Lea Lilly Perry and another v Lopag Trust Reg and another No 2 (Cayman Islands)

An appeal to the Privy Council against concurrent findings of fact will be entertained only in exceptional circumstances involving a miscarriage of justice or a material violation of law or procedure. A finding unsupported by evidence must be critical to the outcome.

Foreign law remains a question of fact, but occupies a spectrum. Appellate scrutiny depends principally on how far domestic legal knowledge can assist. Findings based on unfamiliar law, foreign-language materials, contested expert evidence and fact-sensitive application attract the ordinary restraint applicable to concurrent findings.

A new equitable-mistake case cannot fairly be introduced on final appeal where it was neither pleaded nor reserved, the evidence was directed to a different case, and the necessary causation finding is absent.

A settlor transferred the sole share in a valuable Cayman company to the trustee of a Liechtenstein discretionary family trust. His widow and elder daughter challenged the transfer. They alleged that it infringed the widow’s matrimonial rights under Israeli law and should also be set aside for equitable mistake concerning the rights of discretionary beneficiaries under Liechtenstein law.

Segal J rejected both claims after hearing extensive expert and factual evidence. The Court of Appeal of the Cayman Islands upheld his findings. The appellants asked the Board to review the concurrent findings concerning Israeli and Liechtenstein law. They also sought to challenge the distinction in Pitt v Holt [2013] UKSC 26 between an operative mistake and causative ignorance.

The central questions were whether exceptional circumstances justified reviewing the concurrent findings, whether foreign-law findings required a different approach, and whether the new causative-ignorance argument could be pursued.

1. Appeal dismissed. The appellants had not established exceptional circumstances justifying review of the concurrent findings of fact. The Board would advise His Majesty that the appeal should be dismissed.

2. Foreign law is proved as fact because a domestic judge is not presumed to know it. It is nevertheless fact of a special kind. Cases lie on a spectrum according principally to the extent to which judges can use their knowledge of domestic law and domestic methods of statutory interpretation. Where the foreign system employs familiar common-law principles, an appellate court may be well placed to form an independent view. Where the law is unfamiliar and the trial judge has depended on foreign-language materials, contested expert evidence and cross-examination, the findings closely resemble ordinary factual findings and attract appellate restraint.

3. The trial judge’s task is to determine what the highest relevant court in the foreign system would decide. When expert witnesses disagree, the judge evaluates their reasoning and their evidence as a whole. An appellate court reviewing only the record may lack important advantages enjoyed at trial.

4. The Israeli matrimonial-property issues and their application to the marriage lay at or near the fact-intensive end of the spectrum. The law had no obvious domestic counterpart, was unsettled, and had been explained by competing experts who were cross-examined extensively. The trial judge’s findings that the share was a business asset and its transfer was not a critical event had been upheld after detailed appellate review. The allegedly unsupported finding concerning the widow’s knowledge was also supported by evidence and was not critical to the result.

5. The same conclusion applied to Liechtenstein trust law. Its rules were not readily accessible to judges trained in English or Cayman law, and the trial judge had resolved the limited disagreements between experts after oral evidence. The challenged inferences concerning tax planning, the settlor’s experience and the protector’s role were available on the evidence. None was critical because there was no finding that any belief, assumption or ignorance caused the transfer.

6. The Board declined to hear the proposed challenge to Pitt v Holt [2013] UKSC 26. Causative ignorance had not been pleaded, and the trial and first appeal proceeded on the common ground that an operative mistake was distinct from mere ignorance. It would have been unfair to determine a new case from findings made in a differently framed dispute. The absence of any causation finding meant that the proposed extension of the law could not assist the appellants in any event.

1. Privy Council: Dismissed the appeal and declined to review the concurrent findings of fact or hear the new causative-ignorance ground.

2. Court of Appeal of the Cayman Islands: Sir John Goldring P, Sir Richard Field JA and Sir Jack Beatson JA upheld Segal J’s findings on the Israeli matrimonial-property claim and the Liechtenstein-law issues.

3. Grand Court of the Cayman Islands: Segal J rejected the matrimonial claim and the equitable-mistake claim after hearing factual evidence and competing expert evidence on Israeli and Liechtenstein law.