In the recent decision of Pleshakov v Sky Stream Corporation, 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 in 2018 that the BVI Court of Appeal has addressed this issue.
In Byers v Ningning, having considered the rare cases in which it may intervene in matters of fact, the court found that the trial judge's conclusions 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 each point in his judgment. The appellant's appeal was dismissed.
In Pleshakov the court accepted the appellants' submissions that:
- the judge's evaluation had been wrong;
- his conclusions were demonstrably erroneous; and
- in those circumstances the court was entitled to interfere with and set aside his findings of fact.
Allowing this appeal, the court found that while 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 no evidential basis for his conclusions was found. The appellants' appeal was allowed.
These two cases illustrate the approach of the BVI Court of Appeal to issues of fact determined at first instance. While the threshold for intervention is high, the court will intervene on appropriate occasions. 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.
For further information on this topic please contact Andrew Thorp at Harney Westwood and Riegels' Tortola office by telephone (+1 284 494 2233) or email (email@example.com). Alternatively, contact Phillip Kite at Harney Westwood and Riegels' London office by telephone (+44 20 7842 6081) or email (firstname.lastname@example.org). The Harneys website can be accessed at www.harneys.com.
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