Transomas Limited & Anor v Kheri Trading Limited & Anor

This is the hearing of the claimants' application to adjourn the 12 day trial in this matter listed to commence in a five day window beginning on 6 November 2023. I also have before me today a second, short application by the defendants to which I shall return later.

The claimants are represented today by Ms Jackie Kaur, their sole director (“Ms Kaur”). The claimants' solicitors, Withers, came off the record very shortly before the hearing of the PTR on 28 September 2023. The application to adjourn was first intimated at the hearing of the PTR by Ms Kaur and the court made an order on that occasion (which I considered to be generous but appropriate given the recent loss of the claimants' solicitors), that if such an application was to be made, it must be made by 4 pm on 11 October owing to the fact that the trial was fast approaching.

In the event, Ms Kaur emailed a witness statement in support of the claimants' application to the court at 5 pm on 11 October, and subsequently filed her application and paid the court fee on 18 October. I have had no explanation for this and the defendants correctly pointed out in their skeleton argument that, in the circumstances, the claimants require relief from sanctions pursuant to CPR 3.9 in order even to pursue their application.

However, the defendants did not take any position as to whether relief should be granted by the court. The defendants have not suggested that they have been unable to prepare for the application today and they have served a detailed witness statement in opposition to it, together with a very comprehensive skeleton argument. Having regard to the guidance in Denton v TH White Ltd [2014] EWCA Civ 906, I consider that, in circumstances where the witness statement in support of the application was provided within an hour of the court imposed deadline, the breach is not serious. Although there is no explanation for the failure to file the application until a week later, the defendants were aware that the claimants intended to pursue the application and have not been prejudiced by the non-compliance with the order.

In all the circumstances, it seems to me to be consistent with the overriding objective to grant relief from sanctions. During the course of today's hearing, I indicated to Mr Cullen KC, acting on behalf of the defendants, that this was the approach I intended to adopt and gave him the opportunity to dissent. He did not do so. Accordingly, I formally grant relief from sanctions for the making of the application.

The application arises in the following circumstances. The underlying claim primarily involves a family dispute about, amongst other things, the sale of a hotel in Bayswater. The first claimant (“TL”) used to own the hotel. The late Jagmail Singh Gill (referred to as "Jack") ultimately controlled both TL and the second claimant (“TIL”) through his majority shareholding in Regency Holdings LLC ("Regency"), a Delaware company. Regency owns TL and TIL.

In 2015, TL sold the hotel to the first defendant (“KTL”), which is owned and controlled by the second defendant (referred to as "Mitch"), Jack's son. Jack died in 2020 and his wife, Amarjit Kaur (referred to as "Amarjit") is now Regency's majority shareholder. Mitch and his brother, Jagjit Singh Gill (referred to as "Jag") are Regency's minority shareholders. Their sister, Ms Kaur, is now the sole director of TL and TIL and, as I have said, is representing them before me today. Ms Kaur alleges that Mitch dishonestly deceived their father, Jack, and induced the sale of the hotel through misrepresentations about its market value and about the tax consequences of the transaction.

It is probably fair to say that this dispute has become increasingly acrimonious over time and that the claimants have made increasingly serious allegations against the defendants, culminating in allegations (made in the context of the present application and set out in Ms Kaur's witness statement) of manipulation, bullying, harassment, assault, deceit and false imprisonment in respect of Mitch and Jag's treatment of Amarjit. During her oral submissions before me, Ms Kaur repeated these allegations and made yet further, serious and, as far as I could see, wholly unsubstantiated allegations of misconduct by the defendants and by their solicitors. I accept Mr Cullen's submission that, in so far as these allegations are new and the defendants have not had an opportunity to answer them, it would be unfair to give them any weight in the context of this application.

As for the serious allegations in Ms Kaur’s witness statement and skeleton, I note that there is no evidence whatever to support them and for that reason again I cannot take them into account. It is a sad feature of this case that Ms Kaur appears strongly to believe that she has been thwarted in the proceedings at every turn, that she has been harassed, subject to surveillance by the defendants and that the documentary evidence has been tampered with. However, there is not a shred of evidence of any of this and no attempt has previously been made (whilst the claimants were represented by solicitors) to raise or pursue the majority of these serious allegations. I shall return to issues arising in connection with the documentary evidence, and disclosure in particular, in a moment.

