Introduction
Facts

Decision
Comment


Introduction

In a unanimous judgment, the Court of Appeal has dismissed an appeal brought by Mr Alexander Vik against orders of Mrs Justice Moulder in the High Court. The order found Mr Vik guilty of contempt and committed him to 20 months in prison. This is the latest development in longstanding proceedings brought by Deutsche Bank AG against Mr Vik in 2009. As well as another victory for Deutsche Bank, the judgment provides useful guidance on the circumstances in which an appeal court can overturn a trial judge's findings of fact. It also clarifies a previously unsettled procedural point regarding when the court's permission is required to appeal a contempt order.

In summary, the case reiterates the well-established position that a high threshold must be met for an appellate court to overturn a trial judge's factual findings. In particular, an appellate court will be very cautious before overturning factual findings relating to a witness' credibility. This is because credibility is difficult to discern outside the context of the trial courtroom and cannot readily be deduced from documents such as a transcript of evidence. Furthermore, it is not the role of an appellate court to duplicate the trial.

The judgment has also clarified that the courts' permission is not required to appeal against an order committing an individual to prison for contempt. However, permission is required to appeal against an order finding a person guilty of contempt that does not impose a prison sentence.

Facts

Deutsche Bank's main case against Sebastian Holdings Inc(1) (SHI) involved a claim for $250 million arising out of loss-making derivatives trading that SHI had carried out through the Bank. The 14-week trial took place in 2013 and resulted in the Commercial Court finding in favour of Deutsche Bank and giving judgment for $243 million. The court dismissed an $8 billion counterclaim brought by SHI, finding it had been brought in bad faith and was based on documents fabricated by Mr Vik and his assistant. Following Mr Vik's failure to pay the judgment sum into court, Deutsche Bank has sought to enforce the judgment in various jurisdictions with limited success.

The latest judgment relates to Mr Vik's appeal against a successful committal application brought by Deutsche Bank, in which the High Court found that Mr Vik was guilty of contempt in two respects. Specifically, Mrs Justice Moulder in the High Court found that Mr Vik had deliberately:

  • given false evidence at a hearing that he had been ordered to attend pursuant to Civil Procedure Rules (CPR) 71,(2) for the purpose of providing information as to SHI's ability to satisfy the judgment debt; and
  • failed to produce documents that he had been ordered to produce under CPR 71.

Decision

The Court of Appeal rejected Mr Vik's contentions that the findings of contempt had been wrongly made or alternatively that the sentence imposed had been too severe. Lord Justice Males noted that Mr Vik's appeal was against the trial judge's findings of fact and emphasised that there are "limited circumstances in which such an appeal can succeed".(3)

The Judge cited Lady Justice Carr in a previous case(4) setting out the reasons why a high threshold must be met for an appeal court to interfere with findings of fact by a trial judge. For example:

  • trial judges are experts in determining what facts are relevant to the legal issues before the court, and what those facts are if disputed;
  • duplication of the trial judge's role on appeal would be a disproportionate use of limited court resources;
  • the trial judge will necessarily have regard to "the whole sea" of evidence before them, whereas an appellate court will only be "island hopping"; and
  • the atmosphere of the trial courtroom cannot be recreated before an appellate court by referring to documents such as transcripts of evidence.

Accordingly, a finding of fact by a trial judge must be "plainly wrong" in order to be overturned.(5) The circumstances in which appellate interference in findings of fact may be justified include where:

  • the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence into account, or arrived at a conclusion which the evidence could not on any view support;
  • the finding is infected by some identifiable error, such as a material error of law; or
  • the finding lies outside the bounds within which reasonable disagreement is possible.

Deutsche Bank AG v Sebastian Holdings Inc makes clear that the principles regarding appeals against findings of fact are particularly important when the appeal involves a challenge to the judge's assessment of the credibility of a witness. In the High Court, Mrs Justice Moulder had held that Mr Vik was not a credible witness. She found that certain answers by Mr Vik at the examination under Part 71 of the CPR were "clearly a lie" and "clearly absurd".(6) The Court of Appeal ultimately found that there was no substance to Mr Vik's criticisms of the trial judge's approach to assessing Mr Vik's credibility.

