Sancus Financial Holdings Ltd v Chad Holm
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] UKPC 41 |
| Court | Privy Council |
2022 June 29; Nov 10
Privy Council - Practice - Findings of fact - Practice of Board not to review concurrent factual findings of two lower courts save in exceptional circumstances - Board requiring appellant to demonstrate requisite exceptionality as preliminary condition to proceeding with appeal
It is the practice of the Judicial Committee of the Privy Council not, save in exceptional cases, to undertake a review by way of second appeal against concurrent findings of fact by the courts below. 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 custom and culture, by comparison with the Board (post, paras 1–5).
Where the entirety of the issues in an 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 same may go for the review of concurrent findings of fact where they constitute only some of the issues on the appeal, but with the lesser consequence that only those issues will fall foul of the practice, rather than the whole appeal. 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. It is not enough just to assert without giving specific reasons that the case is exceptional, or to describe the alleged miscarriage of justice as gross. Nor will it be enough to say that by raising as a separate ground of appeal a claim that there were serious departures from fair procedure, that will simply lie outside the reach of the practice, if the object of raising that ground is to sustain an attack on concurrent findings of fact. Such a ground may go towards establishing a sufficiently exceptional basis for disapplying the practice, but not for treating it as simply inapplicable. It is just as much a challenge to concurrent findings of fact to ask for them to be retried as it is to ask for them to be reversed (post, paras 6–8).
The following cases are referred to in the judgment of Lord Briggs and Lord Kitchin JJSC:
Airport Authority v Western Air Ltd
Al Sadik v Investcorp Bank BSC
Biogen Inc v Medeva plc [
Central Bank of Ecuador v Conticorp SA
Dass v Marchand (Practice Note)
Devi v Roy [
Fage UK Ltd v Chobani UK Ltd
Ma Wai Fong v Wong Kie Yik
McGraddie v McGraddie
Piglowska v Piglowski [
The following additional case was cited in argument:
Simetra Global Assets Ltd v Ikon Finance Ltd
APPEAL from the Court of Appeal of the Eastern Caribbean Supreme Court
By a claim form issued on 18 January 2017 in the Commercial Division of the Eastern Caribbean Supreme Court, the claimants, Chad Holm and FH Investment (BVI) Ltd, claimed damages as against the defendants, Sancus Financial Holdings Ltd, Carson Wen and Julia Fung, for breach of an oral agreement made between the parties on 26 September 2015.
By a judgment delivered on 19 December 2018 Adderley J, sitting in the High Court of Justice of the Eastern Caribbean Supreme Court, found that an agreement had been reached between the parties and that the defendants were liable in damages for breach of the agreement, and ordered an assessment of quantum to determine the value of the first claimant’s shareholding.
By a judgment dated 30 March 2020 the Court of Appeal of the Eastern Caribbean Supreme Court (Blenman, Webster and Antoine JJA) dismissed the defendants’ appeal, holding, inter alia, that the grounds of appeal were mainly centred on attempts to impugn the judge’s findings of fact based upon his evaluation of the evidence and the inferences drawn and that, having revisited the evidence, the Court of Appeal supported the findings the judge had made.
With leave granted by the Court of Appeal of the Eastern Caribbean Supreme Court (Pereira CJ, Baptiste and Webster JJA) on 16 September 2020 the defendants appealed. The principal issues for the Board were whether the Court of Appeal had erred (i) in rejecting the appeal and upholding the decision that an oral contract had been entered into and broken or whether the Court of Appeal should have overturned the decision and dismissed the claims; alternatively (ii) in refusing to order a retrial.
The facts are stated in the judgment of the Board, post, paras 10–24.
Paul Chaisty KC and Andrew Westwood KC (instructed by
Hefin Rees KC and Oliver Clifton (instructed by
The Board took time for consideration.
10 November 2022. LORD BRIGGS and LORD KITCHIN JJSC (with whom LORD BURROWS, LADY ROSE and LORD LLOYD-JONES JJSC agreed) handed down the following judgment.
Introduction1 This appeal provides an opportunity to affirm and to explain the reasons for and the consequences of the Board’s practice not, save in exceptional cases, to undertake a review by way of second appeal against concurrent findings of fact by the courts below. As will appear, this appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands) consists of challenges to concurrent findings of fact. Although it is an appeal as of right, unless the requisite exceptionality can be established by the appellants, adherence to the Board’s settled practice, described above, therefore means that it should not be entertained at all. This is despite the immense effort dedicated to litigating it by both sides, an effort that included two very long written cases, a bundle of documents running to over 7,000 pages, and a hotly contested application to adduce fresh evidence with an attendant bundle of its own running to more than 1,000 pages.
Concurrent findings of fact and the practice of the Board2 The Board’s practice not to engage with challenges to concurrent findings of fact by the courts below has existed for many years. In Devi v Roy [
“From this review of the decisions of the Board, their Lordships are of opinion that the following propositions may be derived as to the present practice of the Board and the nature of the special circumstances which will justify a departure from the practice:—
“(1) That the practice applies in the case of all the various judicatures whose final tribunal is the Board.
“(2) That it applies to the concurrent findings of fact of two courts, and not to concurrent findings of the judges who compose such courts. Therefore, a dissent by a member of the appellate court does not obviate the practice.
“(3) That a difference in the reasons which bring the judges to the same finding of fact will not obviate the practice.
“(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...
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