Pike & Anor v The Indian Hotels Company Ltd

On 26 November 2008 the Taj Mahal Palace, Mumbai, India was the subject of a terrorist attack. On that night the Claimants were British guests at the hotel. They had just spent 15 days backpacking around Goa and, as a treat, the 2^nd Claimant had booked a one night stay before they were due to fly home from Mumbai. Shortly after the attack began the Claimants returned to their room, locked the door and turned off the lights. Some hours later they tried to escape through the window. Their room was on the third floor of the tower part of the hotel. They tied together sheets, curtains and towels to make a rope. They hung it outside their room and the First Claimant went first. The “rope” came apart and he fell to the ground suffering serious spinal injuries which have left him paraplegic. The Second Claimant was rescued subsequently. She did not suffer physical injuries but claims for continuing psychiatric consequences.

The Defendants are the company which operate the hotel. They are an Indian company.

The application before the Court is the Defendants’ application dated 1^st March 2013 seeking the following orders:

26 January 2009: The Claimants enter into conditional fee agreements with their solicitors.

There are three main issues for determination. These are:

The relevant provisions of the Civil Procedural Rules provide:

“In any proceedings to which rule 6.32 or 6.33 does not apply, the Claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6B apply.

(1)

An application for permission under rule 6.36 must set out –

(a)

which ground in paragraph 3.1 of Practice Direction 6B is relied on;

(b)

that the claimant believes that the claim has a reasonable prospect of success; and

(c)

the defendant’s address or, if not known, in what place the defendant is, or is likely, to be found.

……

(3)

The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.”

In respect of the first issue there are two questions to be answered:

The First Claimant suffers continuing pain and loss of amenity and substantial economic losses caused by his injuries. The Second Claimant sustained loss of earnings in England and Wales and has a continuing loss in the form of counselling. On that basis both Claimants have suffered indirect or secondary damage as a result of the Defendants alleged negligence in Mumbai. The Claimants’ submission is that this is sufficient to found jurisdiction. The Defendants challenge this.

The question as to whether indirect or secondary damage is sufficient to give jurisdiction to the English and Welsh courts is by no means tabula rasa so far as the present type of case is concerned. Indeed four High Court decisions have all answered in the affirmative. These cases are:

The cases of Booth and Cooley considered the previous rule namely CPR 6.20(8)(a). The wording was the same. The question was whether “damage was sustained within the jurisdiction”. I hope I do no disrespect to Teare J’s decision in Booth by summarising the reasoning as follows:

The three subsequent High Court decisions have all dealt with more detailed submissions, including submissions based upon the genesis of the rule. Most recently in Stylianou, Robert Nelson was given the same privilege as I have been given, namely a careful and detailed exposition by Defence Counsel, in this case Mr Doherty.

The Defendants’ submission is as follows:

Nevertheless, despite arguments very similar to or the same as Mr Doherty’s submissions in the present case, the judges in Cooley, Wink and Stylianou have refused to accept them. I shall therefore summarise their reasons, the Defendants attack in the present case upon their reasons, and my conclusions.

The High Court cases have determined that the ordinary natural meaning of “damage” includes physical and economic damage. (Booth paragraph 35, Cooley paragraph 32 – 34, 53) Wink (paragraphs 32 – 35). The Defendants submit that, given the legislative and European case law background, it is a perfectly proper and unforced interpretation of “damage” to restrict it to direct damage only. The Defendants submit that ascertaining the legislative intention requires that the meaning to which previous judges have been attracted, as a matter of first impression, must yield to the appropriate context.

Allied to this point is the reliance in Booth (paragraph 35) on the lack of a definite article before the word damage. The judge in Booth said “this suggests that it is sufficient for the purposes of sub paragraph (a) that some damage (not all the damage) is sustained within the jurisdiction.” The Defendants point out that the rule introduced in 1987 stated “the damage was sustained, or resulted from an act committed, within the jurisdiction”. They submit that the definite article was used in the Metall case to argue that damage could take place in a single country whereas direct damage may occur in more than one country. It was later dropped, they say, presumably in the light of the Metall decision. Thus, they submit that whether or not there is a definite article is not significant for the purposes of the present question.

Absent the European context on which the Defendants rely, it seems to me clear that the previous decisions are correct. As Haddon-Cave J said in Wink at paragraph 33 “there are no limiting words in sub paragraph (a) which would justify such a narrow meaning and exclude indirect damage. The word “damage” is not modified or trammelled in any way. The ordinary and natural meaning of the word “damage”…is any damage flowing from the Tort. In the words of Teare J at paragraph [37] in Booth, “damage” in this context means any “physical or economic” harm, ie. direct or indirect.” For the reasons I give below, the context upon which the Defendants rely does not alter that view. Whilst it may be said that the decision in Metall und Rohstoff was not concerned with the question of whether indirect or secondary damage could found jurisdiction, I agree with Haddon-Cave J’s statement in Wink [38] that “the direction of travel of the Rules of Court was clearly to maintain a broad, rather than a narrow, construction of “damage” by discarding the definite article to make it clear, selon Metall v Rohstoff that not all of the damage must have been sustained within the jurisdiction.”

