What is the effect of a trial judge adopting wholesale the closing submissions of one party and largely ignoring the submissions of the other side? That was the issue considered by the Eastern Caribbean Court of Appeal (“ECCA”) in Rayley Company Ltd v Fong.

After a 12 day trial in a derivative claim brought in the BVI Commercial Court, the judge found in favour of the Claimant. The written judgment substantially adopted the Claimant’s written closing submissions. A comparison of those submissions with the judgment revealed that the judgment adopted approximately 90% plus of the Claimant’s submissions.

The question for the ECCA was whether a reasonable person would conclude that the judge failed to perform his duty to review and consider the evidence with an open mind. Having considered the relevant case law and the judgment, the ECCA found that the extensive copying of the Claimant’s submissions, viewed as a whole, would lead a reasonable observer to be satisfied that the trial judge had failed impartially and independently to examine all of the evidence and submissions and arrive at his own conclusions. The appeal was allowed and the case remitted for a retrial before a different judge.

Andrew Westwood KC appeared with Laure-Astrid Wigglesworth of Appleby for Rayley Company Ltd on the appeal.

The judgment of the ECCA is available here