Pickle Properties Ltd v Plant (British Virgin Islands)

An appellate challenge based on excessive delay in delivering a fact-sensitive judgment requires careful scrutiny of the trial judge’s findings, reasoning, notes and submissions. The appeal succeeds only where there is a proper basis for a causal link between the delay and an alleged error, such as misremembered evidence or submissions. It is insufficient merely to identify evidence which the judgment did not mention or a case which might have been developed. Concurrent findings of fact will not ordinarily be disturbed absent legal error or circumstances showing that the proceedings were not judicial procedure in a proper sense.

The appellant challenged concurrent first-instance and appellate findings arising from a claim for equitable contribution between co-guarantors. After a two-day trial, Leon J (Ag) delivered judgment almost one year later and upheld the claim, together with an alternative contractual claim. He rejected a claim under section 1 of the Civil Liability (Contribution) Act 1978.

The Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands), in a judgment dated 30 January 2018, upheld the decision and concluded that the delayed judgment was safe and that the appellant had received a fair trial. The central issues before the Board were whether the delay caused injustice sufficient to justify a retrial and whether the findings concerning an undervalue sale and equitable contribution could be disturbed.

Appeal dismissed. Lord Hodge delivered the judgment of the Board.

1. The Board ordinarily does not disturb concurrent findings of pure fact by two lower courts where there is no legal error undermining them. Intervention remains possible in the limited circumstances where what occurred was not judicial procedure in a proper sense. The appellant therefore had to show that the delay made the first-instance judgment unsafe and that the Court of Appeal failed properly to scrutinise it.
2. Where a judgment has been produced after excessive delay, the appellate court must examine the findings of fact and reasons with very great care, including the quality of the judge’s notes of the evidence and submissions. The appellant must identify particular findings or errors which may be attributable to the delay and establish a causal link between the delay and the alleged failing. A general possibility that evidence was overlooked is insufficient. This approach was followed in Boodhoo v Attorney General of Trinidad and Tobago [2004] UKPC 17, Cobham v Frett [2001] 1 WLR 1775 and Tex Services Ltd v Shibani Knitting Co Ltd (in receivership) [2016] UKPC 31.
3. The complaints about the valuation and marketing evidence did not establish any delay-related error. The valuation evidence relied on by the appellant assumed a lengthy marketing period and did not provide a sufficient basis for proving an undervalue in the rapid sale authorised by the Bank. The strands of evidence concerning the marketing process could not support an appellate challenge where no corresponding case had been presented at trial. The Court of Appeal had reviewed the judgment adequately.
4. The Board did not need to analyse the alternative contractual claim in detail because the equitable contribution claim independently supported the outcome. It observed that, if a contractual claim had depended on apparent authority, the law would have required fuller consideration, since an agent’s representation of authority does not ordinarily bind the principal. That issue was immaterial to the result.

The Board would humbly advise Her Majesty that the appeal should be dismissed.

1. Privy Council: By judgment given on 29 March 2021, the Board dismissed the appeal and upheld the decision below. [2021] UKPC 6
2. Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands): In a judgment dated 30 January 2018, the Court upheld the first-instance decision, finding that the delayed judgment was safe and that the appellant had received a fair trial.
3. First instance: Leon J (Ag) upheld the respondent’s equitable contribution claim and alternative contractual claim, and rejected the claim under section 1 of the Civil Liability (Contribution) Act 1978.