The Court of Appeal has ordered a retrial in a major fraud case after the trial judge took 19 months to hand down his decision.
In Bilta v Natwest Markets Plc, Mr Justice Snowden found that NatWest plc – known at the time as the Royal Bank of Scotland plc – was liable for £50 million to the liquidators of various companies on grounds of dishonest assistance and fraudulent trading relating to the carbon credit market.
However, the Court of Appeal found that there had been an ‘inexcusable’ delay in the handing down of the reserved judgment, which took place 19 months after the trial’s closing submissions.
‘A delay of the magnitude in the present case, whatever the explanation may be, is plainly inexcusable. It should not have happened and should not have been allowed to happen, particularly in a case where there were allegations of dishonesty, and the reputations and future employment prospects of the individuals concerned were at stake,’ the court ruled.
While the delay was ‘insufficient to afford a ground for setting a judgment aside’ it was found to be ‘an important factor to be taken into account when an appellate court is considering the trial judge's findings and treatment of the evidence, and the appellate court must exercise special care in reviewing the evidence, the judge's treatment of that evidence, his findings of fact and his reasoning’.
Considering how a serious delay affects the task of the appellate court when considering the criticisms of the judgment, Lady Justice Asplin, Lady Justice Andrews and Lord Justice Birss said that ‘any advantage enjoyed by the trial judge diminishes in importance as a consequence of the lengthy delay even if, as in the present case, he has the advantage of transcripts’.
The Court of Appeal held that the judge’s findings of dishonesty against employees of Natwest were vitiated by the ‘very lengthy’ delay in giving judgment. The High Court judgment was set aside and the matter was remitted for retrial.
Michael Ryan of 7 King's Bench Walk, who represented Natwest, said the judgment marked a rare instance of the Court of Appeal overturning a judge on factual grounds.
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