and Counterclaim would necessarily be also overturned. There are other reasons as to why the Claimants content that Mr Van Hoogstraten ought not to be allowed to continue to defend and counterclaim in this action as set out in the Amended Application referred to above. The litigation already has a long procedural history.
10. In addition the Civil trial has a trial date fixed to commence on 20 January 2003 with an estimate of some 45 days. That trial date can no longer be sustained whatever the result of these applications. If the applications are successful there will be no trial; if the applications are unsuccessful the window cannot be met because of the orders, which I made on 4 July 2002 which have substantially not been complied with by Mr Van Hoogstraten. Accordingly I have vacated the trial date on 27 November 2002 but will review the necessity for re-fixing the trial date when the present applications were concluded.

REPRESENTATION

11. Mr Van Hoogstraten on the hearings before me culminating in the Judgment of 4 July 2002 was represented by Mr Reza instructed by Messrs Minaides Robson. He was still represented by them when the present application was served on 9 August 2002. By that time (as I shall set out below) he had been convicted and the conviction was the primary basis for the application at that time. Mr Van Hoogstraten told me on 13 November 2002 that he had not seen the evidence in support of the application, which is Mr Lightfoot's voluminous 12^th witness statement. I found that surprising and I remain entirely unconvinced that the documents were not brought to his attention by Minaides Robson. Nevertheless, one of the reasons for adjourning the case on 13 November 2002 was to enable him to consider the evidence and file evidence in reply. The time frame was shortened for three reasons. First, there had been considerable delay which so far as I can see was entirely due to an alleged lack of communication between Mr Van Hoogstraten and his then legal team. Second, the matter was further exacerbated by the fact that he chose to terminate their retainer on 3 September 2002 and conduct the Civil case in person. This was not due to a lack of funds but simply a decision by him (as is the right of any person) to dispense with the service of lawyers. Signally he did not do that in relation to his Criminal Appeal; he changed his legal team at virtually the same time. The third reason why the timetable was shortened was because of the trial date set for 20 January 2003 and the need to address these matter quickly. Nevertheless, the process has taken over 4 months. The substantial final hearing on the merits of the applications took 1 ½ days.
12. Following my Order on 13 November 2002, Mr Van Hoogstraten re-instructed Messrs. Minaides Robson and Mr Reza and I varied the Freezing Order to enable funds to be released to them to be instructed on this hearing.

PROCEEDURAL EVENTS

13. The next procedural event after the Judgment I delivered on 4 July 2002 and the issue of the application on the 8 August 2002 was an application by the Claimant for a Freezing Order, which was heard by Mr Justice Rimer on 27 August 2002. On that day he made a Freezing Order. I will refer to the Freezing Order terms further in this Judgment. The application was supported by a further substantial affidavit this time sworn by Mr Lightfoot and supplemented by three further affidavits.
14. Mr Van Hoogstraten at all times had been remanded in custody and following his conviction in July 2002 was remanded in custody as a convicted prisoner. Since his sentence he has remained in Her Majesty's Prison Belmarsh as a category A prisoner. It is fair to say that his ability to instruct lawyers has been restricted. Thus for example the prison refused to recognise Mr Di Sefano as a qualified lawyer for visiting purposes until Mr Van Hoogstraten obtained Judicial Review of that decision on 25 September 2002. Second, visiting access by lawyers are done by appointment only and there are a restricted number of time available. On occasions during the course of these applications it has been necessary for me and my clerk to intervene and direct that facilities be made available for Mr Van Hoogstraten to deal with this application. Third, it appears that correspondence sometimes takes some time to reach him. Fourth, on three Court occasions, namely 10 September, 11 October and 24 October Mr Van Hoogstraten did not attend.
15. On each occasion Mr Van Hoogstraten has contended that he was willing to attend but was prevented from attending. I am satisfied that Mr Van Hoogstraten was willing to attend on those three days. I am satisfied that he was prevented from attending but I am by no means satisfied as to the reasons for his not attending save in respect of 24 October 2002. That was a hearing which I had specifically set up having received letters from Mr Van Hoogstraten arising out of my Order of 11 October 2002. He did not attend then because he refused to submit to being handcuffed in the vehicle transporting him to Court. The vehicle in question was provided by Whitemoor Prison which had collected a prisoner from Belmarsh and was going to the Royal Courts of Justice. The senior officer in charge of the transport was apparently insistent that Mr Van Hoogstraten would have to be handcuffed inside the cellular vehicle. Mr Van Hoogstraten accordingly refused to be handcuffed. A Mr Bourke Head of Security at Belmarsh has expressed a view that handcuffing was unnecessary and was potentially dangerous and not a normal practice at Belmarsh. It seems to me therefore that Mr Van Hoogstraten had a reasonable explanation for not attending on 24 October 2002. As to the other two dates the position remains completely obscure. On 10 September 2002 it is alleged that an officer Gladman at Belmarsh was informed by the Listing Office at the Royal Courts of Justice that Mr Van Hoogstraten was not required. I have checked with the Listing Officer and he tells me no such conversation took place. The conversation might have taken place with somebody else and it is quite possible that the conversation was misunderstood. If a person was asked at the Royal Courts of Justice whether or not he was "required to attend" he could well answer that "he was not required to attend" and that could be misinterpreted. Mr Bourke initially suggested that the Claimants Solicitors Messrs Healys informed Belmarsh on 11 October 2002 that Mr Van Hoogstraten was not required in person. This was an allegation repeated by Mr Van Hoogstraten but of course he had no direct evidence to support it. Mr Lightfoot denied it. Further on the hearing before me the telephone records of Healys were produced, which showed that no telephone call was made to HM Prison Belmarsh on the 10 October 2002. Mr Bourke, for some reason as yet unexplained revised his letters (compare his letter of 4 December 2002 and his letter of 9 December 2002) and suggested a new name, that of Daniel Clayte as shown on a letter sent by Healys to the Governor dated 9 October 2002. It is suggested that Mr Clayte whoever he might be is from the Royal Courts of Justice. I caused enquiries to be made and there is apparently no such person in the Royal Court of Justice telephone directory. Once again this might well be a misunderstanding of a conversation. I am quite satisfied, as I have said that Mr Van Hoogstraten's non-attendance was not due to any wilful decision on his part. I am equally satisfied that Messrs. Healys did not have any part in his non-attendance either. Accordingly, his non-attendance on those three days in question are not relevant factors which I have considered for the purposes of the decisions I make in these applications.
16. I should add that I do not believe any other decision would have been made on the three dates in question. I will deal with that further in the consideration of the procedural history.

TERMS OF FREEZING ORDRER

17. Mr Justice Rimer under paragraph 5 prohibited Mr Van Hoogstraten from removing from England and Wales any of his assets up to the value of £5,000,000.00 (Five Million Pounds) and prevented him from in any way disposing or deal with or diminishing the value of any of his assets whether they were inside or outside England and Wales up to the same value.
18. There is an important provision in paragraph 6:-

"6 paragraph 5 applies to all the Respondents assets whether or not they are in his own name and whether they are soley or jointly owned. For the purposes of this Order the Respondents assets include any asset which he had power, directly or indirectly, to dispose of or deal with as if it were his own. The Respondent to be regarded as having such power if a third party holds or controls the assets in accordance with his direct or indirect instructions"

