Offshore Litigation

Blog

Offshore Litigation

Contributors

Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Stuart Cullen
Stuart Cullen
  • Stuart Cullen

  • Partner
  • British Virgin Islands
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Hazel-Ann Hannaway
Hazel-Ann Hannaway
  • Hazel-Ann Hannaway

  • Partner
  • British Virgin Islands
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • London
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands

BVI Court of Appeal reaffirms it will rarely reverse findings of fact

In the recent decision of the Court of Appeal of the BVI, of Mark Byers et al v Chen Ningning, the appeal was dismissed against the liquidators of a BVI company called Pioneer Freight Futures Company Limited (PFF).

The case concerned a claim by the liquidators of PFF against the former director and sole shareholder of PFF in respect of loan repayments to a creditor within six months of the liquidation, raising interesting and complex issues of unfair preference and breach of fiduciary duty.

In dismissing the claim at first instance, Justice Bannister made various findings of fact, including that the Respondent was neither a de jure director, nor de facto or shadow director at the time when the loan repayments were made, thus no fiduciary duties to PFF were owed. The claim for unfair preference failed. The liquidators appealed on various grounds, including the trial judge’s finding of fact.

The Court of Appeal reaffirmed the established law regarding reversing findings of fact, and that the CA would only intervene in rare cases, such as (i) when there is no evidence to support the conclusion; (ii) it was based on a misunderstanding of the evidence; or (iii) which it was a conclusion that no reasonable judge could have reached. The CA upheld the lower court’s decision and dismissed the appeal; it could not be said that the challenged findings are unsupported by the evidence or were ones where no reasonable judge could have reached or were not reasonably justified or explained. The trial judge had taken the whole of the evidence into consideration, and the fact that not every point and inconsistency was dealt with is sufficient grounds for appellate interference. This case also provides insight to the CA’s attitude towards the lower court’s finding on credibility and the issue of predetermination of the judge.

 

Containers

Leave A Comment