The Defendants point to the fact that English courts have always been cautious in asserting jurisdiction over foreigners. See Metall und Rohstoff (page 435, 437). If there is any doubt about the construction of the rule it must be resolved in favour of the foreigner. Tugendhat J in Cooley dealt with this at [47] – [49]. He concluded that the interpretation to be placed on the CPR rule is clear. I do not disagree with him.

As to the European approach which the Defendants commend to the court, their submission is that insufficient regard has been given by the High Court Judges to the background to the rule and to the decision of the Court of Appeal in the ABCI case where, at paragraphs 43 – 44, the Court of Appeal said that clause (f) was introduced in order to ensure that English law was consistent with Article 5(3) of the Brussels Convention. However Tugendhat J addressed this submission head-on in Cooley at [35] – [46]. He pointed out that Parliament did not fully assimilate the rules relating to non party states with those relating to states which are a party. “The significant difference that Parliament left in being was that under the Convention and the judgment regulation the Court retains no discretion, whereas in relation to non-party states there is the discretion to be found in CPR Part 6.20 and 6.21(2A). Similarly in Wink [41] Haddon-Cave J said “the case law of the Court of Justice (“CJEU”) on Article 5(3) of the Brussels Convention/Brussels I Regulation is not relevant to the construction of ground 9(a) because the two schemes are fundamentally different in structure and policy. The EU rules seek certainty at the price of inflexibility: thus forum conveniens arguments are not permitted (see Owusu v Jackson [2005] ECR I-01383). By contrast, in respect of non-regulation countries, the common law rules adopt a more flexible legal framework which admits forum conveniens and makes the assumption of jurisdiction discretionary.” As has been pointed out many times this discretion is also a proper and proportionate brake on the over-exercise of jurisdiction. See Booth [36]; Wink [39].

The Defendants also rely on Rome II. This was referred to in Wink, but comprehensively argued before Sir Robert Nelson in Stilyanou. It was also comprehensively rejected by him. I do not disagree with his reasoning. In short the Defendants rely on recital 2 and 17 together with Article 4(1) which states that the applicable law to non contractual obligations is “the law of the country in which the damage occurs”. This is so whether the law in question is that of a Member State or not. However:

The relevant provisions of CPR:

The notes to the White Book 2013 state:

“7.6.2

Applications under 7.6(2)

In Marshall v Maggs reported under Collier v Williams [2006] EWCA Civ 20 the Court of Appeal held that the court can allow an application to extend time prospectively under rule 7.6(2) without being satisfied that the Claimant has taken all reasonable steps to comply with rule 7.5 as is required in a retrospective application under rule 7.6(3) but the court should still follow the guidance set out in Hashtroodi v Hancock [2004] EWCA Civ 652…

FG Hawkes (Western) Ltd v Beli Shipping Co Ltd [2009] EWHC 1740; … followed Marshall v Maggs and emphasised that the better the reasons for not having served in time the more likely that an extension would be granted…

7.6.5

Supported by evidence

“…the Court of Appeal has decided that for an extension to be granted the Claimant must put forward a valid reason. In Hashtroodi v Hancock …the Claimant applied ex parte for an extension of time of three weeks to serve the claim form one day before the expiry of the claim form. The extension was granted. …the Court of Appeal said the power to extend time prospectively must be exercised in accordance with the overriding objective which means a valid reason must be advanced in the application; no reason was advanced in this case – the delay was due to the solicitor’s incompetence and the extension should not have been granted.”

In Collier v Williams [87] the Court of Appeal said

“When deciding whether to grant an extension of time under CPR 7.6(2), the court is required to consider how good a reason there was for the failure to serve in time (assuming that the application is dealt with after the end of the 4 months period): the stronger the reason, the more likely the court will be to extend time; and the weaker the reason, the less likely. This involves making a judgment about the reason why service has not been effected within the 4 month period. It is a more subtle exercise than that required under CPR r7.6(3) which provides that unless all reasonable steps have been taken, the court cannot extend time.”

The Defendants also rely on the White Book note 6.37.22 as to the effects of delay where a foreign defendant is to be served and the permission of the court is required.

