In the recent decision of Alexander Pleshakov v Sky Stream Corporation and Others (Pleshakov), the BVI Court of Appeal considered the scope of its jurisdiction to interfere with findings of fact made at first instance. This is the second time this year that the BVI Court of Appeal has addressed this issue.

We have previously blogged about the Judgment of the BVI Court of Appeal in Mark Byers et al v Chen Ningning (Byers) and the general reticence of the appellate courts to interfere with findings of fact made at first instance. In Byers, having considered the rare cases in which it may intervene in matters of fact, the BVI Court of Appeal found that the conclusions of the trial Judge at first instance were not inconsistent with the evidence which he had reviewed in its entirety; and that it was insufficient for the Appellants to show merely that the trial Judge had not addressed every single point in his Judgment. The Appellant’s appeal was dismissed.

In Pleshakov, the BVI Court of Appeal accepted the Appellants’ (Defendants’) submissions that the Judge’s evaluation had been wrong; that his conclusions were demonstrably erroneous; and that in those circumstances the BVI Court of Appeal was entitled to interfere with and to set aside his findings of fact. Allowing this appeal, the BVI Court of Appeal found that whilst it should not interfere unless the trial Judge was plainly wrong, it retained the jurisdiction to identify and remedy mistakes made in a trial judge’s assessment of evidence. Notably, where those errors were sufficiently material to undermine the Judge’s consequential conclusions, it was required to intervene. In this case, the requisite threshold for intervention was met, the judge’s evaluation was wrong and there was found to be no evidential basis for his conclusions. The Appellants’ appeal was allowed.

These two cases helpfully illustrate the approach of the BVI Court of Appeal to issues of fact determined at first instance. Whilst the threshold for intervention is high, the Court will intervene in those rare occasions where it is appropriate to do so. The thoroughness of the evaluation of evidence and the credibility of the Judge’s conclusions at first instance are likely to be pivotal to that determination.