Connected with her allegations of bullying and harassment, is Ms Kaur's assertion in her witness statement that this case alleging fraud and misrepresentation against her brother and his company is really about her mother's wellbeing. Amarjit is 85 years old and Ms Kaur has told me, and it is recorded in the application notice, that she has recently and sadly been diagnosed with cancer. This is certainly of some significance to the application to adjourn the trial, although not, I suspect, in the way that Ms Kaur might suggest.

The trial date was listed well over a year ago at a CMC on 22 June 2022. At that time, and at all times prior to the PTR, the claimants were represented by a full legal team of solicitors and counsel. Until oral submissions before me today, there has been no suggestion that there is any lack of funding on the part of the claimants and the application to adjourn is not made on the basis that the claimants are unable to retain lawyers to fight their case. Ms Kaur appeared today without legal representation. In her skeleton argument, she expressly says that neither her status as a litigant in person nor the question of funding is relevant to the timing of the trial.

However, in her reply submissions Ms Kaur rowed back from that statement in her skeleton argument, suggesting that, if the claimants are granted an adjournment of the trial, she intends to obtain funding and thereafter to instruct solicitors to represent them at trial. However, the difficulties in this approach were succinctly articulated by Mr Cullen. If the claimants wished to make an application to adjourn the trial based on their present lack of funding but anticipated prospects of obtaining funding in the future for the purposes of instructing legal representatives, it was incumbent on them to explain in detail what their current financial position is, what steps they have taken to explore the issue of funding since Withers came off the record, why it has proved impossible to make any funding arrangements since that time, what arrangements will be made to obtain funding in the future and what, if any, steps have been taken to find solicitors who might be prepared to act in circumstances where funding can be obtained. However, presumably because the claimants' original position in this application was that funding was not relevant, their evidence did not even attempt to deal with any one of these issues.

Indeed, the only evidence before the court as to the claimants’ financial position suggests that they are financially healthy and certainly well able to fund legal representation if they so wish. The claimants' last filed accounts show a combined net asset value of approximately £26 million and I understand that TIL owns valuable land and real estate. I also understand the claimants to be funding legal representation in other extant proceedings before this court.

In all the circumstances, I reject this last-ditch attempt to rely upon a need for time in which to obtain funding. There is no evidence whatever to support it. Given the available evidence as to the Claimants’ financial position, I can only infer that they have chosen, for whatever reason, not to instruct alternative legal representation.

Setting funding to one side, the grounds for the application are identified in Ms Kaur’s witness statement and detailed skeleton argument (the latter running to approximately 18 pages). Doing the best I can to summarise those grounds, which I took care to check with Ms Kaur at the outset of the hearing, they seem to me to be:

At the end of her witness statement in support of this application, Ms Kaur said this about the application to adjourn:

I pause to observe that, importantly, the claimants do not explain anywhere in their evidence why this application has been made so late and why it could not have been made before. Ms Kaur has also not sought to explain that before me today. I shall return in due course to the paragraph that I have just referred to in her witness statement.

Unsurprisingly given the proximity of the trial, the application to adjourn is hotly contested by the defendants who, as I have said, have filed a detailed witness statement in opposition. I am most grateful to Mr Cullen for his assistance today and, in particular, for the short and clear manner in which he addressed the claimants' main complaints.

CPR 3.1(2)(b) provides the court with the discretion to adjourn a hearing, which discretion is to be exercised in accordance with the requirements of the overriding objective. The Chancery Guide at paragraph 12.28 provides that, once a trial has been fixed it will "rarely be adjourned". An application for an adjournment "should only be made where there has been a change of circumstances not known at the time the trial was fixed. The application should be made as soon as possible."

