Kali Ltd & Ors v Chawla & Ors

When deciding whether to permit an unqualified family member to represent a litigant under the Courts and Legal Services Act 1990, the court asks whether permission is just in all the circumstances. The exceptional-circumstances approach for amateur practice advocates does not apply to family advocates. Permission remains subject to close trial management and continuing review.

A procedural error justifies a new trial only where it is serious and caused an unjust result. Failure to provide trial documents before cross-examination was an error, but did not establish unfairness without proof of material prejudice. The court also left foreign self-incrimination privilege unresolved where there was no evidential foundation, while indicating that adverse inferences may sometimes be drawn.

Two linked actions were tried together after an eight-day trial before HHJ Hodge QC, sitting as a Deputy High Court Judge in the Chancery Division. One concerned a loan, a commission-sharing arrangement and security over residential property. The other concerned the alleged sale of that property, possession and competing interests in the registered charges.

Mr Chawla sought permission to appeal on grounds concerning his daughter’s representation of him, the refusal to postpone his cross-examination until trial documents were supplied, and the absence of a warning concerning possible self-incrimination in foreign criminal proceedings. The central questions were whether the trial involved a serious procedural irregularity and whether any irregularity made the result unjust.

1. Outcome. Mr Chawla’s application for permission to appeal was refused. Permission to amend the grounds was granted, but permission was refused on both additional grounds. The request for a private hearing was also refused.
2. Right of audience. Under section 27(2)(c) of the Courts and Legal Services Act 1990, the court must distinguish an amateur practice advocate from a family advocate. The exceptional-circumstances principle applies to the former but not the latter. The question for a family advocate is whether, in all the circumstances, it is just to permit the person to speak for the litigant: D v S (Rights of Audience) [1997] 1 FLR 724; Clarkson v Gilbert [2000] 3 FCR 10.
3. The judge was entitled to allow Mr Chawla’s daughter to represent him as a practical measure. He was abroad, unrepresented and wished her to act. The potential conflict arising from her position in the related property proceedings did not automatically disqualify her, because it did not affect the loan and commission issues on which their interests coincided. Permission required tight trial management. The judge had to keep the position under review and revoke permission if the representation threatened a fair trial.
4. For the purposes of CPR Part 52.11(3)(b), a serious procedural irregularity must have caused an unjust decision before a new trial is justified. The alleged defects did not materially affect the outcome. The judge’s findings principally rested on Mr Chawla’s inconsistent evidence and were supported by material independent of the matters criticised.
5. The judge erred by failing to postpone cross-examination until the ordered trial bundles were supplied. Asking whether Mr Chawla remembered his witness statements was insufficient. Nevertheless, the error did not cause demonstrable injustice: the documents were read to him, he made no material complaint at the time, and the adverse findings were not shown to result from his lack of access to hard copies.
6. Section 14(1) of the Civil Evidence Act 1968 was accepted to be limited to UK criminal offences. The court did not decide whether English law recognises a discretionary common-law privilege concerning foreign proceedings. Arab Monetary Fund v Hashim [1989] 1 WLR 565 and Brannigan v Davison [1997] AC 238 were considered, but no proper foundation had been provided because the alleged Indian proceedings and their connection with the evidence were not substantiated. The court added that, in an appropriate case, refusal to answer questions about an unlawful commission might support adverse inferences.

• Court of Appeal (Civil Division): Refused Mr Chawla permission to appeal and granted permission to amend the grounds only to refuse permission on the amended grounds.
• High Court, Chancery Division: HHJ Hodge QC’s order of 13 September 2007 followed an eight-day trial of the linked actions. The judge had refused permission to appeal.