Lincoln Bain and another v Zinnia Rolle (The Bahamas)

The Privy Council will not ordinarily reopen concurrent findings of fact made by the trial court and upheld on appeal. Departure requires exceptional circumstances. A challenge based on delay affecting the reliability of findings remains a challenge to those findings, even if the delay point arose only on appeal. The Board will also generally refuse to entertain a new point of law on a second appeal where neither lower court was asked to decide it, even if the relevant facts are established. Very exceptional circumstances are required to admit such a point.

The respondent obtained judgment for $64,000 on a contractual claim for repayment of money paid under two written agreements. The trial judge rejected the appellants’ allegation that the first appellant’s signature had been forged. The Court of Appeal dismissed an appeal, including a challenge based on the lengthy delay between the trial hearing and judgment.

Before the Privy Council, the appellants sought to challenge the factual findings because of the delay and to dispute the calculation of interest. The Board considered whether either proposed ground could properly be entertained on a second appeal.

Lord Leggatt delivered the judgment of the Board.

1. Concurrent findings of fact. The trial judge rejected the forgery allegation after hearing oral evidence, and the Court of Appeal upheld that conclusion. Those were concurrent findings on the essential question whether the agreements were genuine. The Board’s settled practice, authoritatively stated in Devi v Roy [1946] AC 508, is not to depart from such findings except in exceptional circumstances.
2. The fact that the delay argument was raised only in the Court of Appeal did not prevent the findings from being concurrent. The argument that the four-year delay made the findings unsafe was simply a challenge to the reliability of the trial judge’s factual conclusions. The Court of Appeal had rejected it, and no exceptional circumstance justified departure from the settled practice.
3. New point on appeal. The proposed challenge to the interest calculation concerned a point of law, not a disputed fact. The issue could have been raised at trial or, at latest, before the Court of Appeal. The grounds of appeal and the bare reference to interest in the skeleton argument had not properly engaged the issue, and the point was first properly raised when permission to appeal to the Privy Council was sought.
4. The Board applied the principle stated in Ryan Cox v Cox [2019] UKPC 32, that a new point of law will not ordinarily be permitted without the benefit of decisions from the courts below, even where the relevant facts are established. No very exceptional circumstances existed.
5. The Board therefore concluded that neither ground should be entertained. The appeal was struck out at the case-management stage without proceeding to a full hearing.

• Privy Council. The proposed appeal was struck out at a case-management hearing because neither ground was properly entertainable.
• Court of Appeal of the Commonwealth of the Bahamas. The appeal was dismissed. The court rejected the argument that the delay between the evidential hearing and judgment made the factual findings unsafe.
• Trial court. Judgment was given for the respondent in the sum of $64,000. The forgery allegation was rejected.