The defendants referred me to the case of Fitzroy Robinsonv Mentmore Towers No 2 [2009] EWHC 3070 (TCC) for the principles to be applied which are summarised in the later decision of Elliott Group Ltd v GECC UK & Ors [2010] EWHC 409 (TCC) by Coulson J (as he then was) at [7] to [9]:

I pause to observe that while these principles are obviously of central significance, this

On the contrary, although there appears to be a history of the claimants not complying with procedural court orders, nevertheless, it has never been suggested prior to the PTR that the trial would need to be adjourned by reason of delays or by reason of any inability to prepare for trial. At a hearing before Master Pester in February of this year, he warned the claimants that the trial date would not be moved and, as I have said, no subsequent application was initimated until the PTR.

The reasons now given for the adjournment for the most part do not relate to an inability to prepare for trial because of delays, and the claimants do not say that they have not had a proper or reasonable time in which to prepare the case that is in fact advanced by them in these proceedings, nor could they. As I have said, they have until recently had a team of lawyers preparing for trial. Disclosure has been completed, witness statements exchanged and expert reports produced. The claimants' former solicitors had even provided their comments on the content of the bundle for trial.

I do not consider that these are circumstances in which it could be said that the claimants have not had a reasonable and proper time in which to prepare their case. This is notwithstanding that the claimants are now without legal representation. I accept the defendants' submissions that this is complex litigation which, until very recently, has been fought between well-resourced and sophisticated parties who have got it ready for trial. There is no reason to suppose that the claimants cannot now be ready for trial and, in so far as their task will be made more difficult by their lack of legal representation, that appears to be their own choice.

Given that this is not a case involving delay or an inability to be ready for trial, it seems to me that I must consider with care each of the reasons given by the claimants for the proposed adjournment with a view to determining (1) whether they amount to a change of circumstances since the trial was fixed; and (2), if they do, whether a proper application of the overriding objective supports the grant of an adjournment. This will obviously involve considering various of the matters identified in the authorities to which I have referred, including the parties' conduct insofar as relevant to the issue of adjournment, and the consequences of an adjournment for both parties and for the court.

An important feature of this exercise will involve the balancing of the obvious desirability of retaining a fixed trial date and avoiding the very substantial costs of an adjournment, including the prejudice to the defendants of such an adjournment, against the prejudice to the claimants of refusing an adjournment.

Turning then to the grounds for the adjournment identified by the claimants.

Disclosure. The claimants raise a variety of detailed complaints about disclosure, but I accept the defendants' submissions that these complaints must be viewed against the four preliminary points that they make in their skeleton argument which, in my judgment, are fatal to the application insofar as it relies upon inadequate disclosure of one form or another.

First, there is no allegation that the defendants have failed to comply with any orders for disclosure made in this litigation. In her statement, Ms Kaur refers in bold type to the defendants' refusal to turn over what she refers to as "adequate company and personal records", despite repeated requests. But none of these requests appears to have been made by way of application in the litigation and no orders have been made.

Second, there is no application for specific disclosure and no suggestion as to how the alleged inadequacies in the disclosure might be addressed.

Third, it would appear that Ms Kaur has not herself reviewed the defendants' disclosure, something she confirmed during her submissions before me today. It is very difficult to understand how she is in a position to criticise the disclosure in such circumstances. The best she could do today was to say that it is her understanding that relevant documents have not been provided. However, her assertions that she wishes to obtain "adequate company and personal records" are vague and do not descend to any specific details. It is difficult to know whether she wants these in the context of other sets of proceedings or in the context of this case, and, if this case, what relevance any of these documents are said to have to the existing 34 issues for disclosure.

Fourth, there is no explanation from the claimants as to why any complaints they may genuinely have about disclosure have not been raised earlier. On the claimants' evidence they have known of the importance of the documentary evidence to their case for some considerable time. Ms Kaur expressly told me, both in her skeleton and in her oral submissions today, that this was a feature of the case that was emphasised by the claimants' counsel at the case management conference back in 2022 and it is fair to say that numerous points on disclosure appear to have been debated between solicitors during the course of the proceedings. It would appear indeed that many of the complaints that are now made by Ms Kaur, have been made before and ventilated in correspondence at length between solicitors. None of them has been pursued before the court until now.

