GVK insistence on representation by Indian lawyer, attempt to delay trial draw UK High Court's ire

A commercial court in the United Kingdom (UK) on October 11 decided to move ahead with a suit filed by five Indian banks against GVK Coal Developers Pte Ltd (Singapore) without waiting for the latter to make an appearance. [Bank of Baroda and others v. GVK and others].Justice Dame Clare Moulder DBE, a judge of the UK High Court made the decision after noting that GVK had failed to engage a counsel who had a licence to practice in the UK, that the Indian lawyer sought to be engaged by them did not have the Court’s permission to do so, and that GVK was acting to delay or thwart the progress of the trial.“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…it is appropriate to proceed with the trial in the absence of the Defendants,” the Court said..Pertinently, GVK had sought to engage an Indian lawyer, Karthik Nayar, to represent them as a “party in person” in the suit. However, the rules governing court procedure only allowed for such an appointment in certain unusual circumstances.The said rule (Rule 39.6) required the company to get permission from the Court if they wished to be represented by an employee.Further, this permission would only be given if there was clear evidence that (a) the company could not reasonably have been legally represented, and (b) if the employee is able and familiar enough with the case to ably assist the Court..Since Nayar was not GVK’s employee, and on finding that there was no evidence to show that GVK was “actively seeking” alternative counsel, the Court on October 10 declined to permit the Indian lawyer to represent GVK. The order also noted that GVK had recently parted company with law firm Norton Rose, the second time it had done so with English representatives.Meanwhile, Karishma Vora, barrister at 39 Essex Chambers London, instructed by Reed Smith LLP, is representing the five Indian banks in their $2.1 billion claim against GVK Coal Developers Pte Ltd. The suit concerns GVK’s borrowing of over $1 billion from the banks to construct a coal mine in Australia..How things went down in the UK Court.The Court's October 11 order contains a detailed account of what prompted the judge to go ahead with the trial, regardless of whether GVK made an appearance. .On October 10, the judge found that only Nayar was present in Court to represent the defendants.In the pre-lunch session, the Court decided not to grant Nayar permission to represent GVK and rejected an application to adjourn the trial.When the Court reassembled in the post-lunch session (at 2 PM) to discuss how the trial could proceed, the judge found that the Indian lawyer had left the courtroom and no one was present to represent GVK.The Court's officials then emailed GVK’s legal department informing them that the hearing would continue on Wednesday morning (October 11) at 10.30 AM.The same email warned the company that the Court may continue hearing the matter in its absence if it failed to secure adequate representation..On the day of the scheduled hearing (October 11), at 9:29 AM, GVK’s legal department replied to the email and said that they did not have the ability to conduct the trial without adequate legal assistance.At 11:17 AM, the Court’s officials sent another email, informing GVK that it could still participate in the hearing if it wished to.A 12 noon, GVK sent another response, requesting a video conferencing link to attend the hearing, although it also maintained that it did not have an attorney and was not well-versed with the procedure.Shortly before the hearing, which had been pushed to 2 PM by then, the legal department informed the Court that it would not be able to join the hearing “at such short notice” and that it was beyond the working hours in India. Therefore, it sought an adjournment..The whole episode did not sit well with the UK Court.“I infer that the Defendants had adopted a strategy to adjourn the trial and now that strategy has failed, the Defendants seek other means to delay or thwart the trial,” Justice Moulder said.“There continues to be no explanation as to why (since Mr Nayar left the Court on Tuesday lunchtime) no one has appeared at Court (either in person or by the remote link) for the Defendants to explain any difficulties or seek the assistance of the Court within the deadlines set by the Court. If the Defendants were genuinely in any difficulty one would have expected someone for the Defendants to have appeared via the link,” the judge added..The Court also rejected the “time difference between England and India” as a reason for not attending the trial on October 11.“It has always been a feature of this trial that it would take place during normal Court sitting hours in England.".The Court, therefore, made it clear that it is now moving ahead with the trial with or without the defendant’s presence. .[Read Judgment]