Gabriele Volpi & Anor. v Matteo Volpi

An appellate court may interfere with a trial judge’s primary factual findings only where the decision was plainly wrong, meaning that no reasonable judge could have reached it. The appellate court must consider the substance of the judgment, presume that the whole evidence was considered absent compelling reason, and avoid reweighing evidence or conducting narrow textual analysis.

The presumption of advancement between a father and an independent adult child is a weak factual presumption. It may be weaker where a company supplies the funds. The decisive inquiry is usually the putative donor’s subjective intention, assessed from all direct and circumstantial evidence. A trial judge may evaluate expert opinion alongside the remaining evidence and is not bound to accept it.

Delta Limited, a company controlled by Gabriele Volpi, paid CHF 4 million towards an apartment acquired by his adult son, Matteo Volpi, and a further CHF 2 million associated with works to the property. Gabriele Volpi and Delta claimed repayment on the basis that the payments constituted an interest-free loan. Matteo Volpi maintained that they were a gift.

After a four-day trial, HHJ Jarman QC found on the balance of probabilities that the CHF 6 million was a loan. Matteo Volpi appealed, principally contending that there was no sufficient oral or contemporaneous documentary evidence of an agreed loan and that the judge had misunderstood or mischaracterised the handwriting experts’ evidence.

The central questions were whether the trial judge’s factual conclusion was rationally supportable and how the presumptions governing payments and advancement affected the inquiry into whether the money was intended as a gift.

1. Appeal dismissed unanimously. The trial judge’s finding that the CHF 6 million was an interest-free loan rather than a gift was rationally supportable. It was therefore not plainly wrong.
2. An appellate court may interfere with primary factual findings only where no reasonable judge could have reached the decision. It is insufficient that the appellate court would have decided differently. Unless there is a compelling reason to conclude otherwise, the appellate court assumes that the trial judge considered the whole evidence. It must not reweigh individual strands of evidence or subject the reasons to narrow textual analysis.
3. In the absence of evidence of Swiss law, the court proceeded on the basis that it corresponded materially with English law. Under the ordinary rule stated in Seldon v Davidson [1968] 1 WLR 1083, money received from another is prima facie repayable unless the transferor establishes a gift. The presumption of advancement between a father and an adult, financially independent child is a weak factual presumption. Its force was weakened further because the payments came from Delta rather than directly from the father.
4. The relevant inquiry was the putative donor’s subjective intention, not whether donor and recipient had agreed that the payment was a loan. The donor’s intention will usually be determinative, and no rigid rules govern the evidence admissible to establish it. The contemporaneous loan documents signed by the father, the provenance of the signed loan agreement, the bearer mortgage, the discretionary nature of the family trusts, the absence of relevant disclosed communications and the inherent probabilities provided ample evidence that no gift was intended.
5. A trial judge decides disputed facts and is not bound to accept expert evidence, even where it is uncontroverted. The judge was entitled to consider the limitations of handwriting opinions based only on copied documents and stylistic comparisons, and to evaluate them with all the direct and circumstantial evidence. His conclusion that the final signature on the loan agreement was probably genuine was open to him. The inconclusive position concerning the procura did not displace the conclusion regarding the loan.
6. The court additionally considered that, where a document is produced from reputable custody, the person alleging that a signature is forged bears the burden of proving forgery. Civil Procedure Rules 1998 Part 32.20 supported receipt of a notarial act or instrument as duly authenticated unless the contrary was proved. Whether Matteo Volpi signed the loan agreement was nevertheless secondary because the decisive issue was whether Gabriele Volpi or Delta intended to make a gift.

• Court of Appeal (Civil Division): The court unanimously dismissed the appeal in Gabriele Volpi & Anor. v Matteo Volpi [2022] EWCA Civ 464 and upheld the finding that the CHF 6 million was an interest-free loan.
• High Court of Justice, Business and Property Courts: Following a four-day trial, HHJ Jarman QC found on the balance of probabilities that the payments were a loan rather than a gift. A neutral or report citation for that decision was not stated.