I have already set out a chronology in paragraph 4 above. However, it is necessary for me to examine the period between the issue of the Claim form on 24 November 2011 and the hearing before Master Fontaine on 9 May 2012 in more detail. The Appendix to this judgment contains a chronology between those dates as it appeared on the witness statement and correspondence between the parties at the outset of the hearing. After hearing certain submissions from both sides, the Claimants thought it expedient to adduce more evidence and there is a fifth witness statement Mr Levy, the Claimants’ Solicitor, dated 3 December 2013.

Some preliminary points made by the Claimants can be disposed of quickly in favour of the Defendants. These are:

I therefore consider what the Court of Appeal in Collier v Williams [131] said was the “critical enquiry that the court must undertake in these cases.” This is “the strength or the weakness of the reason for the failure to serve is not one of a number of factors of roughly equal importance to be weighed in the balance. The exercise of going through the checklist of factors set out in CPR rule 1.1(2) will not be necessary. If, as in the present case, there is no reason to justify the failure to serve the claim form in time, it should normally not be necessary to go further.”

On the evidence before the court on the morning of 3 December 2013 as set out in the Appendix, the Defendants submitted that there was no good reason for the delay from issue of the claim form until the date the application was made on 23 April 2012. It is to be noted that initially the application was merely to serve out of the jurisdiction. The extension of time was requested in Mr Levy’s second witness statement dated 3 May 2012 for reasons to which I shall turn in a moment. The Defendant said that the period after the issue of the claim form was used up with correspondence that could have been sent prior to November 2011. Having cited the Defendants’ address on the claim form as being in Mumbai, the Claimants should have made the application to serve out much more expeditiously. Further, Tata Limited’s letter of 22 November 2011, the Defendants’ fax of 24 January 2012 and their further fax of 22 February 2012 made it crystal clear that an application would have to be made to serve the Defendants in India. There was no good reason for the Claimants’ Solicitors to have waited until the Defendants’ Solicitors application dated 18 April 2012.

However Mr Levy’s fifth witness statement of 3 December 2013 gives substantially more background to the case. I shall summarise some of the key points:

Having reviewed all the evidence and taking into account the detail now provided in Mr Levy’s fifth witness statement I have no doubt but that the application by the Defendants to set aside the extension of time granted by Master Fontaine should fail. Following the principles in Collier v Williams [131], I determine and evaluate that there were good reasons to justify the failure to serve the claim form in time. The Claimants’ Solicitors were anything but inactive. It is true that Tata and subsequently the Defendants said that the Defendants must be served in Mumbai. However at that stage it appeared (not unreasonably) to the Claimants’ Solicitors that there was a real possibility of effecting good service in England. Because of the complexity of the case and the chronology prior to the issue of the protective claim form, the Claimants did not secure ATE insurance (so as to protect them against any adverse costs order made in favour of Defendants) until after 14 March 2012. Finally, they did not ascertain that there were immense problems in serving process in India until Senior Master Whitaker told them of his experience, this being end April/early May 2012. This led to Mr Levy attending the foreign process section on 2 May 2012 at the Royal Courts of Justice in London, where he was told that it was taking “an inconsistent eight months” for the Indian Central Authority to serve proceedings on its nationals after receiving a request to do so from London. In my judgment the Claimants cannot be criticised for failing to have this information prior to that date, in all the circumstances of this case.

The relevant rule is CPR 6.37(3) which provides:

“The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.”

The leading authority is Spiliada Maritime Corporation v Cansulex Limited [1987] 1A.C. 460. The Claimants concede that the “natural forum” ie. “that with which the action had the most real and substantial connection” is India. In those circumstances the court “will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this enquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the Plaintiff will not obtain justice in the foreign jurisdiction…on this enquiry the burden of proof shifts to the Plaintiff.”

I should cite a further passage from Lord Goff’s speech in Spiliada. This is at page 480H-481E. He said:

“A second, and more fundamental, point of distinction…is that in the Order 11 cases the plaintiff is seeking to persuade the court to exercise its discretionary power to permit service on the defendant outside the jurisdiction. Statutory authority has specified the particular circumstances in which that power may be exercised, but leaves it to the court to decide whether to exercise its discretionary power in a particular case, while providing that leave shall not be granted "unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction" (see R.S.C., Ord. 11, r.4(2)).

Third, it is at this point that special regard must be had for the fact stressed by Lord Diplock in the Amin Rasheed case… the jurisdiction exercised under Order 11 may be "exorbitant". This has long been the law. In Société Generale de Paris v. Dreyfus Brothers (1885) 29 Ch.D. 239, 292-243, Pearson J. said:

“It becomes a very serious question .... whether this court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and I for one say, most distinctly, that I think this court ought to be exceedingly careful before it allows a writ to be served out of the jurisdiction.”

