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Privy Council upholds appeal against findings of fraud

07/05/13

The Judicial Committee of the Privy Council gave judgment today in Mutual Holdings (Bermuda) Limited & Ors v Diane Hendricks & Ors [2013] UKPC 13, upholding an appeal by Mutual Holdings and two employees against a finding of fraud by the Court of Appeal of Bermuda.

The plaintiffs contended that the defendants had fraudulently overstated the extent of their exposure under a complex programme of insurance and reinsurance, thereby inducing them to order reinsurance which they did not need and to renew the programme for a further year on amended and disadvantageous terms. The trial judge, Bell J, rejected this allegation on the facts, but the Court of Appeal, in broad terms, upheld it.

Lord Sumption, giving the judgment of the Board, reiterated that an appellate court "is rarely justified in overturning a finding of fact by a trial judge which turns on the credibility of a witness." Those were concerns that were especially apposite in the present case, where the critical issue was what had been said at an informal and undocumented meeting eight years earlier.

Lord Sumption was highly critical of the Court of Appeal's approach, which contravened these principles. Having considered the primary flaws in that approach, he concluded that although there were a number of other problems in the Court of Appeal's judgment "these points [were] more than enough to make the Court of Appeal's finding of fraud untenable. It is regrettable that such a serious, indeed potentially career-destroying, finding should have been made against [the personal defendants] on such an unsatisfactory basis".

The judgment is here.

Mark Howard QC and Oliver Jones appeared for the Appellants, instructed by Conyers Dill & Pearman.