Gabriele Volpi & Anor. v Matteo Volpi

An appellate court may reverse a trial judge’s findings of primary fact only where the decision was plainly wrong, meaning rationally insupportable. It must consider the judgment as a whole, assume that all evidence was considered absent compelling reason, and avoid retrying the case or reassigning weight to individual strands of evidence.

The presumption of advancement from a father to an adult, financially independent child is weak and factual. Its force is further reduced where payment is made by a company controlled by the father. The decisive inquiry is ordinarily whether the putative donor subjectively intended a gift.

A father and a company under his control claimed repayment of CHF 6 million advanced to his adult son for the purchase of, and works to, an apartment in Lugano. The son contended that the money was a gift. Following a four-day trial involving witness and handwriting-expert evidence, HHJ Jarman QC found that the payments constituted an interest-free loan.

The son appealed, challenging the judge’s evaluation of the documentary, witness and expert evidence. The central question was whether the finding of a loan was rationally supportable under the restrictive principles governing appeals against findings of fact.

1. Appeal dismissed. The trial judge’s conclusion that the CHF 6 million was an interest-free loan rather than a gift was rationally supportable. Lewison LJ gave the judgment, with which Males and Snowden LJJ agreed.

2. An appeal court does not decide afresh what conclusion it would have reached. It may interfere with findings of primary fact only where the judge was plainly wrong, meaning that no reasonable judge could have reached the decision. It should assume, absent compelling reason, that the judge considered the whole evidence. A judgment should not be subjected to narrow textual analysis, and the appellate court must not reassign weight among competing strands of evidence.

3. The same caution applies to a trial judge’s evaluation of expert evidence. The judge determines disputed facts and is not bound to accept even uncontroverted expert evidence. The handwriting evidence was inferential, based on copies and stylistic comparison. The judge was entitled to assess it together with the direct and circumstantial evidence.

4. Ordinarily, money received from another is prima facie repayable unless the recipient establishes a gift. The presumption of advancement between a father and an adult, financially independent child is weak and factual. Its force was further weakened because the payments came from a company rather than directly from the father. The relevant inquiry was whether the putative donor subjectively intended to make a gift, not whether donor and recipient had mutually agreed a loan.

5. There was ample contemporaneous and circumstantial evidence that no gift was intended. It included the initial request for assistance obtaining a loan, signed and draft loan agreements, the bearer mortgage, the intended asset-protection arrangements, the absence of corroborating documents from the son, and the inherent improbability of creating a false paper trail while family relations remained good.

6. A document produced from reputable custody could be treated as authentic unless forgery was proved. The expert evidence did not positively establish that any signature on the loan agreement was forged. In any event, whether the son signed it was secondary because the determinative issue was the intention of the father and the company.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2022] EWCA Civ 464. The finding that the payments were an interest-free loan was rationally supportable.
2. High Court of Justice, Business and Property Courts: HHJ Jarman QC found after trial that CHF 6 million advanced for the apartment and works was an interest-free loan rather than a gift. No neutral citation is stated.