19. Paragraph 7 provides that the prohibition applies to a list of properties set out in schedule E or the net proceeds of sale of any of those properties after payment of any mortgages and the property and assets of the Respondent's businesses include the assets set fourth in schedule F to the Order.
20. There is thus an extensive meaning of the meaning Respondents assets. It is not an unusual provision except in relation to the identified properties and businesses. The reason for those is the Claimants contention that the various properties and companies in reality belong beneficially to Mr Van Hoogstraten and his counterpart denial of that effect. Thus he was required to provide full details of all of the assets in respect of the disputed properties and businesses. It is clear that his affidavits ultimately sworn in compliance do not address that. At the hearing before me on the 10 December 2002 Mr Van Hoogstraten expressed surprise at that and said that nobody had told him that is what the Order meant. I find that difficult to believe. He has had advise from a significant number of lawyers as to the wording and effect of the Freezing Order. First Mr Englehart has been communicating with the Claimants Solicitors about its wording. Second, Mr Di Stefano (as I set out below) gave him specific advice apparently (and wrong advice) as to the effect of the Order. Finally, he has had the advice of Messrs Minaides Robson and Mr Reza although in fairness to them they have come into the picture very much later in the day and after he swore his compliance affidavits.
21. The compliance affidavits arise out of paragraph 9 and 10 of the Freezing Order. Paragraph 9 obligated him within one week of service of the Order to the best of his ability to inform the Applicant's solicitors of all of his assets world wide exceeding £10,000.00 (Ten Thousand Pounds) in value. "whether in his own name or not and whether solely or jointly owned giving the value, location and details of all such assets". Under subparagraph (b) he was entitled to refuse to provide the answers if it might incriminate him.
22. This was partly used by Mr Van Hoogstraten as a basis for initially refusing to comply.
23. Paragraph 10 obligated him to swear an affidavit verifying the answers within 14 days of being served with the Order.
24. Thus Mr Van Hoogstraten was by virtue of the extended definition given to the meaning of the words Respondents assets obliged to provide details of all of the assets of the various entities and businesses extending to those which he disputed he was the beneficial owner of. Take one example, Tombstone Ltd. This company has apparently five million ordinary shares of £1.00 (One Pound) each. Mr Van Hoogstraten (in the guise of one of his many aliases Von Hessen) is the sole director. He has been such since 1993. The return to 12 June 2002 (to be found in exhibit 77 to the first affidavit of Mr Lightfoot) shows that Mr Van Hoogstraten has one thousand shares. Messina Investments Ltd. has one million and one million four hundred and ninety-nine thousand are barer shares. Finally 2.5 million shares are shown to be held by Willoughbys Consolidated Plc.
25. Tombstones last accounts are those to 5 April 2001 signed off on 22 March 2002. The profit and loss account shows a profit before interest of £278,612.00 (Two Hundred and Seventy-eight Thousand, Six Hundred and Twelve Pounds). Its balance sheet shows a deficiency on current assets £1,391,783.00 (One Million, Three Hundred and Ninety-one Thousand, Seven Hundred and Eighty-three Pounds) but total assets over liability of £18,512, 912.00 (Eighteen Million, Five Hundred and Twelve Thousand Nine Hundred and Twelve Pounds). It records cash at the bank of £782.00 (Seven Hundred and Eighty-two Pounds).
26. Mr Van Hoogstraten self evidently as the sole director controls Tombstone Ltd. It seems to me the assets of Tombstone Ltd. ought to have been dealt with in any compliance affidavit. He has failed to provide any assets of Tombstone Ltd. Significantly, Tombstone Ltd. apparently lent him £600,000.00 (Six Hundred Thousand Pounds) in April 2002 to enable him to defend himself on the criminal charges and to prosecute the appeal against the conviction. That is a flagrant breach of Section 330 of the Companies Act 1985. Further no loan documentation has been produced to substantiate the loan. In his sixth affidavit Mr Van Hoogstraten suggests in some unclear way that in fact the Tombstone owed him money after the proceeds of sale of the property yet such a liability to him as a director is not shown in the accounts (unless it is hidden away as creditors). Note 11 to the accounts shows directors current accounts at £6,462.00 (Six Thousand, Four Hundred and Sixty-two Pounds). He may conceivably be "other creditor" but that seems to me to be pure speculation. Further, as I have said the balance sheet of Tombstone would not have supported a cash advance made a month after the accounts were signed off. No explanation has been provided by Mr Van Hoogstraten for any of this. It is not as if the matter was sprung on him late as Tombstone Ltd. was expressly referred to in some detail by Mr Lightfoot in his first affidavit. The conclusion I draw on the evidence before me is that Mr Van Hoogstraten controls Tombstone to such an extent that despite his apparent modest share holding no other shareholder complained about the apparent removal of a sum in excess of £600,000.00 (Six Hundred Thousand Pounds). The conclusion I draw from that absent any other explanation is that no one else complains because no one else interested and that is because he ultimately is the beneficial owner of Tombstone Ltd. Now of course Mr Van Hoogstraten disputes that but that is not a basis for refusing or not providing the information required by the Freezing Order. It is particularly pertinent because of the way in which over £100,000.00 (One Hundred Thousand Pounds) of the apparent loan was dispersed to the criminal team in breach of Freezing Order. I will revert to this further in my Judgment but it is a most unsatisfactory state of affairs and at the conclusion of this Judgment I am going to direct that Mr Di Stefano and Mr Englehart show cause why I should not find them guilty of being in contempt of Court in aiding and abetting a breach of the Freezing Order.
27. Under paragraph 11 of the Freezing Order Mr Van Hoogstraten was permitted to spend a reasonable sum on legal advice but before spending any money he was obliged to tell the Applicant's legal representatives where the money was to come from.

