This was an appeal following a 13-day trial in the Commercial Court in 2018. The claims arose from the Appellants’ investment in an alleged Ponzi scheme spearheaded by the sixth Respondent (“Mr Daskaleas”) and facilitated on the trading platform owned and operated by the First to Third Respondents (“Ikon”).
Against Ikon, the primary complaint concerned several statements issued to the Appellants in respect of certain trading accounts. These seemed to indicate a substantial return on investments, confirming balances of USD 268 million and 24 million. The Appellants claimed they relied on these statements in the course of their investment, but it transpired that the statements in fact referred not to the Appellants’ accounts but to ‘demo’ accounts commonly used to practise or to demonstrate trading using notional funds. The Appellants therefore brought claims against Ikon for deceit and dishonestly assisting Mr Daskaleas to commit breach of fiduciary duty.
Ikon contended that at all times both it and the Appellants understood the statements as referring to demo accounts and that it had done no more than confirm the balances on these accounts. Although it did not dispute that Mr Daskaleas and his associates, including the CEO of Ikon, appeared to be engaging in some kind of fraudulent scheme, Ikon denied both knowledge of these persons’ dishonesty and dishonesty on Ikon’s own part. Ikon also denied that the Appellants had any basis upon which to believe the statements referred to genuine and available funds, nor to rely upon them in such a way as to cause them loss.
Of the numerous issues at trial, the Judge focussed on two: whether (1) in providing the statements, Ikon acted dishonestly; and (2) the Appellants relied on these confirmations as referring to real funds. Much, therefore, depended on the judge’s findings on the relevant witnesses’ states of mind and knowledge. Both issues were resolved in favour of Ikon in a 13-page judgment.
The Appellants contended that the judgment failed to address many of the issues which arose at trial, that its conclusions were cursory and its reasoning limited, and that it failed properly to analyse the critically relevant witness and documentary evidence. Ikon contended that, although the contemporaneous documents were relevant, the two central issues ultimately turned on the credibility of the witnesses. No lengthy and detailed decision was, therefore, required so long as the issues vital to the judge’s conclusion were identified and the manner in which he resolved them explained.
Males LJ (with whom Peter Jackson and McCombe LJJ agreed) identified the key issues in the appeal as whether the Judge “gave adequate reasons for his conclusions” and whether there had been “a demonstrable failure to consider relevant evidence.” From the authorities, Males LJ then derived four principles “particularly relevant” to the case:
- Succinctness is desirable in a judgment, but short judgments must be careful judgments.
- It is not necessary to deal expressly with every point, but a judge must exercise judgment in deciding which points to omit and say enough to show that care has been taken and that the evidence as a whole has been properly considered.
- Exercise of the requisite care is best demonstrated by the “building blocks of the reasoned judicial process”: (i) identifying the issues which need to be decided; (ii) marshalling (however briefly and without needing to recite every point) the evidence which bears on those issues; and (iii) giving reasons why the principally relevant evidence is either accepted or rejected as unreliable.
- Fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it.
Given that the present judgment did not set out a chronological account of the facts and findings on disputed issues, Males LJ then set out such an account based on contemporaneous evidence, rather than witness evidence, to understand it and the Appellants’ criticisms of it. Without (of course) making findings on the relevant issues, Males LJ concluded there was a plainly arguable case of dishonesty on the part of Ikon which needed to be addressed and with which the judge did not adequately engage. Particular attention was drawn to the fact that the judgment “strikingly” contained “virtually no analysis” of the contemporaneous documents, such as emails, chat messages, and letters, many of which appeared to shed considerable light on the nature and purpose of the critical confirmations and the way in which they were understood.
Although conscious that ordering a retrial was a serious step to be taken only as a last resort, Males LJ considered that the judgment could not stand. The appeal was therefore allowed and the case remitted to be tried before a different judge of the Commercial Court.
This is another case in which the courts have highlighted the weight to be given to contemporaneous documents over the oral evidence of the witnesses. Males LJ made the following point:
… I would say something about the importance of contemporary documents as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party’s internal documents including emails and instant messaging. Those tend to be the documents where a witness’s guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence.
As with the rule that civil witness statements generally serve as evidence in chief, such emphasis on contemporaneous documents may ultimately result in ever more extensive disclosure and less lengthy examination of witnesses in oral evidence. It remains to be seen how this may affect litigation and trial procedure in the long-term.
More generally, the appeal makes clear that where there is compelling evidence which is apparently contrary to the conclusion reached by a judge, fairness and due process requires the judge to explain why the evidence has not been accepted. Although Males LJ did not go so far as to say that a judgment which fails to do so, or otherwise fails to observe the other principles enunciated, will necessarily be inadequately reasoned, Males LJ was also clear that in such cases, the reasoning of the judgment will need to be particularly cogent if it is to satisfy the demands of justice.
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