RP Explorer Ltd v Malhotra & Anor

Article 6 does not ordinarily guarantee a party’s personal attendance at a civil trial. It requires a reasonable opportunity to know and answer the opposing case and to present one’s case effectively, without substantial disadvantage.

Where an incarcerated defendant faces allegations of fraud, the nature of the case may ordinarily require the defendant’s participation because personal knowledge is central to issues such as deceit. Participation need not necessarily be physical, but the defendant must be able to put forward his case. Any waiver of Article 6 rights must be clear and unequivocal and supported by minimum safeguards. Practical difficulty, including difficulties caused by a pandemic, does not itself extinguish the right to a fair trial.

RP Explorer Ltd claimed damages for conspiracy and deceit arising from its purchase of global depository receipts connected with an Indian refinery project. The claims remained against Mr Malhotra and Mr Rastogi. Mr Rastogi’s claim was stayed because of an anti-suit injunction in India. Mr Malhotra was imprisoned in Dubai and had not participated materially in the English proceedings.

Shortly before trial, Mr Malhotra stated that he could not defend the proceedings or instruct lawyers. The court considered whether it could proceed to judgment in his absence, having regard to Article 6, the nature of the fraud claim, his communications and conduct, and whether he had waived his right to participate.

1. Article 6 framework. Article 6 does not guarantee personal presence before a civil court. The relevant question is whether the party had a reasonable opportunity to know and comment on the opposing case and to present his case effectively, with equality of arms. The court must consider the nature of the dispute, whether personal testimony is required, whether the incarcerated party wishes to attend, and what procedural measures are needed to preserve a fair hearing.
2. Application to fraud claims. This was a case in which Mr Malhotra’s personal presence was required in the relevant sense. The allegations included deceit, which required consideration of what he knew when representations were made. His participation therefore had to enable him to put forward his side of the story, although physical attendance was not necessarily required.
3. No waiver. A waiver of Article 6 rights must be clear and unequivocal and attended by minimum safeguards commensurate with the importance of the right. Although Mr Malhotra had previously failed to engage with the proceedings, his later communication indicated a wish to be involved and an inability to do so. That was inconsistent with a clear and unequivocal waiver.
4. Further directions. The trial and judgment could not proceed immediately. Directions were required to establish, preferably by independent evidence, whether Mr Malhotra wished to instruct lawyers, whether he could do so, whether he wished to participate, and how participation could be achieved.
5. The court added that the right to a fair trial was not lost merely because practical difficulties, even potentially prolonged difficulties caused by the Covid-19 pandemic, made participation difficult. A further directions hearing was invited.