SERVICE OF THE FREEZING ORDER

28. Under schedule B(3) the Claimants gave an undertaking to serve the Order on Mr Van Hoogstraten by leaving the same with the Governor of HM Prison Belmarsh for onward delivery, together with the affidavits and an application notice for continuation of the Order.
29. The return date for the purposes of the Order was 10 September 2002. On 29 August 2002 Messrs Healys served the Order in accordance with the undertaking on the Governor. Receipt is acknowledged at 12.10 hours on 29 August 2002. On 30 August 2002 they copied all of the relevant documents to Messrs Minaides Robson who on the 2 September informed Messrs Healys that they were no longer instructed saying in their final paragraph "as we are no longer instructed in this case please do not communicate with us any further". It is clear that Mr Minaides provided informal advice to Mr Van Hoogstraten despite that retainer as he assisted in the preparation of the Re-Amended Defence and Counterclaim served pursuant to the unless Order that I made on 31 October 2002.
30. Mr Van Hoogstraten was sent a letter by Healys on 6 September 2002 raising the question of lack of representation and referring to the return date of 10 September 2002. Further, on 9 September 2002 they acknowledged receipt of his notice of acting which he sent on 3 September 2002 (the only communication he ever gave to Healys). That letter referred to contacts they had had with Mr Di Stefano and indicated the Draft Order that they were seeking on 10 September 2002. They pointed out (correctly) that he was in breach of paragraph 9(a) of the Freezing Order. That Order had however been served without a Penal Notice being attached.
31. Mr Van Hoogstraten wrote to the Court on 10 September 2002 and that letter was apparently received on the 17 September 2002. In that letter he indicated his unhappiness about the Freezing Order and said that he wished to oppose its continuation because it had been obtained by deception on the part of Mr Lightfoot. He complained about a small number of exhibit pages missing. It is clear that Mr Van Hoogstraten by 10 September had received the documentation and had read it extensively.
32. By 6 September 2002 Mr Di Stefano from his Rome office was writing to Healys showing that he had seen a copy of the Freezing Order but not the affidavits in support. Correspondence ensued between him and Mr Lightfoot of Healys about the terms of the continuation of the Freezing Order and on 6 September 2002 for example Mr Lightfoot made a proposal for dealing with the Return Date. On the same day he wrote to Mr Englehart referring to his earlier letter enclosing the Freezing Order and Mr Englehart responded to that by letter of 12 September 2002.
33. On 10 September 2002 Mr Justice Patten continued the Freezing Order until the first available date after 24 September 2002. He varied the properties in schedule E and extended the time compliance with paragraphs 9 and 10 by Ordering Mr Van Hoogstraten to disclose his means by 17 September 2002 and to swear the compliance affidavit by 24 September 2002.
34. No express provision was made as regards service. Nevertheless the Order of Mr Justice Patten is merely a slight variation (and an extension in favour of Mr Van Hoogstraten) of the Freezing Order. It seems to me self evident that the undertaking given in schedule B to the Freezing Order as regards service applied to service of that Order.
35. On 11 September 2002 a copy of the Order was sent to Mr Van Hoogstraten and it was copied to the Governor by letter of the same date. There is no express evidence (in contrast to the serving of the Freezing Order and the subsequent application for committal) of a counter signature from an officer in Belmarsh that he had handed the relevant documents to Mr Van Hoogstraten. That does not to my mind have any significance. The Order of Mr Justice Patten of 10 September 2002 was served to my mind in accordance with the undertakings given in the Freezing Order. In this context it seems to me Mr Justice Rimer was applying CPR 6.8 and providing an alternative of service. That seems to me to be obvious as there would be no method of serving Mr Van Hoogstraten personally. I reject Mr Reza's submission that sending the documents to the Governor and asking him to give them to Mr Van Hoogstraten is personal service for the purpose of CPR 6.4. That provision prescribes that personal service in the case of an individual is achieved by "leaving it with that individual" I do not see how sending it to the Governor can be said to be leaving it with an individual. If I am wrong then it seems to me the letter of 13 September 2002 is the same method as set out in the other two occasions and is personal service. Otherwise it would be impossible to enforce the Orders because it is not possible in any other way personally to serve somebody incarcerated in prison.
36. Mr Reza also suggested that there was no evidence to show that the Order of Mr Justice Patten was served on Mr Van Hoogstraten before the expiry of the days mentioned. He suggests that Mr Van Hoogstraten (for example) when he referred in his letter to me dated 24 October 2002 of having received letter dated 3 October 2002 showed that he did not receive the Order of 10 September 2002 as otherwise he would have referred to it. I reject that. Mr Van Hoogstraten nowhere says when he received the Order. None of this to my mind actually matters because of the provisions of CPR 6.7 which prescribe that where a document is served by first class post it is deemed to arrive the second day after it was posted. It is quite clear that those deeming provisions cannot be countermanded by evidence showing contrary service see In Godwin –v- Swindon Borough Council 2001 WL 1135130 referred to in the White Book at page 136. It follows that the letter enclosing the Order is deemed to have been received before the time has expired.
37. The significance of this relates of course to the enforcement of the Order. Under RSC Order 45 Rule 5 the sanctions for non-compliance with an Order are set out. Where an Order requires someone to do something and an Order is subsequently made under Rule 6 the relevant time is that set out in Rule 6. Mr Reza submitted that that meant Mr Justice Patten's Order also had to be served in the case of a positive Order before the time expired – see RSC Order 45 Rule 7(2)(a) and (b) - which require personal service of an Order and in the case of an Order requiring him to do something before the time has run out. I have already observed the position as regards personal service. Under RSC 45 Rule 7(7) a Court may dispense with service of an Order under the rule if it thinks it just to do so. Personal service is plainly impossible so I do not see how service could have been effected otherwise than within accordance with the undertaking given at the time of the Freezing Order. Alternatively, to my mind if Mr Reza's submissions are correct for the reasons that I have set out above then sending it by post to the Governor for him to hand it to Mr Van Hoogstraten was personal service and for the purposes of CPR 6.7 service was deemed to have been effected two days after that letter was posted. It might have been better if Healys had of obtained a counter signature by way of receipt but to my mind that is irrelevant for the reason that I have set out above.
38. Accordingly, I am satisfied that the Order of 10 September 2002 was served with a Penal Notice before the time for compliance had expired. Mr Reza in the course of his submissions and his careful skeleton argument suggests that Healys were under a duty to procure the attendance of Mr Van Hoogstraten at Court. I do not see how that can possibly be the case. They do not represent him. Mr Reza bases this under CPR 25 PD 5.1(3), which requires a return date for a further hearing at which the other party can be present. I do not see how that extends an obligation on the part of Healys either to request his attendance or ensure he can be produced. All they have to do to my mind is serve the Order (which they did). Further Mr Reza has omitted to refer to the preamble to 25 PD 5.1, which provides "unless the Court Orders otherwise". The Court can vary the mandatory provisions and it also has of course its overriding powers under CPR 3.1.
39. Mr Van Hoogstraten wrote to Mr Justice Patten as I have said and his Clerk replied on 20 September 2002. Mr Van Hoogstarten himself sent an application to the Court seeking to discharge the Freezing Order. Regrettably, the Court has mislaid that application although it is accepted that is was received as the cheque has been processed. Healys have received a copy of it. However, it has not been proceeded with because I have already determined Mr Van Hoogstraten is in contempt of Court in that he failed to comply with paragraphs 9 and 10 of the Freezing Order as extended by Mr Justice Patten and I indicated to him in my letter of 24 October 2002 that I was not prepared to entertain any applications to discharge the Orders until he complied with them. That remains the position. I made it clear in the same letter however, that if he wished me to reconsider that decision he was in a position to apply to do so.
40. Accordingly, I am quite satisfied that the Freezing Order and Mr Justice Patten's Order of 10 September 2002 have been properly served on Mr Van Hoogstraten. Further I have already observed that both Mr Di Stefano and Mr Englehart have not only received the Orders but have corresponded with Healys about them. Although Mr Englehart purports to write on behalf of Tombstone Ltd. only, that is not a difference of substance because I am satisfied for the reason that I have set out above that Tombstone Ltd. belongs beneficially to Mr Van Hoogstraten this is reinforced by Mr Lightfoot's first affidavit as regards Tombstone Ltd.

APPLICATOIN FOR ENFORCEMENT OF THE FREEZING ORDER

41. On 3 October 2002 Healys sent to Mr Van Hoogstraten and the Governor an application notice issued on 2 October 2002 returnable on 11 October 2002, the fourth affidavit of Mr Lightfoot and exhibits and a further application notice dated 22 August 2002. Finally for the abundance of caution they sent a second copy of the Order of 10 September 2002. In the letter they also say "naturally we concede that you have also yet to have the opportunity to challenge the Freezing Order itself and you will note that we have listed the return date at the same time as the application for committal". Mr Justice Patten had directed the return date to be a date being the first available date after 24 September 2002. It seems to me there is no reason why the 11 October cannot be treated as the first available date. Once again I reject Mr Reza's submissions that Healy's did not request his attendance or ensure that he could be produced as a matter of obligation on their part. They have done all that is necessary in serving the documentation. Mr Van Hoogstraten was of course able to come and for the reason that I have set out above his non-attendance was not due to Healys but for some circumstances, which are inexplicable. It seems to me therefore that this is a valid date for a return date.
42. Even if that is wrong there is no reason why the Court under its powers in CPR 3.1could not have addressed the issue of how to deal with Freezing Order. This is precisely what happened. The Freezing Order was continued by me until trial or further Order to obviate any further unnecessary applications to Court arising out of a fixed return date. That does not cause Mr Van Hoogstraten any difficulty because he can always apply to vary or discharge the Order on making the appropriate application. I was not aware of course of the application that he sent to the Court because its existence was not on the Court file as it was still being processed. As regards the Freezing Order whether or not Mr Van Hoogstraten was there would have made no difference whatever he might have said. The Freezing Order would have continued if only to fix a date for hearing his application to discharge which would take a considerable time as he had indicated in his letter of 10 September 2002 that he wished to cross-examine Mr Lightfoot on his extensive affidavit. I doubt whether the Court would have acceded to that but nevertheless, responding to that affidavit would take some considerable time. In the meantime of course, it is equally the case that I cannot conceive of any Court would have suspended the operation of the compliance obligations in paragraphs 9 and 10. So Mr Van Hoogstraten's absence did not affect the decision as regards the Freezing Order.
43. I reject therefore Mr Reza's submission that the continuation Order I made was without jurisdiction. I cannot see how it can be seriously suggested that a Court cannot from time to time review the operation of a Freezing Order under CPR 3.1. I reject his submission that because Mr Van Hoogstraten was not present the Freezing Order expired on 11 October 2002. That would be a nonsense.