That statement was subsequently approved on many occasions…the effect is not merely that the burden of proof is on the Plaintiff to persuade the court that England is the appropriate forum for the trial of the action, but that he has to show that this is clearly so. In other words, the burden is, quite simply, the obverse of that applicable where a stay is sought of proceedings started in this country as of right.”

Mr Block QC for the Defendants draws my attention to certain other passages in the Spiliada case. I set these out and take them into account:

Further the Defendants draw my attention to the statement of Mr Goel, the Executive Director – Finance of the Defendants who sets out the horror of the events in November 2008 and that the staff have been recognised both in India and abroad as heroes in the light of the many extraordinary acts of bravery when assisting in the evacuation of guests. He says:

“the English courts would need to hear the evidence of a significant number of the Defendant’s staff involved as well as the guests who were in the hotel during the attack. Very few of the staff are mother tongue English speakers. The majority of the guests in the hotel on the night were also Indian Nationals. Therefore the principal witnesses are located in India.”

Mr Goel says:

“there would be significant logistical and financial implications in arranging for them to give evidence in the context of proceedings before the courts of England and Wales. In terms of the hotel staff, it would also have implications for the running of the hotel.”

He makes two further points of note:

“a.

The English courts would need to hear evidence in relation to the acts of the Indian Government Officials and representatives from each of these agencies. Any issues as to the adequacy of the response of these bodies are highly sensitive and personal to the Indian State and should be considered in the Indian Courts.

b.

The events of 26 November 2008 – 29 November 2008 affected many individuals at IHCL on a personal level. I mean no disrespect to the English Courts when I say that the idea that their conduct should be reviewed by a foreign court who cannot have a full sense of the local circumstances is disturbing.”

I heard evidence from Indian lawyers. These were Mr Kachwaha for the Claimants and Mr Kapadia for the Defendants. Mr Kachwaha’s report is dated 16 August 2013. Mr Kapadia’s is dated 3 August 2013. Mr Kachawa is a partner in a law firm in New Delhi and has little experience in relation to the Bombay High Court. He essentially based his opinion on documents and statistics in the public domain, though he had had discussions with lawyers from his firm’s Mumbai office who had confirmed his conclusions. Mr Kapadia has been an advocate in the Bombay High Court since 1966 and a Senior Advocate (similar to Queen’s Counsel) since 1986. He practises in civil commercial litigation and has considerable experience in the practice and procedures of the High Court in Bombay. He has been President of the Bombay Bar Association for the past 4 years and was its Vice President for 6 years before that.

The applicable law, whether the case is tried in England or in India will be Indian law. The Indian and English law contain similar rules on substantive law of negligence. Nevertheless the Defendants make the following points:

Breach of duty would have to be tested against local standards. As Mr Kapadia said “the standard of care to be expected from a Defendant depends on a consideration by the court of the standard prevailing in the area in which the Tort is alleged. An assessment of the appropriate standard depends on an assessment by the judge of the local standards reasonably to be expected. This assessment may in part turn on evidence, but will also turn on the judge’s knowledge, understanding and experience of the place in which the Tort is alleged to have occurred.”

There is not so much personal injury litigation brought in the Mumbai High Court. The gist of the expert evidence was that English law is more developed in the Tort of negligence. The present case requires a court to scrutinise the duty of an occupier to visitors injured by acts of war/terrorism perpetrated by third parties.

I must consider on the one hand the practicalities of a trial in India for the Claimants and the Claimants’ witnesses and on the other the practicalities for the Defendants and the Defendants witnesses.

As far as the First Claimant is concerned, he is now paraplegic and suffers from ongoing problems managing his bowels and bladder. It would be extremely difficult for him to travel to and stay in India, apart from the obvious psychological difficulties in returning to Mumbai. The last point also is of relevance for the Second Claimant. If the claim was heard in England, both could attend a trial with relatively little difficulty. They both attended the three day hearing of the present application.

As to the Defendants’ witnesses, it is correct that the majority of them are likely to be Indian residents. The Defendants submit that many will have no passports and would require visas to come to England. The witness evidence served by the Defendants shows that travel to England for trial would be onerous for many of them. The Defendants do not know how many witnesses they would wish to call. However, they suggested, upon questioning from me, perhaps 10 to 20 staff with evidence from other hotels, local police and security services in addition. I accept that the Defendants may wish some central witnesses to give evidence live in England. To a substantial extent, a number of witnesses could give evidence by video link (there is approximately a six hour time difference I am told). Also (a) some evidence of witnesses might be given on commission (b) there is a real possibility that evidence as to what happened during the attack may not be contested. It has already been exhaustively investigated in the criminal trial of the attacker who was captured and in a (non adversarial) enquiry carried out by the State. If a trial took place in India Mr Kachwaha’s evidence was as follows:

“6.2

Consequent upon an amendment to the CPC in 2002, in every case examination in chief of a witness shall be on Affidavit. Cross-examination and re-examination of the witness (if any) can be by the Court or by a Commissioner appointed by it. In most matters (especially where substantial oral evidence is involved) the cross-examination and re-examination is through a Commissioner.”