I accept the defendants' submissions that these points clearly support the proposition that the complaint about disclosure is not properly to be regarded as a change of circumstances. Without an explanation as to why the claimants have suddenly decided that the defendants' disclosure is inadequate so as to merit an application to adjourn the trial, I reject any suggestion that it is to be regarded for these purposes as a genuine change of circumstances.

There is not time to go through all of the claimants' individual complaints about disclosure, but I make the following overarching observations.

The parties both engaged in a very substantial and extremely expensive disclosure exercise overseen, as one would expect in litigation of this sort, by experienced legal teams. There were, as I have said, 34 issues for disclosure, the majority of which were for Model D disclosure. The defendants carried out a detailed and sophisticated review process using technology assisted review, together with quality control reviews. This exercise cost the defendants alone approximately £500,000 and they ultimately disclosed approximately 20,000 documents. This does not tally with Ms Kaur's evidence that only "minimal evidence" has been made available regarding the hotel transaction.

The claimants conducted a similar process, ultimately disclosing in excess of 36,000 documents. Following disclosure, it is to be inferred that the claimants' solicitors reviewed that disclosure in detail because they produced an index of 3,639 disclosure documents drawing from both sides' disclosure, that they considered should be included in the trial bundle. No suggestion was made at that point that there were any issues with disclosure that might be sufficiently serious to result in an application to adjourn the trial, or indeed any application. This appears to be wholly inconsistent with the assertion at paragraph 31 of Ms Kaur's witness statement that, since the defendants' disclosure "we have not had an adequate opportunity to inspect the disclosure."

The claimants repeatedly refer to a lack of personal and company records, but that is not a phrase that appears anywhere in the issues for disclosure in these proceedings, and Ms Kaur does not descend into any details around these documents, as I have already said. Even if it is true that she was not permitted access to documents in 2020 (and I am not in a position to say one way or the other) there is no evidential basis on which I can determine that she has not since been given access to all the documents corresponding to the 34 disclosure issues identified and agreed by the parties.

In so far as the claimants wish to obtain disclosure to establish some as yet unpleaded case against the defendants, that is not a legitimate approach. This case must be fought on the pleadings and evidence as it stands. It is not appropriate to seek an adjournment with a view to obtaining more time to fish for additional avenues of claim. It is certainly not appropriate to seek disclosure to establish what Ms Kaur describes in capital letters in her skeleton as "SUBSEQUENT ONGOING CONCEALMENT AND MISREPRESENTATION”.

The claimants complain that the defendants have had improper access to their data and documents, including privileged documents, a complaint apparently about Amarjit's email account. However, this issue has already been dealt with between solicitors. There appears to have been inadvertent access to that account, but it was blocked and addressed in detail during the disclosure process. Rehashing it for the purposes of this application takes matters no further.

In all the circumstances, I do not consider that there is a genuine change of circumstances in respect of disclosure and nor do I consider that the requirements of the overriding objective remotely support the proposition that the claimants should have an adjournment to investigate issues surrounding disclosure. There is no reason to think anything other than that any issues on disclosure have been fully exhausted in the proceedings to date and that there is therefore no reason why the case cannot proceed to trial. I shall return to the countervailing factors to an adjournment in a moment.

The desire to consolidate this case with ongoing legal proceedings. Ms Kaur says in her witness statement that Mitch and Jag have filed some six or so law suits in the United States since March 2023. Although the number of law suits is disputed, the defendants accept that they have filed three law suits, while it seems that Ms Kaur or entities controlled by her, have filed two. During her submissions before me today, Ms Kaur confirmed that there are also further proceedings on foot in the this court to which I have already referred.

This is certainly a change of circumstances since the listing of the trial, but it is not a change of circumstances that could possibly justify an adjournment of the trial date. Aside from the fact that, until now, it has never been suggested by the claimants that there should be any consolidation of these claims and that the claimants have themselves chosen to file a number of these claims in another jurisdiction, it is in any event inconceivable that the court would act now so as somehow to consolidate these various sets of proceedings. An adjournment would not bring the prospect of that happening any closer. Indeed, I agree with Mr Cullen when he submits that the idea of a consolidation in Texas is both bizarre and unrealistic. As he said, it is “not a procedure known to man or beast”.