WORDING OF APPLICATION FOR ENFORCEMENT

44. Mr Reza in his submissions identified a number of basis for suggesting that the committal application was fatally flawed. First, he points out that the application notice erroneously refers to Order 51 instead of Order 52. I cannot see that that has any significance at all. Second, the boxes ticked on the basis of the Human Rights Issues are stated not to apply. This he says is contrary to SPD 52.1 paragraph 1.4. I do not accept the failure to tick the box is a matter of breach of the Order. The practice direction is directory as to the requirement the Court should have regard to the convention rights. It is not part of the Claimants duty to address Human Rights Issues in their case. If Mr Van Hoogstraten wants to raise them it is a matter for him. In his absence the Court will have to consider them. The criticism is not justified.
45. Mr Reza complains that the Order was issued with a return date of 11 October 2002 and was served on 5 October 2002 when the documents were handed to him. Messrs Healys letter wrongly tell the Governor that documents have to be served before 8 October 2002. I suspect this is an erroneous assumption on the part of Mr Lightfoot that the application needed only to be served with two clear days notice. It is clear that under PD 52.4.4 the hearing date should be not less than 14 days after service of the claim form. That did not take place. Mr Reza dealing with the preamble "unless the Court otherwise orders" submits that the applicants must obtain an abridgement of time before the application is issued. I do not accept that. It seem to me that that provision enables the Court to direct a hearing date to be at a shorter period if it operates under that provision. I do not see why that cannot be made retrospectively. Whether or not the Court would do that and thus abridge time under CPR 3.1(2) (a) or (b) is a matter for the Court to consider on each occasion. In the case of an application for enforcement of committal a Court will consider quite seriously whether a Defendant will suffer a disadvantage by a shortening of time. The Court must consider whether or not that is the appropriate case. Although the Claimants in Mr Irvin's skeleton argument sought permission to serve short that is not the correct way to approach it and I did not so consider it. I made an Order abridging time. It is true that that is not reflected in the Order but Healys note accurately shows I intended to make such an Order and did so.
46. Mr Reza also submitted that all that could be done was to fix a date for a hearing of the committal application in the future. I do not agree. PD52.4 .4 provides for the application to be proceeded with immediately if it is ready to be heard. That does not mean to my mind that the Respondent has to be there. In this context one has to bear in mind a number of factors. First, Mr Van Hoogstraten was already in prison having been found guilty. It was never suggested that prison was a sensible or appropriate sanction and I did not consider that to be the case. Second, the breach was relatively straightforward. He was ordered to provide details of assets verified with an affidavit and he had not complied. He had not communicated with the Claimants solicitors in the intervening period (and his later evidence shows that this was deliberately done by him). He was therefore plainly in breach of the Order and had had a considerable time to comply. Accordingly it was appropriate in my opinion (and I remain of that opinion) to abridge time to enable the application to be disposed of that day, hear the evidence and in finding him in breach of the Order apply the appropriate sanctions. That is precisely what happened. There is to my mind no procedural irregularity correctly identified by Mr Reza.
47. In case I am wrong it seems to me that none of those irregularities is such as to invalidate the procedure in this case. Mr Van Hoogstraten (and for that matter Mr Di Stefano and Mr Englehart as well) were well aware of what the Order said and the time of it. He had made a decision not to comply with it. That is what his later evidence to which I shall make reference below clearly shows. Had he come on the 11 October he would not have said anything other than he was not going to comply because he had applied to set aside the Freezing Order. It seems to me that whilst applications for committal clearly require careful consideration because of their seriousness any defects to not invalidate the process. Further, the fact that he had sent the application for setting aside does not obviate the need to comply see Motorola –v- Uzan [2002] EWCA CIV 989. It seems to me that whilst matters have to be proceeded with carefully to ensure that no injustice is done to a Respondent to an application there was not injustice in this case. In this instance I refer to the Court of Appeal decision in Nichols –v- Nichols [1997] 1 WLR 314 at page 326 in particular where the Court said this:-

"In determining [procedural defects] the Court must not only take into account the interests of the contemnor but also the interests of the other parties and the interests of upholding the reputation of civil justice in general. Today it is no long appropriate to regard an order for committal as being no more that a form of execution of available to another party against an alleged contemnor. The Court itself has a very substantial interest in seeing that its Orders are upheld. If committal orders are set aside on purely technical grounds which have nothing to do with the justice of the case, then this has the effect of undermining the system of justice and the credibility of the Court Orders. While the procedural requirements in relation to applications to commit and committal orders are there to be obeyed and to protect the contemnor, if there is non-compliance with the requirements, which does not prejudice the contemnor, to set aside the order purely on grounds of technicality is contrary to the interests of justice. As long as the order made by the Judge was a valid order the approach the court will be to uphold the order in the absence of any prejudice to injustice to the contemnor as a consequence of doing so "

48. I can see no injustice as I have said. The breach was clear and Mr Van Hoogstraten has not in his subsequent evidence suggested otherwise. The only issue in relation to events after my Order of 11 October 2002 was whether or not he had subsequently complied.
49. Accordingly there was no procedural irregularity and if there was it did not cause him an injustice and he was in breach. I will address the question of the penalties that I imposed in the light of the other submissions made by Mr Reza further in this Judgment.

EVENTS SUBSEQUENT TO ORDER 11 OCTOBER 2002

50. On 11 October 2002 I determined that Mr Van Hoogstraten was in contempt in his failure to comply with paragraphs 9 and 10 of the Freezing Order as varied by the Order of 10 September 2002. I imposed a fine of £200,000.00 (Two Hundred Thousand Pounds) on him suspended for 28 days until 4 pm on Friday 8 November 2002 and required him to pay a further fine the following week of £220,000.00 (Two Hundred and Twenty Thousand Pounds) with further weekly fines increasing by ten percent until the contempt was purged. I also ordered him to pay the costs of the application assessed at £5,050.00 (Five Thousand and Fifty Pounds). In respect of the Freezing Order I varied the Order by providing that it continued until trial or further Order and varied schedule E. In addition I ordered the First Defendant to pay the costs of the application to continue and vary the Freezing Order assessed at £2,222.50 (Two Thousand, Two Hundred and Twenty-two Pounds and Fifty Pence).
51. Mr Van Hoogstraten wrote to me on the 17 October 2002 observing that "if [I] had seen fit to read the Court file in this case and apply a modicum of common sense [I] would have discovered that [he] had applied on 10 September 2002 to oppose the interim order dated 27 August 2002". He asserted that on the hearing of 11 October 2002 he did not attend because Healys had told Belmarsh security that he was not required. I have already dealt with that earlier in this Judgment.
52. I replied to him on 22 October 2002, the day I received the letter. I drew to his attention the fact that the Order concerned failure to comply with Orders. I reminded him that whether or not he had applied to discharge the Orders they had to be complied with and I made arrangements for him to be brought to Court on the 24 October 2002. He did not come for reasons, which I have set out above. On that date I ordered him to pay the costs to be assessed on an indemnity basis of £2,384.75 (Two Thousand, Three Hundred and Eighty-four Pounds, Seventy-five Pence). I also informed him by letter of what I would have said if he had attended. The position I would have explained was that he was in breach of the Costs Order, was in breach of the Freezing Order which lead to the imposition of the fines and he had not explained why he had not complied with the Freezing Order despite the fact the first Order was made nearly two months earlier. I also indicated that I was not prepared to entertain any application to discharge those Orders until paragraphs 9 and 10 were effectively complied with. I informed him that if he did not accept that he was at liberty to make representations to me as to why I should entertain an application without him complying. He replied to me on the 26 October 2002. In the second paragraph he said he wished to raise the matter of Healys dishonesty and complained about a request for a Penal Notice being indorsed on the Order of 10 September 2002. I cannot actually see no basis for challenging the attachment of a Penal Notice to the Order. In his third paragraph he said as follow:-

"I was instructed by my legal team in the criminal case that I should not comply with the provision for information as it may incriminate or prejudice my position".

