Raja v Van Hoogstraten
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CHADWICK:,LORD JUSTICE CHADWICK,MR JUSTICE CRESSWELL,LORD JUSTICE PILL,Lord Justice Carnwath,LORD JUSTICE CARNWATH,LADY JUSTICE SMITH,LORD JUSTICE BROOKE,LORD JUSTICE BUXTON,Lord Justice Chadwick,Lord Justice May,Lord Justice Pill |
| Judgment Date | 15 November 2005 |
| Neutral Citation | [2003] EWCA Civ 2301,[2003] EWCA Civ 821,[2005] EWCA Civ 1180,[2003] EWCA Civ 911,[2005] EWCA Civ 1523,[2005] EWCA Civ 1483,[2004] EWCA Civ 968,[2005] EWCA Civ 1235 |
| Docket Number | A3/2005/2342, A3/2005/2564,A3/2003/0537; 0538; 0579; 0580; 0581; 0879; 0898,Case No: A3/2003/0537 AND 0538 A3/2003/1704,A3/2005/1638; A3/2005/1639,A3/2005/2342,A3/2003/0537; 0538; 0579; 0580,0581; 0879,A3/2005/1638/1640/1767/1639 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 November 2005 |
[2003] EWCA Civ 821
Lord Justice Chadwick
A3/2003/0537; 0538; 0579; 0580,0581; 0879
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(MR JUSTICE PETER SMITH)
MR H REZA (instructed by Minaides Robson, London WC2A 1JE) appeared on behalf od the Appellant
MR C FLINT QC (instructed by Byrne & Partners, London EC1R 0BE) appeared Defendant
(Approved by the Court)
Thursday, 15 May 2003
These numerous applications —which are for permission to appeal from orders made by Peter Smith J on 12 December 2002, 10 February 2003 and 3 April 2003, and for stays of those orders pending appeal —are listed for hearing on notice before a two-judge court on 13 June 2003. When giving direction on 15 April for that hearing to be listed on notice, I indicated that it was my provisional view that permission to appeal ought to be granted on each of the applications; in that it seemed to me that each raised an issue or issues as to which there was a real, as distinct from fanciful, prospect of success on appeal. In the light of that provisional view it would plainly have been wrong to refuse the applications for permission to appeal on paper. Equally, as it seemed to me, it was not right in the circumstances of this case, which are complex, to grant permission to appeal without hearing submissions from the potential respondents to an appeal; particularly in circumstances where it would be plainly wrong to grant a stay, which the judge himself had refused without giving the successful claimants an opportunity to be heard on that question.
The fact that I had formed a provisional view does not lead to the conclusion that, after argument before a two-judge court and having heard submissions from both sides, permission to appeal will be granted. Nor, of course, does it lead to the conclusion that, if permission to appeal is granted, a stay pending appeal will be appropriate in this case. Nor to the conclusion that an appeal for which permission is granted will ultimately succeed.
The applications have been listed today, in advance of the date on which they are to be heard and determined by the court, in order to give the parties an opportunity to show cause why an envelope sent to the Court of Appeal office by solicitors instructed by Mr Hoogstraten on 15 April should not be returned to those solicitors.
The background to that is this. On 12 December the judge appointed sequestrators over the property of Mr Hoogstraten. On 10 February 2003 he directed, at paragraph 8 of the order of that date, that Mr Hoogstraten and all persons in possession of his assets should take all reasonable and necessary steps as may be required by the sequestrators to enable the sequestration to be conducted and the sale of the defendant's assets to proceed. In particular, the defendant was required by 4.00 pm on 27 February 2003 to answer requests for information contained in a letter from the sequestrator dated 23 December 2002; and by 4.00 pm on 24 February to provide the sequestrator with full details of the extent and location of the arts and antique collection referred to in the judgment of Peter Smith J. Those orders were made (as appears from paragraph 8) to enable the sequestration to be conducted and the sale of the assets to proceed. It has not been suggested that those orders have been complied with. Indeed it is accepted by counsel for Mr Hoogstraten, as I understand it, that they have not been complied with it.
