Bank of Baroda & Ors v GVK & Ors

An application to adjourn a fixed trial must be decided by reference to the overriding objective and whether proceeding would be fair in all the circumstances. The assessment is fact-sensitive and does not depend on a mechanistic checklist. A late adjournment is a remedy of last resort, particularly where delay results from the applicant’s own conduct, creates substantial listing consequences, or jeopardises the efficient use of court resources. The absence of a final experts’ joint memorandum is not necessarily fatal where the underlying reports and oral evidence remain available. A litigant in person is not automatically entitled to an adjournment: the court must assess whether the absence of representation creates actual unfairness or a breach of natural justice.

The defendants applied on 5 October 2023 to adjourn an eight-day Commercial Court trial due to begin on 10 October 2023. They sought time to obtain alternative legal representation, finalise a joint memorandum concerning Indian law expert evidence, and secure the availability of their expert.

The trial had previously been adjourned from June 2022 to October 2023, and the timetable for expert evidence had been extended by several consent orders. The defendants’ solicitors had ceased acting shortly before trial. The defendants relied on alleged delay, the absence of an agreed joint memorandum, and the expert’s reported illness and unavailability. The claimants opposed the application, relying on the defendants’ delay, the lack of supporting evidence, and the prejudice caused by losing the trial window.

1. Application refused. The court had power to adjourn under CPR 3.1(2)(b), but that discretion had to be exercised in accordance with the overriding objective in CPR 1.1. The central question was whether proceeding with the trial would be fair in all the circumstances, applying the fact-sensitive approach identified in Bilta (UK) Ltd (in liquidation) v Tradition Financial Services Ltd [2021] EWCA Civ 221.
2. The proposed adjournment could not realistically be short. It would lose the existing trial window and defer the trial until 2025. The defendants had not explained why they waited until immediately before trial to apply, nor provided evidence of steps taken to obtain new representation. Their previous change of legal team and earlier adjournment justified careful scrutiny of the application.
3. The absence of a final joint memorandum did not make a fair trial impossible. The expert reports were before the court, areas of agreement and disagreement had been identified, and the experts could give oral evidence. A draft joint statement did not bind the parties under CPR 35.12.5.
4. There was no sufficient evidence that the defendants’ expert was unable to attend trial. The correspondence suggested that he could review the memorandum before giving evidence, and any remaining disagreements could be addressed in cross-examination.
5. The lack of legal representation did not establish unfairness amounting to a breach of natural justice. The defendants were sophisticated litigants, had access to legal advice, and could potentially act through a director or employee with the court’s consent. The claimants’ counsel would also remain subject to the obligation of fair presentation, as discussed in GASL v SpiceJet [2023] EWHC 1107 (Comm). The evidential gaps supported the inference that the defendants’ difficulties were self-created.