Sancus Financial Holdings Ltd and others v Holm and another (British Virgin Islands)

On a second or further appeal, the Privy Council will ordinarily decline altogether to review concurrent findings of fact by the two courts below. This super-added constraint is distinct from ordinary appellate restraint and applies equally to appeals as of right.

An appellant must identify clear exceptional circumstances before the Board considers the factual challenge. A decisive error of law or procedure, a fundamental miscarriage of justice or an unusually exceptional case may suffice. Disagreement about the weight or evaluation of evidence does not. A request for a retrial, or the presentation of the challenge as a procedural complaint, remains subject to the practice where its object is to reopen concurrent factual findings.

Sancus Financial Holdings Ltd and others v Holm and another (British Virgin Islands) arose from a commercial dispute about an alleged oral agreement. Mr Holm claimed that he was entitled to 22% of the founder equity in a financial-services project, held through whichever company stood at the top of its evolving corporate structure. The appellants denied that agreement and contended that his rights arose only under an executive service agreement.

Adderley J accepted Mr Holm's evidence, found that the oral agreement existed and had been breached, and held that his interest should have vested when the executive service agreement was signed. The Court of Appeal of the Eastern Caribbean Supreme Court dismissed the appellants' appeal, apart from reversing a costs order made in favour of FHI. It concluded that the trial judge's factual findings were supported by the evidence.

The appeal to the Board sought either dismissal of the claims or a retrial. The central issue was whether exceptional circumstances justified reopening the concurrent factual findings of the two courts below.

1. Disposition. Lord Briggs and Lord Kitchin delivered a joint judgment with which Lord Burrows, Lady Rose and Lord Lloyd-Jones agreed. The Board unanimously dismissed the appeal. The appellants had not established exceptional circumstances justifying reconsideration of the concurrent findings of fact. The respondents' application to adduce fresh evidence therefore fell away.

2. The Board affirmed the practice stated in Devi v Roy [1946] AC 508. On a second or further appeal, the Board ordinarily declines altogether to interfere with concurrent factual findings by the two courts below. The practice applies across all judicatures within the Board's jurisdiction and to appeals as of right. A dissent within a lower appellate court, or differences in the judges' reasons for reaching the same factual conclusion, does not displace it.

3. The practice is a super-added constraint, distinct from the ordinary reluctance of an appellate court to disturb a trial judge's findings. It reflects the prior review undertaken by an experienced appellate court, the limited prospect that a second appellate court will be better placed to disagree, the parties' interest in finality, the cost and demands of reviewing detailed evidence, and the local courts' possible advantage in understanding local custom and culture.

4. Where an appeal wholly or substantially challenges concurrent factual findings, the appellant must establish exceptionality as a preliminary condition. The written case must identify the exceptional circumstances clearly and specifically. If pre-reading does not persuade the Board, the threshold must be addressed through concise submissions at the outset. Mere assertions of exceptionality, or descriptions of the alleged injustice as gross, are insufficient. This applied the approach in Al Sadik v Investcorp Bank BSC [2018] UKPC 15.

5. Relevant exceptional circumstances may include a miscarriage of justice or violation of law or procedure so serious that the process cannot properly be described as judicial procedure. An error or neglect of law or procedure must be such that correcting it means the factual finding cannot stand. A material error concerning admissibility may qualify, but disagreement about the value or weight of evidence does not. These categories are illustrative rather than exhaustive, although the threshold is high.

6. The appellants' procedural complaints and request for a retrial did not escape the practice because their object remained to reopen the concurrent findings. Their submissions invited the Board to reassess the oral evidence against the documentary record. There was no confusion about the case advanced or anything exceptional in the proposed challenge. The Board therefore declined to entertain the factual appeal and humbly advised His Majesty that it should be dismissed.

• Privy Council: In Sancus Financial Holdings Ltd and others v Holm and another (British Virgin Islands) [2022] UKPC 41, the Board unanimously dismissed the appeal because no exceptional circumstances justified reviewing the concurrent findings of fact.
• Court of Appeal of the Eastern Caribbean Supreme Court: On 30 March 2020, the court dismissed the appeal from Adderley J, except that it reversed the costs order made in favour of FHI. It held that the trial judge's factual findings were supported by the evidence.
• First instance before Adderley J: On 19 December 2018, the judge found that the alleged oral agreement existed and had been breached. He held that Mr Holm's interest should have vested on 25 January 2016.