Appeals to the Privy Council – another hurdle for appellants
Blake Morgan acted in two decisions this year when the Judicial Committee explained its established practice in appeals against concurrent findings of fact by the courts below. The practice applies only to second (or further) appeals but it should be noted that it applies also in appeals as of right; this means that it is of even greater significance.
The consequences which flow from the practice are of fundamental importance to an appeal.
- An appellant in such cases has a ‘high hurdle to overcome’.
- The practice is a “super-added constraint” over and beyond the reluctance of any appellate court to interfere with findings of primary fact by the trial judge.
- 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 ‘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. In one case, counsel for the appellant was given 30 minutes to argue that a departure from the practice was justified and, as he did not succeed, the appeal was then dismissed without even hearing submissions from the respondent.
In Glory Trading Holding Ltd (Appellant) v Global Skynet International Ltd and another (Respondents) (Anguilla) [2022] UKPC 35, Blake Morgan acted for the respondents instructed by J M Dyer and Co. The respondents were not called upon and the appeal was dismissed.
Lord Hamblen reiterated at paragraph 15 the heavy onus which is on appellants in these cases.
“15. As frequently emphasised, it is the settled practice of the Board not to go behind concurrent findings of fact made by the courts below save in very limited circumstances. Unless there is a legal error undermining those findings, it will generally be necessary to show that there has been some miscarriage of justice or violation of a principle of law or procedure which means that what has occurred is not in a proper sense a judicial procedure – see Devi v Roy [1946] AC 508, 521; Central Bank of Ecuador v Conticorp SA [2015] UKPC 11, paras 4-7; Desir v Alcide [2015] UKPC 24, paras 24-26; Al Sadik v Investcorp Bank BSC [2018] UKPC 15, paras 43-45; Pickle Properties Ltd v Plant [2021] UKPC 6, para 3.”
In Sancus Financial Holdings Ltd and others (Appellants) v Holm and another (Respondents) (British Virgin Islands) [2022] UKPC 41, where Blake Morgan acted for the respondents instructed by Walkers, the respondents were not even called upon and the appeal was dismissed.
The judgment of the Board given by Lord Briggs and Lord Kitchin (with whom Lord Burrows, Lady Rose and Lord Lloyd-Jones agreed) gave definitive guidance on the practice.
1. “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.
Concurrent findings of fact and the practice of the Board
2. 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 [1946] AC 508 Lord Thankerton, giving the judgment of the Board in an appeal from India, conducted a review of the Board’s practice as revealed by copious citations from reported cases going back to 1849. He concluded, at p 521:
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 Board to depart from the practice.
(7) That the Board will always be reluctant to depart from the practice in cases which involve questions of manners, customs or sentiments peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the courts of that country.
(8) That the practice relates to the findings of the courts below, which are generally stated in the order of the court, but may be stated as findings on the issues before the court in the judgments, provided that they are directly related to the final decision of the court.
3. This practice is, as Lord Thankerton said, applicable to all appeals to the Judicial Committee of the Privy Council. It is as applicable to appeals as of right as to appeals that require permission: see per Lord Mance in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11, at para 6. Mr Chaisty KC for the appellants did not suggest the contrary. It has been re-affirmed in numerous cases in recent times: see e.g. The Airport Authority v Western Air Ltd [2020] UKPC 29, at para 26; Al Sadik v Investcorp Bank BSC [2018] UKPC 15, at paras 43-45; Dass v Marchand [2021] UKPC 2; [2021] 1 WLR 1788, at paras 15-17; and Ma v Wong [2022] UKPC 14, at paras 86-90.
4. This practice, which applies only to second (or further) appeals builds on, but is not to be confused with, the equally well-settled practice of all appellate courts in the common law world not lightly to override fact-finding by the trial judge. This is also re-affirmed by a wealth of recent authority, such as Piglowska v Piglowski [1999] 1 WLR 1360, Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, Biogen Inc v Medeva plc [1997] RPC 1, per Lord Hoffmann at p 45 and McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. As Lord Burrows put it in Dass v Marchand at para 16, the practice with which the Board is here concerned is a “super-added constraint” over and beyond the reluctance of any appellate court to interfere with findings of primary fact by the trial judge.
5. There are several reasons for this 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, as Lord Burrows explained in the Dass case, 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 (although of no particular relevance to the present case), 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: see Dass v Marchand at para 16.
6. The consequences of this settled practice call for emphasis. 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 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. This is the meaning of the dictum of the Board in the Al Sadik case, at para 44 that:
The Board’s settled practice is not just to treat the scales as loaded against an appellant in the circumstances described above, but altogether to decline to interfere with concurrent findings of pure fact. This means … that an appellant seeking to mount such an appeal must first persuade the Board that the case comes within that very limited special category which justifies a departure from that practice.
7. Counsel may be tempted to submit that the relevant exceptionality will only be demonstrated when the case has been deployed in full. But that cannot be right. It would mean that, although the practice was not to interfere at all, the appeal would have to be heard, in full, in the usual way with all the concomitant time and expense even if, at the end of the day, the Board decided not to intervene. In this context 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. Although Lord Thankerton was careful not to close the doors on categories of exceptionality, his only concrete example sets a sufficiently high hurdle that its presence ought to be capable of being demonstrated relatively summarily.
8. It follows 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. 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, as did Mr Chaisty in the present case, 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. Of course, such a ground may go towards establishing a sufficiently exceptional basis for disapplying the practice, but not for treating it as simply inapplicable. Finally, it is just as much a challenge to concurrent findings of fact to ask for them to be re-tried as it is to ask for them to be reversed.”
The effect of these decisions cannot be downplayed: appellants have indeed a ‘high hurdle to overcome’ with this “super-added constraint” over and beyond the reluctance of appellate courts to interfere with findings of primary fact.
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