Skip to main content

Legal Capsule by Veyrah Law

CONSIDERING LITIGATION IN INDIA | 
PART IV – COUNSELS WORK WITH FACTS!

This article is in continuation of the earlier articles that discuss various aspects one must bear in mind while seeking to litigate before courts in India. As outlined in the earlier article, it is imperative for a business to anticipate a dispute well in advance and plan the best approach for it. That said; the facts of a dispute are pivotal to formulate any kind of legal strategy. But, facts are like a double-edged sword, which can swing either way, i.e. it can either make or break your case, depending on whether the facts are favorable or unfavorable. Therefore, a favorable fact pattern supported with relevant documentary evidence can enhance the chances of securing the desired relief from a litigation process. It places the counsels in a position of strength to effectively thwart any attempts by opposing counsel to dilute a case. However, challenges arise where one has weak or unfavorable facts and little or no proof to support the merits of their claim. In such situations, the importance of engaging with advisors early in the day cannot be stressed enough. Counsels and advisors having the requisite expertise in specialized commercial disputes can aid in crafting an approach that could help in strengthening the merits of the case.
There are certain guidelines that one needs to understand while engaging with counsels for a potential dispute scenario. As always, these are not exhaustive guidelines but indicative in nature.
Attorney-client privilege
For any business approaching a counsel, it is important to understand the concept of an attorney-client privilege. An attorney is under a moral obligation to maintain their client’s confidentiality. Under no circumstances can an attorney disclose any communication or information to any third person without the consent of their client. At first, a client may be apprehensive to share accurate facts of the anticipated dispute. But the client must understand the rationale behind disclosing all facts to their counsel. Any dispute resolution would involve the application of the law to the facts of the client’s case. Therefore, it is important to cultivate a strong attorney-client relationship based on trust, that will allow a client to disclose all details honestly. Counsels can formulate the most effective future course of action once they are equipped with all facts.
Full and fair disclosure of facts
Sometimes, assuming that it would make the process of dispute resolution smoother and hassle free, a client may disclose only those facts to their counsel which they think are of material importance. However, in the nascent stage of the dispute, it is almost impossible to ascertain as to what information could be important at which juncture of the dispute. Therefore, a client must fully and fairly disclose all facts to their counsel, irrespective of whether they consider it material or immaterial.
Plan of action based on facts
Approaching advisors early in the day will enable them to plan a long-term strategy to achieve a favorable settlement. They could also formulate a short-term strategy to extract valuable admissions from the other side in the pre-litigation stage. This is useful especially in the absence of strong or favorable facts.
Controlling the fact pattern
Usually, before a client approaches a counsel to seek advice, the parties have already exchanged various statements by emails, written communications, SMS, WhatsApp etc. Each of these can become valuable inputs in building a strong case in a future litigation. Commercial litigation essentially revolves around the documentary evidence that can be brought to the table and of course the skill of the counsel involved. But the best of counsels cannot undo poor paperwork or explicit documentary evidence that weakens a client’s case. In this context, one must bear in mind that all forms of electronic communication are also a form of evidence that can be used in support of a case. Hence, foreseeing a dispute well in advance will allow a client to calibrate their responses, in consultation with counsel, while communicating with the opponent. The valuable submissions made on record by the unsuspecting opponent could become essential facts / evidence in the dispute, placing the other side at a significant disadvantage. It goes without saying that involving advisors early in the day will ensure better control over the communication being exchanged and prevent the creation of an unnecessary trail that can be counterproductive in a litigation.
Conclusion
The litigation process in India can be cumbersome, causing a great deal of hardship to parties involved. Therefore, to the extent possible, it is always preferable to settle matters outside of court. The set of facts already in existence or thereafter strategically fashioned through exchange of communication, could weaken or strengthen a client’s position. It will also determine a client’s position to negotiate a settlement. If the facts are in the client’s favor, then the counsel has a better bargaining position over the opponent. The development of facts also enables the counsel to decide the forum before which proceedings may be initiated to secure the best relief for the client. Given the overlapping nature of legislations in India, a client may have the option to initiate proceedings before multiple forums. However, some forums may have a distinct advantage over others, depending on the facts of the dispute. In our next article, we will try and explain how the forum for a litigation is usually chosen, based on facts.
Anshu Bhanot | Of Counsel, Veyrah Law; Priyanka Zaveri | Associate, Veyrah Law
Views expressed above are for information purposes only and should not be considered as a formal legal opinion or advice on any subject matter therein.

