British Virgin Islands: Walkers Succeeds On Privy Council Appeal Concerning Concurrent Findings Of Fact

The Privy Council has handed down judgment on appeal from the British Virgin Islands (the "BVI") in Sancus Financial Holdings Ltd and others (Appellants) v Holm and another (Respondents). This judgment provides important guidance on the Privy Council's practice where appellants seek to challenge concurrent findings of fact made by the trial judge and the Eastern Caribbean Court of Appeal.

At trial in the BVI Commercial Court, the judge accepted the evidence of the Claimants that Mr Chad Holm had entered into an oral contract with the defendants entitling him to a 22% interest in the "Bank of Asia Project", which included the Bank of Asia. Following a breach of that contract, the trial judge held that the claimants were entitled to damages. The defendants appealed to the Court of Appeal.

On appeal, the appellants argued that the trial judge had failed to properly evaluate the evidence at trial and had fallen into error. The Court of Appeal dismissed the appeal. The appellants further appealed to the Privy Council.

At the beginning of the further appeal hearing, the Board indicated that it had reached the preliminary view that the appellants' written case did not disclose an exceptional case. The Board permitted counsel for the appellants thirty minutes in which to demonstrate the exceptional nature of the appeal. Counsel for the appellants submitted that the factual errors made by the trial judge and court of appeal were indeed exceptional and in any case a re-trial was justified by alleged deficiencies in the judicial process. Having risen to consider these submissions the Board returned and held that the appellants had not established that this was an exceptional case. The respondents were not called upon to make submissions and judgment was reserved.

In a detailed judgment, the Board has now set out its reasons refusing to depart from its established practice in relation to concurrent findings, most recently addressed in Kathryn Ma Wai Fong (Appellant) v Wong Kie Yik & 2 others (Respondents) [2022] UKPC 14. The Board held that it will not, save in exceptional cases, undertake a review by way of second appeal against concurrent findings of fact made by the courts below. Before embarking on such a review, the Board must be satisfied that 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.

Going forward, appellants seeking to challenge concurrent findings of fact should expect the Board to require exceptionality to be demonstrated as a preliminary point before the Board will agree to depart from its practice and review finding made by a trial judge and then the Court of Appeal.

The full judgment can be found here.

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