Further, I have heard nothing to suggest that the existence of proceedings in other jurisdictions is likely in any way to jeopardise the prospects of a fair trial in these proceedings. It would be wholly inconsistent with the overriding objective to grant an adjournment on these grounds and I decline to do so. The claimants chose to bring the present proceedings in this court on discrete issues. They cannot now say, only a few days before the start of the trial, that there are in fact lots of other issues that they now wish to fight over and investigate.

Ms Kaur suggests in her evidence that it is of significance that Jag is not before the court, saying that Mitch's evidence cannot be relied upon. She goes on to suggest that Jag should be a party to the proceedings. However, the claimants chose to sue Mitch and his company and not Jag. Ms Kaur herself says in her evidence that at a hearing in June 2022 the claimants' counsel told the court that "Jag was considered not relevant at all". His absence from the trial cannot conceivably be a reason for an adjournment and there has never been any attempt to join him to the proceedings, nor is there an application to do so now.

Ms Kaur also complains in her evidence of Mitch's conduct in relation to her (and Amarjit's) companies and says that she has identified issues with the recorded levels of turnover and expenses in these businesses. However, these complaints, even if they could found a new cause of action, do not justify an adjournment of existing proceedings which have been on foot for several years and are on the verge of trial.

The claimants have legitimate grievances against various named individuals not parties or witnesses to the current action. These include former employees, two accounting firms, the former provider of IT services to the parties called Mussadaque Butt, two banks and two firms of solicitors, including the solicitors who represented KTL in the sale of the hotel, namely DDO Solicitors.

The majority of these complaints appear to concern a failure on the part of these third parties to provide documents, although some include allegations that data has been removed or tampered with, together with allegations of breach of fiduciary duty and blackmail not raised in these proceedings. However, these complaints do not appear to be new, many have been canvassed between solicitors in the proceedings, and they do not justify a very late adjournment of the trial. They are wholly unsubstantiated by any evidence whatsoever. The complaints of misconduct against individuals who are not parties to these proceedings are quite plainly outside the scope of the proceedings.

I agree with Mr Cullen that the claimants' willingness to make scattergun allegations against all and sundry in the context of this application without any evidence whatever is an indication of the lack of any real, genuine complaint. By way of example only and dealing with a few of these allegations:

The points I have already made in relation to disclosure generally also apply in relation to this ground.

The complaint that the trial amounts to a malicious prosecution. Ms Kaur says, without any evidence in support, that her brothers have engaged in a campaign of malicious behaviour designed to make her capitulate in these proceedings. She has, as I have already said, made very serious allegations, including that they drained her accounts, stole assets and at all junctures sought to conceal the truth. True or not (and there is no evidence whatever), the claimants have not shown how these allegations are relevant to the trial or its adjournment. Further, it is wholly unclear how the claimants square an allegation of malicious prosecution with the fact that they commenced these proceedings against the defendants. Equally unclear is how Ms Kaur can possibly allege, as she does, that Mitch has "forced this case to accelerate to adjudication". The case has proceeded in the ordinary way almost to trial.

In my judgment, this ground is, as Mr Cullen says, an entirely groundless allegation, unsupported by any evidence.

In light of my analysis, I cannot see that the claimants have advanced any genuinely good reason for an adjournment. I do not accept that there is any genuine change of circumstances or anything else that would make it either unjust or unfair for this trial to proceed. The claimants have had a proper and reasonable time to prepare for trial and, until recently, have been represented by a substantial legal team. It is not suggested that the claimants cannot now fight the trial without that team and I do not accept that the claimants will suffer any real prejudice if the trial proceeds. As I have already said, it appears to be the claimants choice that they remain without legal representation.

Furthermore, it is unclear how an adjournment would in fact solve many of the complaints that have been raised by Ms Kaur today. Referring back to the concluding paragraph of her witness statement, an adjournment would not achieve her goal of consolidating these proceedings with proceedings in other jurisdictions or of achieving a “global family settlement”. Much as it is to be desired that this family can settle their differences amicably, the claimants have chosen to pursue these proceedings to trial. An adjournment is not necessary for the purposes of requiring the defendants to comply with disclosure; that process already having been undertaken and no applications made for further disclosure. It is impossible to see that, even if proper applications were made to join additional parties to the proceedings, those applications would be acceded to in circumstances where the case against the defendants is ready for trial and no such applications have been intimated or made previously. Even now there are no applications before the court to join any other parties.