He gave reasons why he did not attend on 24 October 2002 but failed to say that he had refused to go in the van because he was going to be handcuffed.

53. He wrote to me further on 28 October 2002 in response to my letter of 24 October 2002 enclosing a witness statement dated 28 October 2002 which had no relevance to the applications before me.
54. The Claimants solicitors had issued an application returnable on 31 October 2002 arising out of the breaches of my Order of 4 July 2002. In advance of the hearing Mr Englehart sent a fax addressed to Mr Justice Ferris enclosing a general power of attorney that had been given to him, copy of notes taken by Alison Dorrel Junior Counsel for Mr Van Hoogstraten in the Criminal Appeal who attended on the hearing of the 11 October 2002 but took no part beyond telling me that they were preparing his appeal and an opinion form Mr Di Stefano. I was concerned about the latter document because it involves a waiver of privilege and I did not know whether Mr Van Hoogstraten agreed to the waiver of privilege accordingly I did not read that until the 31 October 2002 after Mr Van Hoogstraten had seen it consented to me reading it as it contained advice given to him.
55. Mr Di Stefano's written advice dated 29 October 2002 in relation to paragraphs 17 to 21 is important:-

"17 It follows thus that Mr Van Hoogstraten take comfort in the protection of the exceptions found in the [Freezing Order] not to disclose anything whatever in this case to the Applicants because it may seriously prejudice his criminal trial. In fact the proper application would be to adjourn sine die any applications to the Court and stay these proceedings until such time as the appeal against conviction is heard and/or any retrial.

18 I thus so advise.

19 I must state however quite clearly that Mr Van Hoogstraten must communicate to the Court the reasons why he is not complying failing which the Court in any jurisdiction may necessarily infer a serious contempt and feel that the Defendant is deliberately ignoring any request.

20 For the purpose of purging contempt Mr Van Hoogstraten must as a matter of absolute urgency communicate this advice to be read in conjunction with the views of Junior Counsel herein attached and file with the Court an application to purge contempt accordingly

21 The civil proceedings should be stayed – no prejudice suffered since the restraint order is currently enforce – and to date the applicants have produced no admissible evidence that the said restraint order has been violated. "

56. Appended was a note from Miss Dorrel wherein she appends her note of some of the matters that took place at the hearing before me on 11 October 2002, but she also advises that an urgent application should be made by him to purge his contempt. Either in person or preferably with the assistance of Counsel.
57. Mr Van Hoogstraten attended on 13 October 2002. He declined to say whether he intended to comply with the Freezing Order. On the Claimants application in respect of my Order of 4 July 2002 I made an unless Order for service of the Re-Amended Defence and Counterclaim. I also Ordered Mr Van Hoogstraten to file any evidence by 4pm Friday 8 November 2002 that he wished to file in opposition to the present application which I adjourned to take place between the 11 to 13 November 2002.
58. On the 13 November 2002 I considered the present application further. Mr Van Hoogstraten attended again. Also in attendance were Mr Di Stefano, Mr Englehart, Mr Peter Kelsen QC (for sometime) and Miss Dorrel. They all addressed me to varying degrees.
59. Mr Di Stefano addressed me to make an application effectively on behalf of Mr Van Hoogstraten (although he was not on the record for him) for the present civil proceedings to be stayed until the outcome of his appeal against conviction. This is in accordance with the written advice that he had tendered. I refused that application and I also refused permission to appeal for the reasons, which I have already given earlier in this Judgment. During the course of the hearing Mr Van Hoogstraten repeated what he had said about his non-compliance namely that his lawyers i.e. Mr Di Stefano and Mr Englehart had advised him in relation to the legal expenses and the compliance. He said that Mr Di Stefano had advised him that he need not comply with the disclosure Orders because that might prejudice his appeal. Mr Di Stefano initially denied that he had said that but when he took me to the Order he attempted to suggest that the Order enabled Mr Van Hoogstraten to refuse to comply with paragraph 9 if it might prejudice his appeal. Of course the Order says nothing of the sort and I pointed this out to Mr Di Stefano and the fact that his written advise as reflected by Mr Van Hoogstraten in his letter of 26 October 2002 was plainly wrong. In any event I could see no reason why any disclosure of Mr Van Hoogstraten's assets could have any impact whatsoever on an appeal against conviction for manslaughter. Mr Di Stefano was unable to elucidate further either.
60. It transpired in questions I asked that the criminal legal team had received £100,000.00 (One Hundred Thousand Pounds) on account of their fees since the Freezing Order. This was despite the fact that no notification of those payments had been give to Healys. This was despite the fact that both Mr Di Stefano and Mr Englehart were aware of the terms of the Order as they had been in correspondence with Healys since its making.
61. Mr Van Hoogstraten told me that Mr Englehart had advised him that the Freezing Order did not apply to monies, which Mr Englehart was dispersing under the power of attorney or to pay lawyers. He repeated that to me on the 9 December 2002.
62. As a result of these revelations I removed the permission to pay any legal expenses unless a specific application was made in writing identifying the amount to be paid and the source of the payments. I also made a further Order in respect of the compliance affidavit. By the 13 November 2002 Mr Van Hoogstraten had neither provided the information nor the affidavit. On 13 November 2002 it appeared that the reason for non-compliance was that he had received advice apparently that he need not comply if it might prejudice his appeal. I have already observed that I have great difficulty with that as a matter of concept but it seemed to me to be right in the light of the revelations made in Court on the 13 November 2002 to give Mr Van Hoogstraten a final time to comply with paragraphs 9 and 10. Accordingly I extended time to comply until 4 pm 20 November 2002 and in default I provided that the Defence and Counterclaim be struck out and that he be de-bared from defending and the Claimant would be entitled to seek Judgment in Default considered appropriate by the Court. I also specifically removed the ability to refuse to answer on the grounds that it might incriminate him. The reason for this was that the array of legal advisers and Mr Van Hoogstraten had been unable to identify any basis upon which the revelation of the assets might incriminate him. I was concerned to ensure that by giving him time an affidavit was not subsequently served saying nothing because it could be alleged subsequently it might incriminate him.
63. I also ordered that the outstanding Costs Orders from 11 and 24 October be paid by 20 November 2002 and in default the Defence and Counterclaim be struck out. I gave further directions as to the filing of evidence in relation to the legal representatives payments and Ordered any legal representative who had been involved in his criminal proceedings to file a witness statement within 7 days of being served with the Order setting out all sums they had received and the sources of the payments. I made a separate Order in relation to all monies Mr Englehart alleged he had received and Ordered him to identify what had become of the sums.
64. Finally I extended time to comply with the Freezing Order until the 27 November 2002.
65. On 20 November 2002 I granted Mr Van Hoogstraten a short extension of time to file the affidavits and enabled him to make payment to Minaides Robson to represent him on the present applications.
66. On 27 November 2002 I adjourned the application for further consideration due to lack of time and it came on to be heard on 9 and 10 December 2002.

