Darren Singh v LMCS Ltd (Trinidad and Tobago)

On a second appeal, the Privy Council ordinarily will not revisit concurrent findings of fact by the courts below. The restriction applies even where the intermediate appellate court contains a dissent. An appellant must first demonstrate exceptional circumstances, such as a miscarriage of justice, a material error or neglect of law or procedure, absence of evidence, or a material admissibility error. The examples are illustrative, but the threshold is demanding. Disagreements about credibility, evidential weight, inconsistencies, omissions, lack of documentation, or pre-action conduct ordinarily remain matters of fact. They do not justify reopening the case merely because another view is possible. The Board dismissed the appeal because the challenge sought only to reargue the evidence and did not approach the required exceptionality.

LMCS claimed that TT$1,500,000 paid to Darren Singh in three cheques was a one-year loan. Singh maintained that the payments were made by LMCS, on behalf of Nu Image Shuttle Services Ltd and/or Keith Subiah, in repayment of money owed to him. After trial, Seepersad J found for LMCS on 4 December 2017. The Court of Appeal of the Republic of Trinidad and Tobago dismissed Singh’s appeal on 2 November 2020, with Smith JA giving the majority judgment and Aboud JA agreeing; Mendonça JA dissented. Singh appealed as of right to the Board, challenging concurrent findings of fact. The central issue was whether exceptional circumstances justified a second appellate review.

Lord Stephens delivered the judgment of the Board, which dismissed the appeal.

1. Governing practice. The settled practice of the Board is not, save in exceptional cases, to review concurrent findings of fact by the courts below on a second appeal. That practice applies even where there was a dissent in the intermediate appellate court. Where the appeal concerns all, or a substantial part, of the concurrent factual findings, demonstrating exceptional circumstances is a preliminary condition to the Board proceeding further. The exceptionality must be shown clearly in the written case and, if necessary, established at the outset of the hearing by concise oral submissions.
2. Exceptional circumstances. The circumstances capable of justifying departure include a miscarriage of justice or a violation of a principle of law or procedure having such effect that the finding cannot stand. A material issue concerning admissibility of evidence may suffice. The categories are illustrative rather than exhaustive, but the threshold is very high. The value or weight of evidence alone is insufficient.
3. Application. Singh’s five grounds concerned the alleged failure to document the loan, references to undisclosed documents, LMCS’s investment in Nu Image Shuttle Services Ltd, inconsistencies in evidence, a witness’s inability to recognise a signature, and the absence of pre-action debt collection. These were matters for the assessment of evidence and credibility. They did not amount to a miscarriage of justice, an error or neglect of law or procedure, an absence of evidence, or any other exceptional circumstance. The Board therefore declined to re-examine the merits of the concurrent factual findings.
4. Order. The appeal was dismissed.

1. Privy Council. On 14 March 2024, the Board dismissed the appeal against the concurrent factual findings below: [2024] UKPC 5.
2. Court of Appeal of the Republic of Trinidad and Tobago. On 2 November 2020, Smith JA, with Aboud JA agreeing, dismissed the appeal and upheld the finding that the payments were a one-year loan. Mendonça JA dissented.
3. High Court of Trinidad and Tobago. On 4 December 2017, Seepersad J found that TT$1,500,000 had been lent by LMCS to Singh and entered judgment for LMCS for that sum, with interest and costs to be calculated on the prescribed basis.