A concurrent finding of fact is where the first instance court makes a finding of fact and that finding is upheld by the Court of Appeal. The Board’s practice is that a concurrent finding of fact can only be subject to a second appeal (appeal to the Privy Council) where the appellant demonstrates that there has been a miscarriage of justice that permeates all judicial procedure to make what happened not judicial procedure at all. This practice applies even where the appellant appeals to the Privy Council as of right. This is a “super-added constraint” over and beyond the usual reluctance of any appellate court from disturbing findings of fact by the first instance judge. The Board justifies this rigid practice on the basis that the reliability of the trial judge’s findings would have already been subject to careful review by a properly constituted appellate court such that there is no question of access to justice regarding the availability of an appeal.

The case before the Board concerned a shareholder dispute where the Respondent, Mr Holm asserted that he entered into an oral agreement whereby he was to be transferred certain percentages of shares in BVI companies as part of a joint venture. The Appellants argued that there was no agreement such that the Respondent was not entitled to the percentages claimed. The first instance judge preferred Mr Holm’s evidence and found that an oral agreement was made in the terms alleged. In assessing the decision of the first instance judge, the Court of Appeal gave careful consideration to the credibility of evidence that was heard by the judge and found that the conclusions reached by the judge were eminently reasonable. The Court of Appeal held that the terms of the agreement were neither vague nor uncertain and were clearly identified and understood by the parties.

The Board held that this was not one of the cases which merited a full reconsideration by way of second appeal nor was it appropriate to allow the appellants to develop their arguments that the appeal should be allowed. The Board held that it was being asked to revisit factual issues considered at length by the trial judge and the Court of Appeal.

The Board therefore preliminarily dismissed the appeal on the basis that the Appellants were not able to demonstrate that exceptional circumstances existed to derogate the long-held practice.

This case is a reminder of the strict rules that must be adhered to when launching an appeal to the Privy Council.