Concurrent findings of fact (once again) – Tim Prudhoe successful in the Privy Council

Tim Prudhoe appears in the Privy Council for the successful respondent LCMS Ltd whereby the Privy Council was asked to review concurrent findings of fact.

The decision of the Privy Council in the recent case of Darren Singh v LCMS Ltd on appeal from Trinidad and Tobago is a useful further reminder on the difficulties of attempting an appeal on findings of fact.

A dispute of fact as to an oral agreement on a loan had resulted in a dissenting Judgment in the Court of Appeal of Trinidad and Tobago. Having given advance notice of its intention, the Board heard oral submissions at the outset of the hearing as to the existence of “exceptionality” for review by way of second appeal against concurrent findings of fact.

The appeal was then dismissed.

In the written judgment, the Board reviewed its own recent decisions on this issue. Again, confirming the required circumstances as being a miscarriage of justice, such as not to be a proper judicial procedure at all.

The Board noted at [22] (Lord Stephens) that the dissenting Court of Appeal Judgment neither indicated a miscarriage of justice nor stated that that factual finding of the judge was unsupported by any evidence.

The unsuccessful attempt to establish exceptionality was based on five factors:

1. The evidence at trial of the respondent’s primary witness, including reference by that witness in cross-examination to documents produced neither on discovery or at trial.
2. Failure by the judge to reference in his Judgment investor status in a relevant third party.
3. Inconsistencies within witness evidence.
4. Failure by the respondent’s primary witness to recognise a relevant signature.
5. Failure, pre-action, by the respondent to collect the debt to which the oral agreement related.

Tim Prudhoe, instructed by K. Persaud Maraj & Co (of Trinidad), appeared for the successful respondent, LCMS Ltd.

Click here to read more about the case and the Judgment.