Notice of appeal against the order of 10 February was filed on 12 March 2003; that is to say, some two to three weeks after the order ought to have been complied with. The notice of appeal sought a stay of the order, but it did not seek any variation of the order pending an appeal. It was not until 15 April that it occurred to the solicitors acting for Mr Hoogstraten that one way round the problem of continuing breach was to send to the Court of Appeal a sealed envelope. The envelope is said to contain information pursuant to paragraphs 8(a) and 8(b), and also paragraph 9, of the order of 10 February. That was sent on the basis that the envelope was to be held to the order of the Court of Appeal and not to be disclosed to anyone without an order from the Court of Appeal.
The Court of Appeal is not required, as one of its functions, to act as a repository for unsolicited sealed envelopes which parties may choose to send to it from time to time. There are no facilities for maintaining such unsolicited material; other than on an ad hoc basis. In any event there is no justification for retaining such material unless an order is made to that effect. In exceptional cases, of which X Limited v Morgan Grampian (Publishers) Limited [1991] 1 AC 1 is an example, the Court may direct that material which the court below has ordered to be produced shall be produced on a basis —that is to say, on the basis that it will not be disclosed to the other party until after the hearing of an appeal. That X v Morgan Grampian was an exceptional case is apparent from its facts. The judge below had ordered the disclosure of the source of a journalist's information. The obligation to disclose journalistic sources was the only issue that was to be decided. The point was taken before the Court of Appeal in that case that the journalist, who had refused to disclose his source in response to the judge's order, should not be heard in the Court of Appeal at all because he was in contempt. It was said that he must first purge his contempt. The solution which this Court adopted, in those circumstances, was to say, in effect, "if you are serious in your desire to comply with court orders (if you have to) the right course is for you to do so "with prejudice" pending the resolution of the question whether the order should have been made." The House of Lords held that that was a sensible order to make in those particular circumstances. But it held, also, that the Court of Appeal was wrong to refuse to hear the journalist when he failed to comply with its order. It was not a condition of appeal against an order that the appellant first purge his contempt by complying with the order; so defeating the purpose of the appeal.
The usual course is that information which has to be disclosed for purposes of the nature set out in paragraph 8 of the order of 10 February 2003 is produced notwithstanding the existence of a pending appeal against the underlying order for sequestration of the assets (or restraining dealing or disposition, as the case may be). The production of such information enables the assets to be located, preserved and safeguarded, pending any resolution of an appeal against the underlying order. In particular, until the assets are sold, it is difficult to see how the preservation of them to the satisfaction of whoever is charged with that duty is going to do any damage to the owner of the assets. So there is no reason, in those circumstances, to impose any fetter on compliance with an order for disclosure. Indeed it is highly undesirable that there should be a fetter on an order for disclosure which is intended to ensure that, between the date when the underlying order is made and any subsequent date on which it is reviewed, there will be no dealing with, or disposition or destruction of, the assets.
In those circumstances I can see no purpose in varying the judge's order at this stage so as to provide that it may be complied with by sending a sealed envelope to the Court of Appeal. First, any order now made will not have the effect of relieving Mr Hoogstraten from whatever consequences may have resulted from his failure to do what he was required to do by 24 February. It would simply mean that he is no longer in continuing breach of the order of 10 February 2003. But he has already taken the decision whether or not to comply with the order of 10 February; and it must be assumed that he has decided not to. Certain consequences may or may not follow from that, but that is not the concern of this Court on this occasion, and there is no reason why this court should make orders now which will have the effect of relieving Mr Hoogstraten from the decision which he has taken. If he has taken the decision on the basis that his appeal is going to succeed, then the risk that it will not (with whatever consequences ensue) is a risk which he will have to accept for a little longer. Second —in contrast to the position in the Morgan Grampian appeal —there is no reason, as I see it, why the information which has to be disclosed should not be disclosed in advance of the determination whether the sequestration orders were properly made. What use the sequestrators make of the information is, of course, a matter for them; and they will no doubt have in mind that there is a real possibility that permission to appeal will be granted; and, if granted, it will be granted on the basis that there is a real prospect of success on an appeal. I do not, myself, regard as very serious the risk that sequestrators facing that possibility will think it sensible to expose themselves to potential liability —or the need to claim under any indemnity —by selling assets unless there are good reasons to do so. If there are good reasons to do so they can be explained at the time and the judge can consider the matter. If Mr Hoogstraten is dissatisfied with a decision to sell assets,...
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