The Defendants submit that it would be essential for a judge to have a site visit to the hotel. Although this would be more costly for an English judge, I see no reason why an English judge should not make a site visit to the Taj Mahal Palace.

I now turn to a major contention between the parties, namely delay in the Bombay High Court. I shall subsequently consider the further effect of appeals and the possible effect of expedition. The first matter is an estimation of the time it will take for a first instance (what in Mumbai is called ‘original jurisdiction’) case would take to come to trial, absent expedition.

I was told by Mr Block QC, in his final submission, that the Defendants undertake to cooperate to move proceedings along as quickly as possible if the case takes place in Mumbai. For example they would support expedition. Whilst no doubt a worthy and sincere expression, I am not persuaded that this would have a significant effect on the timetable of a case in Mumbai.

It was not disputed that until recently the situation illustrated in the Indian statistics applied to the Bombay High Court. Indeed the Bombay High Court historically has been in about the third worst position so far as delay in the Indian courts is concerned. In a recent case in the Supreme Court of India Suo Motu Contempt Petition no. 312 of 2013 in Civil Appeal no. 1398 of 2005 decided on 22 August 2013 the Judge said this:

“18.

In the present era, the legal profession, once known as a noble profession, has been converted into a commercial undertaking. Litigation has become so expensive that it has gone beyond the reach and means of a poor man. For a longtime, the people of the nation have been convinced that a case would not culminate during the life time of the litigant and is beyond the ability of astrologer to anticipate his fate…. Any order passed by the Trial Court on the application of substitution of legal representative(s) is generally challenged time and again right up to this Court with the proceedings in the Courts below remaining stayed.”

(Although only one case and therefore possibly not representative, it appears that the civil appeal was lodged in 2005, and decided in the Supreme Court in 2013, a delay of 8 years. However it would not be right to draw much, if anything, from this.)

The total Bombay High Court pendency figures civil and criminal had risen from 325,784 on 1 January 2005 to 372,807 on 30 September 2012.

Mr Kachwaha estimated the case would take 15 years to reach a first instance trial in the Bombay High Court. This was substantially based on a document entitled “National Mission for Delivery of Justice and Legal Reform” citing a resolution of 25 October 2009 in which there was a commitment “to reduce the pendency of cases from 15 years to 3 years”. Mr Kapadia did not give a figure for reaching trial on a historical basis. It appears to me that the estimate of 15 years was a reasonable one given that Bombay pendency figures were as bad as, if not worse than, the majority of courts in India. Nevertheless Mr Kapadia relied upon a reform in the Bombay High Court which began in September 2012, and on expedition.

There was evidence from Mr Kachwaha that reforms in the past in Indian courts have achieved little in terms of reducing delays. That said, I have to evaluate the evidence in relation to the specific reform upon which Mr Kapadia relied. There is a “statement showing the number of matters transferred to Bombay City Civil Court till date”. This is signed by a Master and Assistant Prothonotary on 8 July 2013. It shows that over 36,000 matters were transferred to the Bombay City Civil Court till 6 July 2013. This was pursuant to a government notification dated 28 August 2012, read with a note dated 7 September 2012. It appears that possibly (and this is not 100% certain) transfer started some time after September 2012. The matters remaining with the Bombay High Court as at 6 July 2013 numbered 4,676. They have not been transferred because they were of a value of more than 1 crore (approximately £100,000 as at today’s exchange rate) and intellectual property matters. Mr Kapadia said that the same number of judges are dealing with original jurisdiction for civil trials. This at present is two judges. It has been two judges for some time. They also have other work as well as original jurisdiction civil trials. Mr Kapadia’s evidence was that because of this reform an original jurisdiction trial would take place within four years without expedition.

To what extent am I confident that the estimate of 15 years will drop significantly and/or will drop to Mr Kapadia’s figure of 4 years? The Defendants’ submission was that, given that the workload of this aspect of the two judges’ case allocation has fallen by somewhere between 80 – 90% of the figure as at September 2013, this demonstrates that a case will get on much more quickly now. Unfortunately there were no figures against which to compare the number of outstanding civil trials on an historical basis. The evidence only gave the total number of cases (which in recent years has always been more than 300,000). There is therefore no point of reference to say whether the civil trials figures were, prior to September 2012, getting better or worse, or were stable, in terms of their backlog. On the figures alone it is impossible to say with any confidence what effect the transfers will have. Of course, all things being equal, cases will be heard more quickly than they otherwise would have been. The problem is that I do not know, specifically in relation to civil trials, what the pre-reform trends were showing. It is certainly possible that the transfer will have only a marginal effect on waiting times or that they will merely ensure that they get no worse.