THE COMPLIANCE AFFIDAVITS

67. In the purported compliance Mr Van Hoogstraten swore filed and served two affidavits dated 15 and 19 November 2002 respectively. In the first of those he identified assets totalling £960,000.00 (Nine Hundred and Sixty Thousand Pounds). Apart from a pension fund (unidentified) of £125,000.00 (One Hundred and Twenty-five Thousand Pounds) £475,000.00 (Four Hundred and Seventy-five Thousand Pounds) represented properties and the rest relates to mortgages including sums due from the late Mr Raja and costs claims arising out of another piece of litigation.
68. Mr Van Hoogstraten had second thoughts and 5 days later remembered that he owned a number of properties in Cannes with a value of £2,050,000.00 (Two Million and Fifty Thousand Pounds). He identified a bank account with Credit Lyonais and suggested this failure was due to his lack of access to records or facilities. I find it surprising that he should forget £2,000,000.00 (Two Million Pounds) worth of assets. He does not strike me as a forgetful man. Indeed it was clear that he had a very detailed knowledge of the evidence, which was before me on 9 and 10 December 2002. He does not state whether or not those properties are subject to charges.
69. On 15 November 2002 he filed a further affidavit saying that Englehart's had paid two sums of £50,000.00 (Fifty Thousand Pounds) to Attridges his criminal solicitors out of the proceeds of sale of a property owned by his parents and the balance of the loan he had received from Tombstone Ltd.
70. A Mr Martin swore an affidavit on 19 November 2002. He was a consultant solicitor with Attridges and he deposed in his affidavit (contrary to Mr Van Hoogstraten's affidavit) that Attridges had received no money for conducting work on behalf of Mr Van Hoogstraten. Mr Martin failed in his affidavit to reveal that he personally had received £50,000.00 (Fifty Thousand Pounds) on account of costs he was to incur when he left Attridges and acted on his own account including representing Mr Van Hoogstraten on his appeal.
71. Mr Van Hoogstraten made a further affidavit also on 15 November 2002 under paragraph 8 of the Order objecting to the Order I made on the 11 October 2002. He indicated that Mr Englehart had taken instructions on the Freezing Order and advised him that Mr Minaides could not deal with the matter. Mr Van Hoogstraten suggests that he believed the Freezing Order was not sustainable because it could have easily been shown that a Mr Browne who provided evidence had lied. He said that he had dismissed Mr Minaides because the matter of the Freezing Order was a simple matter. He suggested that the Order of 11 October 2002 was made because he had deliberately chosen not to attend. The Order was made of course because he had failed to comply with the Freezing Order. It's operation had been suspended to give Mr Van Hoogstraten an opportunity to attend and make further representations. To date no payments of course have been made.
72. Mr Van Hogstraten signed a further witness statement on 21 November 2002 in opposition to the application to strike out and suggested that the jury verdict was given on an uncertain basis so that the matter could not be determined without evidence of cross-examination and that this could only be done at trial. He confirmed that the contents of the Re-Amended Defence and Counterclaim were true and accurate and he relied upon it in opposition to the Claimants application for strike out and summary judgment.
73. I agree that it is not possible under a part 24 application to determine the issues identified in the Re-re-amended Particulars of Claim and the Re-Amended Defence and Counterclaim. That approach I rejected in my judgment of 4 July 2002. The Claimants application under part 24 accordingly is bound to fail. He confirmed the matters stated in his letters for his non-compliance. He referred to a witness statement of a former employee of Healys as did Mr Minaides in his fourth witness statement. This seemed an attempt to undermind the credibility of Healys and Mr Lightfoot in particular. I have already commented in by Judgment of 4 July 2002 that Mr Lightfoot's witness statements tend to include a large number of submissions and extraneous matters. Not withstanding that Mr Lightfoot has not shrunk from repeating the process in his other subsequent affidavits and witness statements. I made it clear on the 27 November 2002 that I was not going to entertain any cross-examination on affidavits nor was I going to attempt to resolve any issues as to credit either of the evidence of Mr Lightfoot or Mr Van Hoogstraten. In that later context I was not going to allow the Claimants to use this hearing as an opportunity to cross-examine Mr Van Hoogstraten at length in relation to issues, which were properly for the trial. I did however, make it clear that if he wished Mr Reza could call Mr Van Hoogstraten as a witness if he wished to clarify the evidence that he had deposed to. Mr Reza did not take up that opportunity and I have decided the present issues solely on the evidence that has been filed on the part of both sides. I therefore ordered that the references to the employee of Healys be struck out and removed from the record and no reference be made to them. Similarly, when Mr Van Hoogstraten filed his sixth affidavit he made reference to a trust document and his will and I ordered that those documents be disclosed only to Mr Irvin and Healys. Reference to them was curtailed at the hearing in the event the documents to my mind are not particularly significant save that in one respect which I shall refer to further in this Judgment in a neutral way.
74. It is essential at this stage not to become embroiled in a mini trial. I also am mindful of the fact that if the Claimants wish to allege that Mr Van Hoogstraten is in contempt (as apposed to being in breach of an Order) they must prove that to the criminal standard. There is clearly an overlap. Paragraph 3 of my Order of 13 November 2002 provided for an unless Order in relation to the affidavits. If the affidavits are not in compliance because on the balance of probabilities I determine that he has not fully revealed all of his assets then that provision operates. That is why I gave the Claimants permission to Re-Amend their application. It was made abundantly clear both on the 13 and 27 November 2002 that such an application would be entertained by me. Mr Reza at the hearing before me on the 9 December affected to suggest that the case could only be determined on the applications, which were actually extant. That seemed to me to be purely technical. I cannot see that Mr Van Hoogstraten's evidence would be any different on a strike out application as opposed to an application alleging he is in contempt. Indeed one would have expected his evidence might be more comprehensive if that is the point in relation to the more serious allegation.

CLAIMANTS RESPONSE

75. On 25 November 2002 Mr Lightfoot swore his fifth affidavit. This affidavit was supplemental to the affidavits which had already been filed which had led to the Freezing Order and was designed to show that the two affidavits of Mr Van Hoogstraten in purported compliance with paragraphs 9 and 10 of the Freezing Order were obviously untrue, demonstrated a deliberate and conscious attempt by Mr Van Hoogstraten to conceal the true extent of his assest assets and were a further contempt in respect of the previous Orders and thus were nothing more than a transparent attempt to avoid his Defence and Counterclaim being struck out.
76. He made the point (with which I agree) that the Freezing Order by virtue of the definition of Respondents assets required Mr Van Hoogstraten to deal with more than his own personal assets. For that reason alone as I have already said the affidavits and information do not comply.
77. It is not appropriate at this stage to attempt to deal with the many matters, which Mr Lightfoot raises in his affidavit. There are however a number of clear matters which not withstanding a further affidavit of Mr Van Hoogstraten to which I shall make reference below lead me to the conclusion that Mr Van Hoogstraten has assets which he has not disclosed in the two affidavits. I am satisfied beyond reasonable doubt that that is the position.
78. In case it might be suggested elsewhere that the evidence does not enable me to come to a conclusion to that standard I am satisfied on a balance of probabilities in any event that that is the case.
79. I am satisfied that Mr Van Hoogstraten has wilfully concealed his interest in significant other assets. I cannot attempt at this stage to identify all of those assets; that will be the task of the sequestrator, which I propose to be ordered to be appointed in this case.
80. I shall refer to some aspects only.

HAMILTON PALACE

81. Mr Lightfoot has identified the web of companies, which appear to own Hamilton Palace in his first affidavit. When Mr Van Hoogstraten gave evidence at the trial it was according to various articles exhibited by Mr Lightfoot to the effect that he had spent £28,000,000.00 (Twenty-eight Million Pounds) over the last 17 years on Hamilton Palace.
82. In addition Mr Lightfoot deposed that Mr Van Hoogstraten asserted that he had an art collection alone which was worth £200,000,000.00 (Two Hundred Million Pounds), that he had thirty bank accounts either in his own or company names, and that he owned 8 hotels in Brighton and Hove.
83. He also deposed that he believed the Raja claim was peanuts and was not a significant case to motivate him to arrange for Mr Raja to be murdered.
84. Mr Lightfoot conceded that newspaper reports were not the most compelling of evidence and could be inaccurate, but he exhibited several reports and they were mainly consistent as regards this evidence. None of the matters was identified by Mr Van Hoogstraten in his compliance affidavits.
85. In addition (at paragraph 78) Mr Lightfoot refers to a cash security of £1,000,000.00 (One Million Pounds) required for Mr Van Hoogstraten's bail. This was returned to him in April 2002 yet Mr Van Hoogstraten did not explain what had happened to the sum in his affidavit. In his seventh affidavit he suggested that the money was borrowed from Lloyd's TSB as an unsecured load to him and the monies here returned to the Bank when the security was released. Once again he produced no documents to support this loan. Jhe had time but chose not to do so. I find his explanation incredible and reject it.
86. At paragraph 104 Mr Lightfoot identifies Mr Van Hoogstraten's share holdings in Tombstone Ltd. and Planet Properties Ltd. where no disclosure of those has been made.
87. He also adduced in support of his affidavit statements made by a Mr Browne (a former associate of Mr Van Hoogstraten who gave evidence against him at the criminal trial) and correspondence he had with a Mr Philip Beresford who complied "The Sunday Times Rich 500 from 1995 and 1997". Mr Van Hoogstraten in his letter to me to which I have already referred said that Mr Browne was a liar and that he could demonstrate that. Mr Beresford provided a witness statement dated 25 November 2002 exhibiting correspondence that passed between him and Mr Browne. Those letters were written in 1996 and 1997 and purport to show that Mr Van Hoogstraten is worth a lot more that the Sunday Times believed and considerably more than he alleges he is worth now. I find no assistance from this evidence.