The case is ready to proceed to trial on the pleaded issues. The existence of other possible causes of action not yet pleaded or investigated is not a reason for an adjournment. That the claimants intend to demonstrate during any adjournment "the gross misuse of confidential and legally privileged information", is in my judgment a red herring. These issues have been investigated to date in the proceedings and no application has ever previously been made to the court.

Ms Kaur submitted that she is a single mother, that she has encountered difficulties with getting on top of the documents for trial and with understanding the arguments she must make. She also submitted that Amarjit is unwell and that these factors should be taken into account in the court’s considerations. However, given the way in which Ms Kaur chose to present the claimants’ application for an adjournment, I do not consider that these are factors which can or should weigh in the balance. Indeed, I have already inferred that the claimants appear to have chosen to pursue the proceedings without legal representation. Amarjit’s poor health (about which I have no medical evidence) is to my mind a very good reason why the trial should be heard sooner, rather than later.

Accordingly, I agree with Mr Cullen that there is little if anything to put in the claimants’ side of the balance in favour of an adjournment.

Against that I must have regard to the fact that the defendants will inevitably suffer very severe prejudice if the trial is adjourned. That prejudice may simply be summarised as follows. I understand that any adjourned trial cannot be listed for around 18 months. I also understand that in those circumstances it is likely that the defendants will incur approximately £700,000 in duplicative legal fees. I find that unsurprising in light of the complex nature of the case and the way in which it has been fought. Furthermore, I understand that in the meantime the defendants will likely suffer higher financing costs. Also important, as I have already said, is the very real risk that Amarjit's evidence, which is to be given in support of the claimants' case, may not be reliable or even available at any adjourned trial owing to her age and medical condition. Furthermore, memories of relevant witnesses are only likely to fade over a yet further 18 month delay.

In the event of an adjournment, the defendants will suffer another 18 months of serious allegations of fraud and misrepresentation hanging over Mitch and there will be no hope of those allegations being determined. It is very likely, in my judgment, that costs will spiral even higher. The claimants have a history of breaching procedural orders and I am not confident that things would improve. Any adjournment would obviously also inconvenience the court and other litigants waiting for trial listings.

In all the circumstances, and having regard to the overriding objective, the balancing exercise weighs very heavily, and in my judgment decisively, in favour of refusing the application to adjourn the trial. This trial will commence within the trial window in circumstances that I will come to in a moment.

I now turn to deal with the defendants' short application for an unless order in respect of further information which was ordered at the PTR on 28 September to be provided by the claimants by 4 pm on 6 October.

The claimants' position on the provision of this information has, as I understand it, fluctuated from suggesting that it would be provided (albeit out of time) to now saying that it cannot be provided in advance of any trial because it requires a very complicated and time-consuming exercise. I reject this. The questions posed by the defendants are discrete and straightforward. I made every effort at the PTR to ensure that that was the case by requiring that the original questions posed be amended with a view to ensuring simplicity.

The response to the questions should be readily within Ms Kaur's knowledge or, if not, she can respond by saying that she does not know. I accept that the information sought is important in the context of the discrete wages claim made by the claimants, specifically because it seeks information about a payment made to the Claimants that might give rise to an almost total defence to that claim.

In the circumstances I would consider it to be just and consistent with the overriding objective to make the unless order sought. I shall give the claimants until 4 pm on 3 November to comply, which I again consider to be very generous in circumstances where they have already had several weeks in which to comply with the Part 18 request, a request which was originally notified to them back in the summer. Absent compliance, the wage claim will stand dismissed and will not be further addressed at the trial.

Owing to the fact that we find ourselves so close to the start of the trial window, I intend to inform listing that I shall read into the case in the last two days of the window and that the court hearing itself will commence on 13 November. This also has the advantage of giving the claimants the maximum possible time now to prepare for trial.