I therefore consider whether there is any other useful evidence, whether statistical or anecdotal from Mr Kapadia, which can persuade the court that the 15 year estimate of the pre-reform position will be significantly affected. There were no figures put before the court to show if this had happened to any civil trials in the last 12 months. There is no statistical evidence of how many civil trials from any particular year have reached fruition in 2012 – 2013. There was a document produced which was pored over in some detail. This shows the Bombay High Court judges listed with effect from 11 November 2013. It does not tell us until when it is operative. Mr Block QC suggested to Mr Kachwaha that it would be until Christmas and he accepted this. Whether or not that is the case, it demonstrates that two judges deal with original jurisdiction matters (inter alia). One judge (number 7) deals with suits to 2010; another judge, judge number 9, deals with suits issued in or after 2011. Mr Kachwaha did not accept that trials were taking place. Mr Kapadia said that they were. I am far from convinced that I can draw much from this document. Even if some trials are taking place before judge number 9 in respect of suits issued in or after 2011, there are no numbers and they may well be ones which have been expedited. The position is extremely unclear.

I have given only an overview of what was a lengthy examination of the statistics and documentation. Nevertheless, although it is a possibility that the reforms will have a significant effect on the waiting times for an original jurisdiction civil trial, I am far from convinced this is the case. I cannot find on the balance of probabilities that this will happen. I asked Mr Kapadia at the end of his evidence whether there was any other information whether anecdotal or statistical to support his estimate of four years or whether it was just his “gut” feeling. Essentially he accepted it was the latter. Mr Block QC said that he is an experienced advocate in the High Court and that this is his professional opinion. Nevertheless, on careful analysis, it is not founded on any basis which I find reliable.

In summary, I conclude that the probabilities are that the estimate of 15 years to reach a first instance civil trial in the Bombay High Court remains still the probable best estimate.

There was mention by Mr Kapadia of an increased number of judges. So far this has achieved a net increase of one judge, due to other judges retiring. He mentioned that there was an expectation that 11 new judges would be appointed. However, there was no proper evidence of this. Nor was there any evidence that any new judicial manpower would be allocated to the original side jurisdiction. I therefore cannot rely upon any increase in the number of judges as a basis for confidently predicting a reduction in waiting times.

I now turn to the question as to whether this case would be expedited in the High Court in Bombay, such that the first instance trial would be heard earlier than normal. Mr Kachwaha’s evidence was that almost every Plaintiff would at some stage or other try to expedite proceedings, but in the vast majority of cases such applications are not successful. He said that he would not expect any unusual public sympathy for the Plaintiffs to the extent that the court would give preference to their case over other litigants in the queue. He said that there are many hard luck cases stuck in the courts of India and the judge has to deal with them with an even hand. In the joint statement at paragraph 3 it says “Mr Kapadia says that the litigation could be over in a period of four years, principally because of the significant possibility of expedition of the case.” He was taken to task by Mr Havers QC because his oral evidence was that his estimate of four years was absent any expedition. Eventually he said that this was an error in the joint statement. I do not pause long over this point since I have already made my findings on delay in the Bombay High Court absent expedition. However, it is important that I focus on words “significant possibility of expedition”. This compared with his report in which he said “I have little doubt that an application for expedition by the Claimants would have been successful.” I have to say that it is a little troubling that the joint statement did use different words which significantly reduce the prospects of expedition. In any event, Mr Kapadia’s oral evidence was that he was confident that there would be expedition. Expedition is granted based on (i) the age of a plaintiff (this is not relevant here because by age it means if somebody is over 60, which neither Claimant is); (ii) the importance of the case. As to this latter fact, Mr Kapadia said that the attacks in November 2008 were completely exceptional and the Indian courts would be anxious not to have cases arising from these events delayed. He points to the disposal of the criminal process which was very complex but dealt with very expeditiously. He added that the court would be concerned with this case as to whether a hotel can be held liable for such terrorist attacks.

I am not persuaded that expedition is more than a possibility. I do not find it to be probable, much less nearly certain. Given that there has been an enquiry (non adversarial) and a criminal trial of the one terrorist who was captured, I am not persuaded that the Indian courts would regard this case as being of such importance as to require expedition. Mr Kapadia had stated in his report “it is quite well known that in the Bombay High Court several cases are expedited. I can give you details of one such case viz. Appeal number 493 of 2012 in notice of motion number 2651 of 2004.” Mr Kachwaha investigated this case. He was not able to locate the order expediting the hearing. However, he did locate the judgment in the suit which led to the appeal. It was filed in 1994. Ten years later, in 2004, the Defendant took out an application seeking rejection of the plaint. It took seven years for the application to be disposed of and the same was allowed in 2011. Thus from issue to disposal of application was 14 years. Mr Kapadia could shed no light on this. He had not checked the matter himself. In the absence of any other examples of expedition, there is no persuasive material to support Mr Kapadia’s opinion.