MR VAN HOOGSTRATEN'S RESPONSE

88. Mr Van Hoogstraten swore a sixth affidavit in response to Mr Lightfoot's fifth affidavit. He exhibited a trust deed, which was set up on 30 June 1992. Although he refers to his children being the beneficiaries that is not the entire picture. He is a potential beneficiary under that trust and an object of discretionary powers exercisable by him as Trustee. He is also the trustee. I will say nothing more about the terms of the trust as they are not significant save in one respect. At the hearing before me on the 10 December 2002 Mr Reza introduced a transcript of an interview "Money Money Money" Mr Van Hoogstraten gave to Granada Television on 25 October 1999. the purpose of that was to show some consistency about assets which he apparently owned but being subject to a trust. The trust referred to is a statement that Hamilton Palace would be no home, but is (and these are Mr Van Hoogstraten's own words) "is a perpetual trust which will be endowed with the bulk of my wealth the intention being that it becomes a permanent mausoleum and I think that the underlying reason there is just to make sure that when I die nothing or the same things not going to happen to my empire and my assets as happens to everybody else's …". There is not one shred of evidence produced by Mr Van Hoogstraten showing any such trust has been set up (even if one could be validly set up). His statement there is completely contradicted by the trust deed, which does not show any such effect. These pieces of evidence demonstrate to my mind that Mr Van Hoogstraten simply cannot be believed on anything he says about his assets.
89. He attacked Mr Lightfoot for relying on the newspaper reports. Unfortunately for Mr Van Hoogstraten, Mr Lightfoot obtained the transcripts and exhibited them to his seventh affidavit.
90. I have considered those transcripts and it demonstrates quite clearly to my mind that the purpose of the evidence given by Mr Van Hoogstraten was to show that he personally was very wealthy and that the assets were deployed to support that. They extended to the various assets identified by Mr Lightfoot correctly in his fifth affidavit and set out above.
91. Mr Van Hoogstraten attempted to avoid the consequence of that in a number of ways.

ANTIQUE COLLECTIONS

92. His evidence at the trial is quite clear, he calls it "my" collection. He has attempted in his sixth affidavit to suggest that the art collections were gifted to his children between 1995 and 1997. That of course is contradicted by his "Money Money Money" interview where the reporter (unchallenged by Mr Van Hoogstraten) refers to Hamilton Palace as being "built to last for thousands of years the entire main floor will be one vast gallery which will house his misers hoard of furniture and paintings which Hoogstraten values at £200 million". According to his present affidavits he had by that time given it all away to his children. That appears to be a negation of what he stated in his interview "although Hoogstraten has five children by three different mistresses he is no believer in inheritance. His children will be allowed to live in the Palace but never own it".
93. At paragraph 38 of his sixth affidavit he suggests that he has never stated that he personally owned or had a beneficial interest in Hamilton Palace. That is contradicted by his evidence at the trial and the interview "Money Money Money". He is evasive in paragraph 39 when he says that he believes it is owned by Hamilton Palace Ltd. I refer to Mr Lightfoot's detailed evidence in respect of the share structure in his first affidavit.
94. On the 9 December 2002 Mr Van Hoogstraten swore a seventh affidavit in response to Mr Lightfoot's seventh affidavit. In paragraph 3 he partially waives privilege and says that he was advised to keep it simple as regards assets as it was not relevant to the case. He asserts that he explained to his counsel that Hamilton Palace and most of his perceived assets had several years earlier for tax and estate planning purposes been gifted to his children and mostly held in the form of bearer shares. He was specifically asked he said about the hotels and explained the legal ownerships and asserts that his counsel Mr Richard Ferguson QC told him that he should not go into the actual ownerships between himself and his children as it was not relevant and the jury would not understand the differences.
95. I find that a most extraordinary statement. I cannot believe somebody with the experience of Mr Ferguson QC would allow the evidence to be given in the way that is was if he knew that Mr Van Hoogstraten did not claim any interest in the various assets. The whole thrust of the evidence is plain to see when the transcript is read. Its purpose is to give the impression that Mr Van Hoogstraten is a man of considerable wealth by listing his antique collection, his thirty bank accounts (mostly in the name of his other name Von Hessen), his vast expenditure on Hamilton Palace. I cannot accept that Mr Van Hoogstraten would have been allowed so seriously to have mislead the jury.
96. Equally, I do not accept the premise for the excuse put forward by Mr Van Hoogstraten. It is plain when one reads the transcript that the purpose of putting this evidence in was to show that Mr Van Hoodstraten was so wealthy that he would not be concerned with the Raja's claim. Mr Reza with some ingenuity sought to suggest that Mr Van Hoogstraten was referring to the claim as intimated in 1999 (at the time of Mr Raja's murder) but that does not hold water. He would still have to explain his position at the time of the trial to show that it was still to use his words "peanuts", the evidence does not give any impression of intending to cover events back in 1999. Event if it did it would be inaccurate then. All of these structures were in place supposedly in 1999, yet at the time of his interview for Money Money Money, he was still giving the impression that he was the owner of assets of considerable value.
97. My conclusion is that Mr Van Hoogstraten has only told the truth when it was necessary for him to do so and that was when he was on trial for murder. His evidence there corroborates what Mr Lightfoot has said in his first affidavit. Mr Van Hoogstraten now chooses to be portrayed as a man of considerably less worth because it suits him to do so. I reject his affidavit evidence. To my mind it is completely untrue and incredible.
98. I should stress that saying that save in relation to the assets mentioned above namely Tombstone Ltd., Hamilton Palace, the antique collection and the (as yet unidentified bank accounts) the hotels in Brighton and Hove where the position is the same I am not making any determination as to the ownership of other disputed assets.
99. I am not in a position to determine fully what his assets are and that is not the point of the exercise in any event. I am satisfied to the standards that I have set out above that his affidavits are not true affidavits and that he has failed to comply with the Freezing Order as extended by the 10 September 2002. I am satisfied therefore that he was also in contempt on the 11 October 2002 and that he has failed to purge that contempt because his affidavits are not true.
100. This breach is a serious and continuing breach. It has now gone on since the Freezing Order was made on 27 August 2002. Mr Van Hoogstarten has put up a whole series of reasons as to why he initially should not comply and his purported compliance is a charade. Such conduct to my mind shows that he is plainly holding the Court in contempt and abusing its processes. For that reason alone that is sufficient justification for him to be debarred from defending and prosecuting his Counterclaim further and I accept the Claimants submission that he is and remains in contempt of Court.
101. It also means that he is in breach of paragraph 3 of my order of 13 November 2002 which provided that if he did not serve the affidavits in compliance his Defence and Counterclaim should be struck out and the Claimants would be entitled to such relief as is appropriate.
102. That is not the sole matter however. The Claimants initial application was based on Mr Van Hoogstraten's conviction for manslaughter. The application is based upon a series of authorities starting with Arrows Nominees Inc. –v- Blackedge [2000] 2 BCLC 167, Hamilton –v- Al Fayed – The Independent 21 December 2000 and Terry –v- Hoyer [2001] EWCA Civ 678.
103. The Claimants submit the conduct of Mr Van Hoogstraten has caused severe injustice as it has deprived the Claimant of the opportunity of properly preparing for and presenting the claim for trial, put the fairness of the trial in jeopardy by preventing or discouraging Mr Raja from giving evidence and has led to an obstruction of the just disposal of the proceedings with a considerable increase of the cost of pursuing complex litigation without the benefit of Mr Raja's evidence.
104. There are three areas where Mr Raja's oral testimony would have been vital. First, the original arrangements were based on oral arrangement made between Mr Van Hoogstraten and him. Second, there is the serious issue of Mr Van Hoogstraten application to set aside the Order Mr Raja obtained in April 1999. It is alleged by Mr Van Hoogstraten that Mr Raja was fraudulent and gave purgered evidence in an affidavit in support of his application. That was not raised as a possibility whilst Mr Raja was alive so he has been unable to answer it at all whether in statements or evidence or otherwise. Third, in the Re-Amended Defence and Counterclaim Mr Van Hoogstraten has made further fresh allegations against Mr Raja, which can only be resolved by oral testimony. That again was raised long after Mr Raja's death.
105. I accept Mr Reza's submission that the actions complained of must be shown to be done for the purposes of hindering the trial. It is not sufficient if a party does and act without that intention or possibly unless he is reckless as to whether or not that is likely to be the result.
106. Mr Reza submits no evidence on the conviction itself to show that Mr Van Hoogstraten was motivated to obstruct the progress of the trial. I disagree. I have read Newman J's direction to the jury both as regards manslaughter and murder. It is quite plain that the learned Judge addressed the motive both as regards murder and manslaughter and that motive was the litigation with Mr Raja.
107. I have particularly read the direction in relation to manslaughter, which Mr Reza set out in full in his skeleton argument. The conviction based on that direction can only take place on the basis that Mr Van Hoogstraten counselled the other defendants to frighten Mr Raja by threatening him with force assaulting him or kidnapping him or doing damage to his home but without any intent to order any serious bodily harm. It may be (and I am expressing no view about this) that Mr Van Hoogstraten can successfully challenge the conviction for manslaughter, but that is not the end of the matter to my mind. Even if Mr Raja had not been killed if the connection between Mr Van Hoogstraten and the other defendants is established merely to frighten him that is a sufficient abuse of the process of the Court to my mind to disentitle a party from participating further in litigation. A regular occurrence in the Crown Courts is interference with witnesses and juries. If a party indulges in such act of intimidation he cannot expect in any civilised society simultaneously to reap the benefits of the other members of that society and be permitted to participate in litigation. He is abusing the processes.
108. That is why I said earlier in my Judgment that it might not be the case (I express no concluded view at the moment) that even if Mr Van Hoogstraten is successful in his appeal that that in itself will enable him to set aside any Orders striking out his Defence and Counterclaim.
109. I am quite satisfied having seen the transcript of the summing up that the only motivation was in relation to the dispute in this action with Mr Raja.
110. Accordingly I reject Mr Reza's submission that there is no evidence showing that necessary connection.
111. For this reason also it seems to me that the Claimants are entitled to succeed on their application.

