Jamai v Otkkritie International Investment Management

An appellate court should respect a trial judge’s findings of primary fact, particularly findings based on witness credibility, and should intervene only where the judge was wrong. That restraint does not prevent close scrutiny on a permission application. Permission may be granted where there are reasonable grounds to believe that the trial judge was plainly wrong. It should be refused where the proposed appeal identifies no error of law, has no real prospect of success and discloses no other compelling reason for a hearing.

After a 46-day Commercial Court trial, Briggs LJ found that Mr Jemai had dishonestly participated in a securities fraud and had assisted in laundering part of the proceeds. Briggs LJ refused permission to appeal on the papers. Mr Jemai renewed the application orally, challenging factual findings, the assessment of witness evidence, the fairness of the trial and the conclusions about his knowledge and honesty.

The Court of Appeal considered whether the proposed grounds disclosed an arguable error, a real prospect of success or another compelling reason for the appeal to be heard.

Lady Justice Gloster refused permission to appeal and dismissed the renewed application.

1. Appellate restraint. The court accepted that an appellate court should not interfere with conclusions on primary facts unless satisfied that the trial judge was wrong. Particular caution is required where the findings depend on a detailed assessment of witness credibility. The principles stated in Henderson v Foxworth Investments Limited [2014] 1 WLR 2600 and Biogen Inc v Medeva PLC 1997 RPC 1 governed the approach.
2. Permission on factual grounds. The restraint is not absolute. On a permission application the court must examine the judgment closely and may grant permission where there are reasonable grounds to believe that the judge was plainly wrong. Here, the Commercial Court had considered the evidence in meticulous detail, including Mr Jemai’s knowledge, honesty, junior role and the relatively small amount he received. The proposed challenges were no more than attempts to reopen factual and credibility evaluations.
3. Fair trial. Limited funds, less extensive representation, language difficulties, illness and the pressures of a lengthy trial did not establish an unfair trial on these facts. Mr Jemai had been represented throughout, had withdrawn an earlier suggestion of unfairness, and identified no material failure by the trial judge to make appropriate allowance for his difficulties.
4. Outcome. No error of law was identified. The proposed appeal had no real prospect of success and there was no other compelling reason for it to be heard. Permission was therefore refused.

• Court of Appeal (Civil Division) Refused permission to appeal on the renewed oral application and dismissed it.
• High Court, Queen’s Bench Division, Commercial Court Following the trial, Briggs LJ found against Mr Jemai. Briggs LJ subsequently refused permission to appeal on the papers.