Transomas Limited & Anor v Kheri Trading Limited & Anor

1. MRS JUSTICE JOANNA SMITH: This is the first court day of a ten-day trial; I have already spent two days reading into the case. The defendants are here, ready and expecting to proceed. The trial date was listed well over a year ago at a CMC on 22 June 2022.

2. On 27 October of this year the claimants applied to adjourn the trial. I refused that application in a detailed ex tempore judgment. There has been no application for permission to appeal that judgment.

3. At that hearing, I raised with Ms Kaur, representing the claimants in person, that if she was going to represent the claimants at trial she would need to seek permission to do so pursuant to CPR 39.6. She gave me no reason to suppose that she did not intend to represent the claimants at the trial or that they would therefore be left unrepresented.

4. Since 27 October, as far as the court is aware, the matter has been progressing towards trial. There has been email correspondence that the court has been copied into between the parties and the court has provided directions, including in relation to the trial timetable.

5. The trial bundle, which was prepared by the defendants, was provided in electronic form to the court and to Ms Kaur on a USB stick. My version of that USB stick was unencrypted and I was able to open it without difficulty. Ms Kaur says that she has been unable to open the USB stick that was sent to her, that she informed the defendants' solicitors of her difficulties and that they responded by sending her links to the documents, which I believe she has been able to use in the past. I understand from Mr Anderson KC, representing the defendants, that Ms Kaur has not in fact accessed the links she has been sent to the documents in the trial bundle on this occasion.

6. Today, Ms Kaur arrived late for the hearing and has now told me (for the first time) that it is not in the claimants' best interests for her to represent them, that she has been unable to get legal representation at such short notice to represent the claimants at the trial, and that she will not now be making an application under CPR 39.6 to represent the claimant companies. This perhaps explains why Ms Kaur has apparently chosen not even to try to access the trial bundle via the links that were sent to her.

7. I gave Ms Kaur some time to discuss this rather startling statement with Mr Anderson, but those discussions have not progressed matters.

8. Mr Anderson submits that, in circumstances where the claimants are now effectively unrepresented and therefore must be deemed not to have attended at court, the court must dismiss this case. It is axiomatic that the claimants cannot proceed to advance their case without representation of any kind. No attempt has been made to apply again for an adjournment and no sensible proposals have been made by Ms Kaur as to the future progress of this action.

9. In my judgment, and sadly, this seems to be a situation of the claimants' own making. The claimants' solicitors, Withers, came off the record just before the PTR at the end of September 2023. At that time, the case was largely ready for trial; indeed Withers had already, as I understand it, put forward the list of documents that the claimants wished to be included in the trial bundle. I made clear to Ms Kaur at the PTR that the claimants should urgently seek new legal representation for a trial that was, at that time, approximately six weeks away. Had the claimants acted swiftly to obtain such alternative representation, it is likely that they could have been properly represented at trial. However, Ms Kaur expressed no particular desire at the PTR to retain new legal representatives on behalf of the claimants. Indeed, I formed the very clear impression from the submissions I heard that she did not intend to instruct new lawyers and, since then, she has not done so. I have been provided with no evidence, at any stage, of any efforts being made by the claimants to find alternative legal representation.

10. Instead, Ms Kaur applied at the end of October to adjourn the trial, as she had intimated that she would during the course of the PTR. In her skeleton argument for that adjournment application, she said expressly that she was not making the application on the grounds that she was a litigant in person acting for the claimants or that there was any lack of funding. As I recorded in my judgment (at paragraphs [11] and [12]), her position on that changed over the course of the hearing. Nevertheless, at no stage has Ms Kaur provided any evidence to the court of a lack of funding, either on the part of the claimants or on the part of the directors, who I understand to be Ms Kaur and her mother.

11. The court was not informed in the lead up to trial that Ms Kaur could not access the trial documents. If Ms Kaur feels swamped by this trial and unable to cope now, then that is no doubt unsurprising. But she has, in my judgment, received ample warnings and has apparently not heeded those warnings. I understand from her evidence in the trial, that Ms Kaur is a qualified lawyer in the United States, so she should have been very well aware of the potential consequences of not heeding appropriate warnings and not obtaining appropriate representation.

12. Insofar as funding is concerned, Ms Kaur suggested to me today that I had somehow given her the impression at the PTR that the court was not prepared to hear argument about her funding position in connection with her intended application to adjourn the trial. It was further suggested that this had led Ms Kaur to believe that she should not address the court on her funding position at the hearing of the adjournment application. I believe this to be mistaken. At the PTR, the reason for Withers coming off the record was not addressed in any detail. The defendants indicated that the claimants have access to a substantial amount of funding and informed me of the claimants’ involvement in other (funded) litigation, also against the defendants, elsewhere in the world. However, there was no application for an adjournment before me on that occasion and if Ms Kaur had wished to apply for an adjournment on the grounds of a lack of funding, no doubt she would have done so. The court most certainly did not discourage such an application.

13. I consider Ms Kaur to be a sophisticated litigant with legal training. Had the reason for her application for an adjournment been that the claimant companies needed time to obtain funding and then to instruct alternative legal representatives I have no doubt that she would have made that clear. She could easily have provided evidence as to the financial position of the companies, or indeed of herself and her mother. She has apparently chosen to do none of those things.

14. In circumstances where the companies are not represented and I have, from Ms Kaur, no evidence as to the attempts she has made to instruct new legal representatives, or as to any attempts she may have made, or intends to make, to raise any funding for this action to proceed, it seems to me that I have little choice other than to dismiss this case. No attempt has been made to make a second application to adjourn and I have been given no grounds whatever to suppose that if I were to give the claimants more time in which to prepare for the trial, that would make any real difference.

15. For completeness I observe that I do not regard the situation that has arisen in this case as being directly analogous to a situation in which a party has simply failed to attend trial and nor do I consider the principles that would apply in such a situation (to which I was not in any event referred by either party) to be applicable in the unusual circumstances of this case. At all times prior to her submissions, the defendants and the court have understood that Ms Kaur would be seeking permission to represent the claimants at trial. She has not suggested that there is anyone else who might represent the claimants and I consider it would be artificial to regard this as a case of mere non-attendance. The claimants have attended through their director, Ms Kaur, but for reasons she has explained, Ms Kaur does not now wish to represent them.

16. I must have regard to the overriding objective, to the need to deal with the case justly and at proportionate cost, to the use of court resources and to the position of the defendants, who have had serious allegations of fraud hanging over them for some considerable time. I am very conscious that a considerable amount of court time has now been wasted in the lead up to trial with a fruitless application to adjourn the trial and, now, a decision from Ms Kaur, apparently at the last possible moment, that she will not represent the claimants at trial, thereby causing the trial to collapse on its first day. This has come out of the blue and without any attempt to inform the defendants in advance of today. Ms Kaur has not made any concrete proposals as to what action the court should take if it is not to dismiss the claim. At the hearing today she has expressly said that she is “not inviting [the court] to do anything”.

17. In all the circumstances, I consider that the only course of action consistent with the requirements of the overriding objective is to dismiss the action. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS Tel No: 020 7404 1400 Email: [email protected]