LEGAL EXPENSES

112. Mr Van Hoogstraten has been in breach of paragraph 11 of the Freezing Order. He has on the evidence presently before me initially been in breach as regards compliance because of advise he apparently received from Mr Di Stefano and possibly others that the exceptions in paragraph 9(b) enabled him not to comply.
113. In addition he failed to comply with the requirements in respect of legal expenditure. He said to me that Mr Englehart advised him that the Freezing Order did not apply to monies being dispersed by Mr Englehart. That is contradicted by a witness statement provided by Mr Englehart pursuant to the Order of 13 November 2002, which is dated 22 November 2002. Mr Englehart has a long period of involvement with Mr Van Hoogstraten. In the present litigation he purports to act for Tombstone Ltd. and as the money money money interview shows he apparently advised Mr Van Hoogstraten as to his perpetual endowment and the challenge that posed to trust law.
114. Mr Englehart in his evidence says that he thought Mr Van Hoogstraten was attending the notification of dispersement. How Mr Englehart thought that Mr Van Hoogstraten was going to do that when he was in prison and the monies were with Mr Englehart is not explained. I find Mr Englehart's evidence at the moment completely unsatisfactory.
115. I have grave concerns therefore as to the role of Mr Di Stefano and Mr Englehart in relation to advice that they initially gave to Mr Van Hoogstraten in relation to the Freezing Order. I accept at the moment that the failure to notify Healys might have been an innocent breach. On the evidence before me I am not persuaded that the breach is such as would justify striking out the Defence and Counterclaim. Nor on the evidence before me am I persuaded that if Mr Van Hoogstraten's evidence is correct that the breach is other than a technical one. Of course ignorance of the law or mistake as to the law is no defence in relation to a contempt application. If somebody knows what the Order says and does not comply with it whatever the reason such a person breaches it. On Mr Van Hoogstraten's case he did not comply because his lawyers advised him (erroneously) that he did not need to comply.
116. If that is the correct position the true fault lies with the lawyers and not Mr Van Hoogstraten.
117. In respect of the legal fees the matter has now been rectified and regulated in any event.
118. However, in view of the unsatisfactory nature of the evidence both as regards Mr Di Stefano and Mr Englehart I am going to Order them within 28 days of this Judgment being handed down to make and file and serve on the Claimant's solicitors an affidavit setting out in full what advice they gave to Mr Van Hoogstraten in relation to the Freezing Order the date of the advice and whether the advice was given orally or in writing and if in writing exhibiting a copy of that advice. There is no question of privilege in this issue because on the evidence before me they have aided and abetted a contempt. I have a provisional view that they have aided and abetted a contempt of Court so that the solicitor and client privilege will not apply to the advice that was given.
119. If they wish to challenge this Order they should apply to me by 4pm 18 December 2002.

CONCLUSIONS

120. For the reasons set out above the Defence and Counterclaim is struck out and I will hear counsel on the form of an order as a result.
121. In addition, Mr Van Hoogstraten in my Judgment was in contempt and continues to be in contempt. The fines I imposed were considerable. In imposing large fines I hope to "encourage" him to come clean. It was for that reason that the operation of the fines was suspended. None of this has worked. Accordingly the only way in which this can be addressed is to appoint a sequestrator over Mr Van Hoogstraten's assets so that his assets can be identified collected and realised for the purposes of paying fines, any sums due to the Claimant's both as to damages and costs. I will appoint the sequestrator suggested by the Claimants.
122. The fines already total in excess of £1,000,000.00 (One Million Pounds) and a further sum in excess of £200,000.00 (Two Hundred Thousand Pounds) falls due by 4pm Friday 13 December 2002.
123. I accept Mr Reza's submission that the fines at that level are in danger of becoming disproportionate and oppressive. To my mind this is a serious contempt and normally would attract a sentence of imprisonment. Sentencing Mr Van Hoogstraten to a sentence of imprisonment will not achieve very much unless I make it consecutive to the current prison sentence that he is serving. It seems to me that a financial penalty is a matter, which ought to concentrate his mind more carefully. I will reduce the fines for the existing contempt as set out in my Order of 11 October 2002 to £100,000.00 (One Hundred Thousand Pounds). In addition I shall impose a weekly fine of £50,00.00 (Fifty Thousand Pounds) to commence on the 13 December 2002 until Mr Van Hoogstraten purges his contempt.
124. A further reasoning behind that Order is the fact that I intend to make a substantial on account payment in respect of the Claimants damages and costs. I will hear counsel on the form and amount of any such interim payment application the Claimant wishes to make when this Judgment is delivered.
125. In addition the Freezing Order will continue as an aid to execution.