Popular posts from this blog

VC Interview: Shailendra Singh of Sequoia Capital India

In a recent interview to Venture Intelligence, Shailendra Singh discussed some of the firm’s newer investments in the early stage segment including in the online payments space, the progress at a few existing portfolio companies and the active role the firm is playing in helping its portfolio companies scale and succeed in India and globally. Prior to joining the firm in 2006, Singh was a strategy consultant at Bain & Company in New York and before that, an entrepreneur in the digital media industry.

Venture Intelligence: How does Sequoia go about identifying potential early stage investments in India? Is there anything different you are doing today than, say, a couple of years back?

Shailendra Singh: There is a lot more focus on technology investing and early stage investing. In general, as you might remember a few years ago, we were doing primarily growth investing but in the past 18-odd months, we have had a very strong focus on early stage and that’s continuing. In terms of how…

Ambit tops League Table for Transaction Advisors to Private Equity deals in 2019

Ambit Corporate Finance topped theVenture Intelligence League Table for Transaction Advisor to Private Equity Transactions for the year 2019. Ambit advised PE deals worth $2.4 Billion (across 4 qualifying transactions) during the period. Citi ($1.1 Billion across 2 deals) and Avendus ($969 million across 12 deals) took the second and third spot. Edelweiss Financial Services ($758 million across 9 deals) and PwC ($708 million across 15 deals) completed the top five in 2019. 

The Venture Intelligence League Tables, the first such initiative exclusively tracking transactions involving India-based companies, are based on value of PE and M&A transactions advised by Financial and Legal Advisory firms.
Ambit Corporate Finance advised the $1.9 Billion buyout of Pipeline Infrastructure from Reliance Industriesby Brookfield Asset Management and the IFC and I Squared Capital-backedCube Highways' acquisition of Delhi-Agra Toll Road from Reliance Infrastructure (Reliance ADAG). Citi advise…

PE Investments down by 36% in Q1'20

Press Release
Private Equity-Venture Capital (PE-VC) firms invested $5.9 Billion (across 164 deals) during the quarter ended March 2020 - 36% lower than the $9.2 Billion (across 249 transactions) during the same period last year, according to data from Venture Intelligence, a research service focused on private company financials, transactions and their valuations. The Q1'20 investments were also 37% lower compared to the immediate previous quarter (which had witnessed $9.4 Billion being invested across 227 transactions). (Note: These figures include Venture Capital investments, but exclude PE investments in Real Estate).
The latest quarter witnessed 14 PE-VC investments worth $100 million or more, down from the 20 such transactions in the same period last year. The largest PE-VC investment announced during Q1’20 was the $567 million takeover of power generation company RattanIndia Power by Goldman Sachs and Varde Partners. The second largest investment was SoftBank Vision Fund…

Inventus, Sixth Sense, Blume & Norwest win Apex'20 Venture Capital Awards

Inventus Capital Partners, Sixth Sense Ventures, Blume Ventures and Norwest Venture Partners were voted the top Venture Capital investors in India during 2019. The Venture Intelligence “Awards for Private Equity Excellence” (APEX) is dedicated to celebrating the best that the Indian Private Equity & Venture Capital industry has to offer. Other 2019 winners in the VC segment included Axilor Ventures which was votedthe Accelerator of the Year for the second year running, 3one4 Capital (VC Fund Raise of the Year) and Innoven Capital (Venture Debt firm of the Year).
The APEX Awardees are selected based on both Self Nomination by the participating PE-VC firms as well as "crowd sourced" nominations and voting from the Limited Partner, PE-VC and advisory communities. (The main criteria are Exit Track Record, New Fund Raises & Follow-on Funding Rounds for Portfolio Companies).


"It is an honour to be recognised by entrepreneurs and investors as India's No 1 startup a…

PE investments in 2018 crosses $33-B to set new all-time high

Big Ticket investments in consumer apps Swiggy & Byju’s dominates year-end activity, even as investments in Core Sectors slow down
Private Equity (PE) investments in India rose to their highest ever figure of $33.1 billion in 2018 (across 720 transactions), according to data from Venture Intelligence (http://www.ventureintelligence.com), a research service focused on private company financials, transactions and their valuations. While PE investments have already surpassed the previous high - $24.3 Billion across 734 deals in 2017 - in the first nine months of 2018, the mega investments in Consumer Internet & Mobile startups such as Swiggy and Byjus towards the year-end, helped the 2018 total vault by 36% year-on-year. (Note: These figures include Venture Capital investments, but exclude PE investments in Real Estate.) The year witnessed 81 PE investments worth $100 million or more (accounting for 77% of the total investment value during the period), compared to 47 such transac…