Lord Justice Males further commented that the trial judge's assessment of a witness' credibility, especially in a "complex and document-heavy case where there has been extensive cross-examination", will necessarily be based upon the "cumulative effect" of many factors. Not all factors are necessarily easy to articulate, or clear from a transcript. Lord Justice Males noted that a single error made by a trial judge may not vitiate his or her ultimate findings. Whether it will do so depends on how important the error is in the context of the whole case.

The judge also observed that the general approach to an appeal against findings of fact in a civil context applies equally to a committal order for contempt, even though the criminal standard of proof applies.

Court's permission to appeal a contempt order
While not directly in issue, the Court of Appeal took the opportunity to clarify the position regarding whether permission is required to appeal against a finding of contempt.

Section 13(1) of the Administration of Justice Act 1960 provides:

Appeal in cases of contempt of court:

(1) Subject to the provisions of this section, an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section shall have effect in substitution for any other enactment relating to appeals in civil or criminal proceedings.

In addition, CPR 52 3(1)(a) provides:

(1) An appellant or respondent requires permission to appeal -

(a) where the appeal is from a decision of a judge in the County Court or the High Court, or to the Court of Appeal from a decision of a judge in the family court, except where the appeal is against -

(i) a committal order;

(ii) a refusal to grant habeas corpus; or

(iii) a secure accommodation order made under section 25 of the Children Act 1989 or section 119 of the Social Services and Well-being (Wales) Act 2014; or

(b) as provided by Practice Directions 52A to 52E.

The common feature of the orders listed at CPR 52 3(1) above is that they result in deprivation of liberty. It has therefore previously been unclear whether a right to appeal without permission only lies from an order committing a person guilty of contempt to prison, or also from an order that makes a finding of contempt but does not impose a prison sentence. This procedural issue is particularly relevant in complex cases where allegations of contempt are dealt with in two stages, namely:

  • establishing whether the alleged contempt has been committed; and
  • if contempt is proved, determining the appropriate sanction.

Deutsche Bank AG v Sebastian Holdings Inc now makes clear that no permission is required to appeal against an order committing an individual to prison for contempt. However, permission is required to appeal against an order finding a person guilty of contempt that does not impose a prison sentence.

The judge also provided the following guidance in terms of the practical implications of such requirements:

  • Where a person found guilty of contempt applies without permission to appeal against a committal order, they are also entitled to challenge the finding of contempt itself on appeal, even if no permission has been sought.
  • Where contempt proceedings are dealt with in two stages as set out above, after the first stage a judge may order that the time for appealing the finding of contempt will not run until after the court has determined what sanction to impose.
  • The position is different in the case of a corporate defendant that cannot be committed to prison. Corporate defendants therefore require permission to appeal in relation to both a finding of contempt and (if applicable) the sanction imposed.

Comment

Mr Vik now faces a custodial sentence in the absence of a successful further appeal. It is perhaps unsurprising that he was unwilling to come within the jurisdiction to give evidence during the High Court committal hearing, electing instead to be cross-examined remotely by the Bank's counsel from France.

As well as being the latest instalment in these long-fought proceedings, practitioners may also find the Court of Appeal's judgment useful when considering the circumstances in which an appellate court may overturn a trial judge's finding of fact, and when permission is required to appeal against a finding of contempt.

For further information on this topic please contact Ana Margetts or Simon Hart at RPC by telephone (+44 20 3060 6000) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.

Endnotes

(1) A Turks & Caicos Islands offshore special purpose vehicle, which Mr Vik owned and controlled 100% until at least July 2015.

(2) Part 71 of the Civil Procedure Rules relates to orders to obtain information from judgment debtors. In July 2015, Mr Vik was ordered to:

  • produce all documents in SHI's control relating to its means of paying the judgment debt; and
  • attend an examination before a judge to provide information about SHI's means and any other information needed to enforce the judgment.

(3) Deutsche Bank AG v Sebastian Holdings Inc [2023] EWCA Civ 191 at [48].

(4) Walter Lilly & Co Ltd v Clin [2012] EWCA Civ 136 at [83].

(5) Walter Lilly & Co Ltd v Clin [2012] EWCA Civ 136 at [85].

(6) Deutsche Bank AG v Sebastian Holdings Inc [2022] EWHC 1599 at [78].