Darren Singh v LMCS Ltd

This appeal involves a factual dispute between LMCS Limited (“LMCS”) and Darren Singh (“the appellant”) as to the basis upon which TT$1,500,000.00 was paid by LMCS to the appellant. LMCS alleged that the money had been lent by it to the appellant to be repaid within one year on foot of an oral agreement made in or about May 2012 between Mr Kazim Ali, a director of LMCS, and the appellant. The appellant accepted that LMCS had paid him TT$300,000.00 by a cheque dated 15 July 2012, and two amounts of TT$600,000.00 by two cheques both dated 9 August 2012. However, the appellant denied that LMCS had lent this or any sum to him. Rather he asserted that: (a) he was owed money by Nu Image Shuttle Services Ltd and/or Keith Subiah; (b) LMCS owed money to Nu Image Shuttle Services Ltd and/or Keith Subiah; (c) Nu Image Shuttle Services Ltd and/or Keith Subiah arranged with LMCS for money owed to it by LMCS to be paid instead to the appellant (“the arrangement”); (d) in furtherance of the arrangement between LMCS on the one hand and Nu Image Shuttle Services Limited and/or Keith Subiah on the other, LMCS paid a total of TT$1,500,000.00 to the appellant; (e) accordingly the payments totalling TT$1,500,000.00 which the appellant received from LMCS did not constitute a loan from LMCS but rather constituted a repayment via the good offices of LMCS of monies which Nu Image Shuttle Services Ltd and/or Keith Subiah owed to the appellant.

On 4 December 2017, in proceedings commenced by LMCS, and after a trial, the factual dispute was resolved by Seepersad J (“the judge”) in favour of LMCS. The judge found that the payments by LMCS to the appellant totalling TT$1,500,000.00 had been made by way of a one-year loan. Accordingly, judgment was entered for LMCS for TT$1,500,000.00 plus interest and costs to be calculated on the prescribed basis.

The appellant appealed to the Court of Appeal (Mendonça, Smith and Aboud JJA) which by a judgment delivered on 2 November 2020 by Smith JA, with which Aboud JA agreed, dismissed the appeal and upheld the judge's factual finding that the payments by LMCS to the appellant totalling TT$1,500,000.00 had been made by way of a loan to be repaid within one year. Mendonça JA delivered a dissenting judgment in which he said he would have allowed the appeal and would have dismissed LMCS's claim.

The appellant now appeals to the Board, as of right, seeking to review concurrent findings of fact by the High Court and the Court of Appeal that TT$1,500,000.00 was lent by LMCS to the appellant. The settled practice of the Board is not, save in exceptional cases, to undertake a review by way of second appeal against concurrent findings of fact by the courts below: see Devi v Roy[1946] AC 508.

The Board was not persuaded by pre-reading the appellant's written case, dated 16 January 2024, that the requisite exceptionality had been demonstrated so as to justify a departure from the Board's settled practice. Accordingly, the Board directed that at the outset of the hearing counsel on behalf of the appellant demonstrate the requisite exceptionality by concise oral submissions. The Board having considered those submissions decided that there was nothing at all exceptional about the challenge the appellant was seeking to make to the concurrent findings of fact made in these proceedings. To the contrary, the appellant was inviting the Board to revisit the issues considered by the judge and the Court of Appeal, and to do so in the hope of persuading the Board that those courts had failed properly to evaluate the oral evidence in the light of the pleadings, the witness statements, and the failure of LMCS to document the loan except by endorsing the three cheques with the word “loan”. Accordingly, the Board dismissed the appeal and indicated that it would give reasons later, which it now does.

As explained at para 4 above, the settled practice of the Board is not, save in exceptional cases, to undertake a review by way of second appeal against concurrent findings of fact by the courts below. The Board's practice applies even if there is a dissent by a member of the appellant court: see Devi v Roy at p 521.

In Sancus Financial Holdings Ltd v Holm[2022] UKPC 41, [2022] 1 WLR 5181 the Board explained that there are several reasons for the practice. First, where the practice is applied, the reliability of the trial judge's findings will already have been subjected to careful review by a properly constituted and experienced Court of Appeal. In that way the aspect of access to justice constituted by the availability of an appeal will generally already have been satisfied. Secondly, where two courts, one of them appellate, have agreed upon a finding of fact, it is inherently unlikely that a second appellate court will be well-placed to disagree with both of them with any degree of confidence. Thirdly, the parties are entitled to expect a reasonable degree of finality in litigation, at least where no contentious point of law of wider public importance is engaged. Fourthly, the minute examination of the detailed evidence underlying findings of fact is an expensive and time-consuming process likely to strain the Board's limited resources, if it has to be undertaken with any frequency. Finally, fact finding will often benefit from the deeper understanding which the local courts are likely to have of local custom and culture, by comparison with the Board.

The nature of the circumstances which will justify a departure from the practice were set out by Lord Thankerton in Devi v Roy at p 521 as follows:

“(4) That, in order to obviate the practice, there must be some miscarriage of justice or violation of some principle of law or procedure. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.

(5) That the question of admissibility of evidence is a proposition of law, but it must be such as to affect materially the finding. The question of the value of evidence is not a sufficient reason for departure from the practice.

(6) That the practice is not a cast-iron one, and the foregoing statement as to reasons which will justify departure is illustrative only, and there may occur cases of such an unusual nature as will constrain the Board to depart from the practice.”

The Board stated in Sancus Financial Holdings Ltd v Holm, at para 7, that, whereas Lord Thankerton was careful not to close the doors on categories of exceptionality, “… it is worth bearing in mind the extent of the exceptionality contemplated in para 4 of Lord Thankerton's summary in Devi v Roy, namely that (leaving aside errors of law) there has been such a departure from the rules which permeate judicial procedure as to make what happened not fairly described as judicial procedure at all.”

In Sancus Financial Holdings Ltd v Holm the Board emphasised the consequences of the settled practice. The Board, at para 6, stated:

“Where (as here) the entirety of the issues in the appeal concern concurrent findings of fact, the Board is likely to require the appellant to demonstrate, as a preliminary condition, that there exist exceptional circumstances which justify a departure from the practice, before the Board will proceed with the appeal any further.”

The Board explained at para 8 that “… in a case which is all (or even in substantial part) aimed at disturbing concurrent findings of fact, the requisite exceptionality will need to be demonstrated in clear terms in the appellant's written case and, if the Board is not persuaded by pre-reading it, established at the outset of the hearing by concise oral submissions.”

As indicated at para 5 above, and for the reasons set out below, the Board does not consider that the appellant has demonstrated the requisite exceptionality for the Board to intervene.

The central issue between the parties is and always has been whether LMCS had lent TT$1,500,000.00 to the appellant.

It is appropriate to set out in some further detail the essential factual background together with some aspects of the procedural history. However, in considering whether to decline to interfere with concurrent findings of pure fact the Board is not involved in hearing, in full, the appeal on the merits or in analysing in detail the evidence. The Board's purpose in setting out the factual background is not to embark on a review by way of a second appeal against concurrent findings of fact. Rather, in setting out the factual background, the Board's purpose is to illustrate that in this appeal there are no exceptional circumstances which justify a departure from the settled practice.

LMCS engaged Dacris Associates Limited (of which the appellant is a director)

during the period May 2012 to August 2012 for the purpose of preparing value added tax returns while...