Bank of Baroda & Ors v GVK & Ors

Under Civil Procedure Rules 1998, r 39.3, the court may proceed with a trial in a party’s absence where doing so is consistent with the overriding objective. The court must balance the absent party’s fair opportunity to present its case against the need for robust case management and finality. Relevant considerations include whether the absence is deliberate, whether the party has been given reasonable opportunities and clear information to participate, and whether further delay would serve a legitimate purpose. Corporate litigants in person remain responsible for understanding and complying with the procedural rules and for arranging properly authorised representation. The safeguards in r 39.3 remain available if judgment is later given against the absent party.

The claim was being tried against corporate defendants who had previously been legally represented but had become unrepresented shortly before trial. The defendants had unsuccessfully sought an adjournment and permission for an Indian lawyer, who was neither an employee nor authorised to practise in England and Wales, to represent them. After that application was refused, the defendants did not attend the resumed trial, either in person or remotely, despite further notice and opportunities to participate. The claimants applied for the trial to proceed in their absence. The central issue was whether the court should exercise its power under Civil Procedure Rules 1998, r 39.3.

1. The court determined to proceed with the trial in the defendants’ absence under Civil Procedure Rules 1998, r 39.3. The court applied the overriding objective and balanced the importance of a fair opportunity to present a case against the need for robust case management and conclusion of litigation, having regard to Williams v Hinton [2011] EWCA Civ 1123.

2. The defendants were sophisticated corporate litigants with an established legal department. They had been informed that the trial would proceed, had been given opportunities to attend remotely, and had been told how an employee could seek permission to represent them. Their repeated failure to attend or provide evidence explaining their position supported the inference that their absence was deliberate and designed to delay or thwart the trial.

3. The time difference between England and India did not justify non-attendance. The trial had always been scheduled during normal English court hours, and no application had been made to vary the sitting hours.

4. It was for the defendants to understand the Civil Procedure Rules 1998 and to address their own internal authorisation arrangements. The claimants were not required to advise them on those matters.

5. The claimants were invited to prove their case and tender their evidence. The court drew attention to the safeguards in r 39.3, including the possibility of seeking legal advice in relation to any judgment ultimately given against the defendants.