In short my finding is that the probabilities are that the case will take some 15 years in the Indian High Court and that, although expedition is a possibility, it is unlikely.

I turn briefly to consider the appeals. Both Indian law experts agreed that a first appeal was very likely. Mr Kachwaha estimated that this would take 8 years. Mr Kapadia estimated 2 years. In the joint report he said “if the matter is expedited, I would opine that the appeal process in the Bombay High Court would take about two years.” Later (para 4.2.3) he said “Mr Kapadia feels that the appeal process should take about two years. However, if the same is expedited it could be done as early as possible.” He said that the first statement was in error. An appeal should take about two years but could take much less if expedited. I appreciate that Mr Kapadia has much more experience of the Bombay High Court than Mr Kachwaha. Nevertheless he gave no proper evidential basis for his opinion. Mr Kachwaha gave some statistics from 1985 for the High Court in India as a whole. These statistics were set out in 124^th Law Commission report. They showed that on average an appeal would take four years. From this he extrapolated that because the pendency in the High Court of Bombay had jumped over 2½ times since 1985, the pendency in the first appeal to a Division Bench of the High Court of Bombay would be around 10 years. This in itself is not very persuasive evidence. However he also attached a Supreme Court judgment in the case of Perumon Bhagvathy Devaswom, Perinadu Village v Bhargavi Amma (Dead) [2008] 8SCC 321. This was an appeal from a decision in the State of Kerala. Kerala statistics are generally not as bad as those in Mumbai. At paragraph 16 the Supreme Court Judge said:

“In contrast, when an appeal is pending in a High Court, dates of hearing are not fixed periodically. Once the appeal is admitted, it virtually goes into storage and is listed before the court only when it is ripe for hearing or when some application seeking an interim direction is filed. It is common for appeals pending in High Courts not to be listed at all for several years. (In some courts where there is a huge pendency, the non-hearing period may be as much as 10 years or even more)…. The High Courts are overloaded with appeals and the litigant is in no way responsible for non- listing for several years.”

Unfortunately again I did not have hard statistics as to any cases which had been heard in the Bombay High Court and how long they had taken to reach the first appeal stage. Nor was there any good anecdotal evidence. Again my judgment is that there is no more than a possibility of expedition. Doing the best I can, I think it unlikely that an appeal would be heard in less than five to six years.

Finally there is the possibility of an appeal to the Supreme Court. The experts were agreed that only about 3% of cases are admitted. Although there was a little dispute as to the time to reach the Supreme Court, I am not going to examine the evidence in detail since Mr Kapadia suggested about three years and Mr Kachwaha four years. Mr Havers QC said that if Mr Kapadia was right about the importance of the case then perhaps there was more than a 3% chance that the case would reach the Supreme Court. However since I have determined that it is unlikely that Mr Kapadia is right about the importance of the case in the Indian legal system, I regard the prospects of an appeal to the Supreme Court as no more than 3%.

In summary, my estimation is that the time this case would take to reach the probable end stage in India is some 20 years ie. about 15 years in High Court plus 5 years on first appeal. There is the possibility of an appeal to the Supreme Court delaying the claim for another 3 – 4 years and of interlocutory appeals from the original jurisdiction adding to that total period. There is also the possibility that reform will reduce the time span. Overall, I remain with the bracket of 15 to 20 years.

Mr Havers QC estimation of the likely procedure in England is that there would be a split trial within 2 to 3 years. The court would then have power, if the Claimants succeeded, to award substantial interim payments pending the hearing of (or agreement in respect of) quantum issues.

The First Claimant has been grievously injured. Whether or not that is the Defendants’ responsibility has yet to be determined. It is conceded that he has an arguable case that it is the Defendants’ responsibility. For reasons which I have dealt with earlier in this judgment, there has already been the expiration of five years since the terrible occurrences in November 2008. The claims in England give the prospect of at least the interim payment for damages and (in any event) resolution of the liability issue in 2 to 3 years compared with another 15 to 20 years in India. This is a very significant factor in my judgment. It is particularly so given:

I echo the words of Mr Justice Sheen in The “Vishva Ajay” [1989] Vol.2 Lloyds Law Report 558 at 560 where he said:

“There is a substantial body of evidence that if this case were to proceed in the High Court at Bombay the trial would be delayed for many years. …many actions do not reach trial in less than ten years and it would be wholly exceptional for an action to come on for trial in less than six years. Delay of this magnitude seems to me to be a denial of justice. It is in the interests of justice that actions should come to trial at a time when the witnesses can reasonably be expected to have some recollection of the events in question…”

Finally I turn to the issue of funding. There are three aspects to funding:

In this case only the funding of the claim to judgment is of any real significance. This is because:

I therefore consider funding to judgment. The Claimants assert that they cannot fund this case in India. The Indian experts agree that public funding, conditional and contingency fee arrangements are absent in India and there is no funding available for the costs of experts in India. In England the Claimants have the benefit of conditional fee agreements and after the event insurance, all entered into before the 1 April 2013. This is a significant benefit to any Claimant. The Claimants will be able therefore to litigate their claims in England.

