Moulder:
The High Court has refused an Indian lawyer permission to appear for an Indian company that had dismissed its English solicitors and barristers shortly before trial.
Dame Clare Moulder, sitting as a High Court judge, also refused the application of GVK Coal Developers (Singapore) Pte Ltd and the other defendants to adjourn the trial – which had already been adjourned from last year – with the next window not until 2025.
Nobody from the defendants then appeared at the hearing and the judge decided to press on in their absence, on the basis that they were trying to achieve an adjournment that way.
The case is a banking claim brought by a group of six Indian banks and is valued at more than $2bn.
The trial began on 9 October with a day of judicial pre-reading and then the following day the court considered GVK’s request to be represented by Kartik Nayar, an Indian lawyer who was not an employee of the company, and to apply for another adjournment.
Nobody from the company attended court, to the judge’s surprise. In response to an email from the court, GVK’s legal department said Mr Nayar was “familiar with the details of the case and fully capable of providing assistance to the court for the adjournment application”.
Dame Clare said: “However, I have received no evidence in support of the statements in that email.”
The defendants were previously represented by counsel and by City firm Norton Rose Fulbright but a notice that the defendants would be acting in person was filed at court on 26 September. They had parted company with their previous solicitors shortly before the original trial in May 2022.
The judge said: “In the experience of the court, it would usually be possible to obtain urgent assistance from counsel on an application of this nature.
“There is no suggestion that the defendants are unable, due to financial constraints, to obtain representation and whether or not they could obtain representation for the ongoing trial having parted company shortly before the trial with their solicitors and counsel – it remains my view that they could have obtained counsel to appear at this hearing should they have chosen to do so.”
In refusing to exercise her discretion to allow Mr Nayar to address the court, the judge said that, as he was not an English lawyer, he could not assist the court on questions of English law, while the facts and grounds for the application were set out in the defendants’ application and witness statement – which was made by Mr Nayar anyway.
“Although I understand Mr Nayar is an Indian qualified lawyer, it seems to me that there is little disadvantage to the defendants in not allowing Mr Nayar to make submissions on this application and any disadvantage is outweighed by the greater public interest of limiting rights of audience before the High Court to those who have been granted rights of audience in accordance with the statutory provisions.
“The statutory scheme is in the public interest, enabling those engaged in legal proceedings to know that they are briefing a person who has been properly trained and approved by an appropriate professional body.
“It provides judges with the assurance that they can rely on the professionalism and integrity of the advocates appearing before them.”
In a second ruling, Dame Clare rejected the application for an adjournment of the trial “for a short period of time” so the defendants could secure alternate legal representation – in fact, the next available date for an eight-day trial was in 2025.
The defendants had neither shown why they parted company with their lawyers, nor that they were, as they claimed, actively seeking legal representation. There was also no explanation for why they only made the application immediately before the trial.
“I accept the submission for the claimants that the evidential gaps in this application do call into question whether the defendants have a genuine concern of prejudice, or whether this application to adjourn is in fact a tactic on the part of the defendants to put off the trial for many months to come.
“The defendants are sophisticated litigants. I have no evidence which would suggest that they are in any way constrained by their financial situation from instructing lawyers.
“They have had the benefit of legal advice in England more or less throughout the proceedings and, it would appear, have also had the benefit of legal advice in India.”
She added that, as litigants in person, the defendants could be represented a director or employee, holding that in the circumstances “it cannot be said that the lack of representation would result in unfairness to the defendants amounting to a breach of natural justice”.
On 11 October, with nobody from the defendants in court, the judge decided to proceed with the trial in their absence, having delayed it that morning to give them the opportunity to appear via the remote link.
The defendants had not explained why they were not present and Dame Clare said they were trying “indirectly to achieve the adjournment of the trial which they were refused yesterday”.
“I am in no doubt that, in the circumstances, the defendants have deliberately absented themselves from the hearing today and, by their continued correspondence, merely seek to waste both the court’s time and the claimants.”
Apt Ruling from My Ladyship. Right of audience is so fundamental. It is akin to Jurisdiction, imo. Respectfully.