In granting conditional leave to appeal to the Judicial Committee of the Privy Council (JCPC), the Court of Appeal recently decided that it would benefit from clarity from the JCPC on:

1. The test for adducing fresh evidence on appeal

2. The effect of the armed conflict in Ukraine on forum challenges

The Court of Appeal considered that these issues were of “great general importance” that went beyond the private interests of the parties.

In 2021, the BVI Court had set aside an order for service of the claim out of the jurisdiction, finding that there was “no serious issue to be tried”; that the BVI had no jurisdiction to hear the claim; and that Ukraine rather than the BVI was the appropriate forum. WWRT appealed on various grounds, including fresh evidence that the recent conflict in Ukraine had rendered that jurisdiction an inappropriate forum. The Court of Appeal rejected that argument and WWRT then applied for leave to appeal to the JCPC.

The rules for the introduction of new evidence are governed by the seminal test set out in Ladd v Marshall, the first limb of which mandates that “the evidence could not have been obtained with reasonable diligence for use at the trial” (per Denning).

In this case, the Ukraine conflict had begun after the first instance hearing. The Court stated that the principles in Ladd v Marshall  had been applied consistently. However, it recognised that the decisions of Staray Capital Limited et al v Cha, Yan  and Adam Bilzerian v Gerald Lou Weiner et al, (where documents which post-dated the hearing were admitted into evidence) could be construed as being inconsistent and accordingly, that the guidance of the JCPC would be helpful.

The Court held further that the case presented unique circumstances, specifically the supervening event of armed conflict, which so far as the Court was concerned had not been previously examined by a Caribbean Court. That created a genuine uncertainty in cases such as this. The Court decided that it would benefit from guidance by the JCPC on this point too.

We await the JCPC’s views on the issues with interest.

The full WWRT Limited v Carosan Trading Limited  judgement can be found here.