There is no doubt that, in order to run the litigation properly, the Claimants need experienced lawyers and reliance on expert evidence, not just on quantum but also on liability. It would be impossible for them to litigate without expert evidence and almost impossible for them to litigate without experienced lawyers.

The evidence tends to show that trial costs of litigating in India would be in the region of £200,000 - £300,000. Given the number of witnesses, it is perhaps more likely that the top end of that bracket would be applicable. In addition, if the Claimants succeeded, there would almost certainly be an appeal which would require further costs. Also there would be the Claimants’ costs of travel/accommodation in India.

There was little evidence of the Claimants means. Mr Havers QC said that this point had not been raised in the Defendants’ witness evidence. It would have been more helpful to the court if there had been proper evidence of income, capital and expenditure of each Claimant. However I have to deal with the evidence which is before me. This is:

Despite the fact that there is some force in the Defendants’ criticism that the Claimants should have set out more detail as to why they cannot finance a claim in India, and taking full account of the fact that the burden is on the Claimants, I do accept that they will not be able to finance the claims in India. I also regard it as self evident, in the absence of evidence to the contrary, that lawyers and experts in India will, as is normally the case, require funding as proceedings continue. There is no evidence that they would await the outcome of any decision. Indeed I regard this to be extremely unlikely given the approximately 15-20 year delay to which I have referred. Nor is there anything to support the possibility of any other Third Party funding of Indian proceedings, a suggestion which I regard as wholly speculative.

Against that factual backdrop I now consider the relevance of the funding issue on the authorities. I accept that funding is only one factor in the decision making process. (See Roneleigh Limited v MII Exports Inc [1989] 1 WLR 619 at 624H). Further, I must take account of the following guidance given by the House of Lords:

I have reviewed the factors which I consider to be relevant to my decision. I have made findings of fact and referred to the leading authorities. I remind myself of the caution which the court must exercise having regard to Lord Goff’s speech in Spiliada at pages 480-481 and particularly that the burden of proof rests on the Claimants to persuade the court that England is the appropriate forum for the trial of the action and they have to show that this is clearly so.

I have come to the conclusion that there are, in this case, circumstances by reason of which justice requires that a stay should not be granted. I am persuaded that it is clearly the case that England is the appropriate forum for the trial of this action. I have had regard to the interests of all the parties and the ends of justice. I have taken into account the fact that there are factors in favour of a trial in India, including that Indian law is the applicable law, that the breach of duty has to be tested against local standards in India and the fact that there will be certain evidential difficulties for the Defendants if the case proceeds in England. I have noted and taken account of the fact that the Defendants have sought to smooth the path of the Claimants bringing proceedings in India by (i) stating that they will not raise any limitation defence in any proceedings brought in India, (ii) offering the undertaking to pay the Claimants’ reasonable costs if they succeed in India and (iii) expressing a willingness to cooperate in trying to move the proceedings in India along as quickly as possible. Finally I have taken into account the matters in Mr Goel’s statement. Nevertheless, in the balancing exercise I come down firmly in favour of the Claimants because, in my judgment, the Claimants have clearly demonstrated and proved that granting a stay in English proceedings and requiring proceedings to be commenced in India would amount to a denial of justice. If proceedings are commenced in India then the delay which I have found would result cannot possibly be said to be proper access to justice. This factor alone I regard as sufficient. However it is given extra force by my finding that the Claimants will not even get that far because of their inability to litigate in India through lack of funding. In short, the reality is that their claims would come to a juddering halt if the stay was granted. Even if that were not so, they would be pending for some 15 to 20 further years in the Bombay High Court. I exercise my discretion in their favour for those reasons.

In this judgment I have overwhelmingly dealt with the Claimants as if they were one. Many of the considerations apply particularly to the First Claimant because of the seriousness of his injuries relative to those of the Second Claimant. However, neither party at any stage during the hearing sought to persuade me that I should deal with their claims individually as far as any of the issues were concerned.

Finally, both names of the city Mumbai/Bombay were used interchangeably by the parties and by the Indian legal experts. That is the reason why they also both appear in this form in this judgment.