Dass v Marchand and others (Trinidad and Tobago)

The Privy Council will ordinarily not interfere with concurrent findings of fact by a trial court and an intermediate appellate court. That practice imposes a super-added constraint beyond ordinary appellate restraint.

Departure is exceptional. An error of law affecting the fact-finding may justify intervention, but criticisms of the assessment of evidence do not become legal errors merely because they are presented in that form. Even under ordinary appellate principles, substantial weight is given to a trial judge’s findings where the judge carefully evaluated the evidence and saw and heard the witnesses.

A mother and her two adult children jointly owned their family home. They conveyed it to the mother’s employer and doctor, Dr Dass, but alleged that he and a lawyer had fraudulently induced them to sign the deed by misrepresenting its nature and the circumstances of the transaction.

Rampersad J accepted their account, set aside the deed for fraudulent misrepresentation or, alternatively, undue influence, and awarded damages subject to assessment. The Court of Appeal of Trinidad and Tobago upheld his findings and orders.

Dr Dass appealed to the Privy Council. His case challenged the trial judge’s assessment of the evidence and sought an exceptional departure from the Board’s practice of respecting concurrent findings of fact by two lower courts.

1. Appeal dismissed. The Board affirmed the decision and orders of Rampersad J.

2. The Board applied its normal practice of not going behind concurrent findings of fact made by a trial judge and upheld by an intermediate appellate court. That practice, reflected in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11, is a super-added constraint beyond the ordinary limits upon appellate review. It recognises both the trial judge’s advantage in seeing and hearing witnesses and the superior ability of local judges to assess customs, attitudes and conditions peculiar to the jurisdiction.

3. Rare exceptions are possible, particularly where an error of law has affected the findings of fact. The appellant’s complaints, however, concerned the trial judge’s assessment of the evidence. Presenting those criticisms as errors of law did not alter their factual character. The case therefore fell squarely within the practice governing concurrent findings.

4. Independently, the appeal would also fail under the ordinary constraints governing appellate review, as considered in Central Bank of Ecuador v Conticorp SA [2015] UKPC 11 and Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21. The trial judgment was thorough and clear. It carefully analysed the oral and documentary evidence, including the respondents’ inconsistencies and the funding agreement relied upon by the appellant.

5. The seriousness of the allegations against two professional men supplied no basis for concluding that the judge had overlooked their improbability. The judge was best placed to evaluate credibility. Nor did the respondents’ alternative contractual case undermine the accepted evidence that no sale agreement at the proposed higher price had been reached. Pleading alternative inconsistent claims was commonplace and did not establish inconsistency in the relevant evidence. There was accordingly no reason to disturb the findings of fraud and undue influence or the consequential orders.

• Privy Council: In Dass v Marchand and others (Trinidad and Tobago) [2021] UKPC 2, the Board dismissed the appeal and affirmed the decision and orders of Rampersad J.
• Court of Appeal of Trinidad and Tobago: On 16 July 2018, Pemberton JA, with whom Mendonca and des Vignes JJA agreed, upheld the High Court’s findings and orders. The court also held that the evidence did not establish the alleged champertous agreement.
• High Court of Justice of Trinidad and Tobago: On 30 October 2012, Rampersad J set aside the deed for fraudulent misrepresentation or, alternatively, undue influence. He awarded damages subject to assessment, ordered repayment of the purchase money and stayed repayment pending that assessment.