Kashi (t/a Tantalizing Face and Body Clinic) v Mustafa

On an appeal from findings of fact, the appellate court should respect the trial judge’s assessment of witnesses and evidence. Intervention is justified only where the finding is unsound or involves an error of principle. The civil standard remains the balance of probabilities, but a trial judge need not provide an academic exposition if the direction is correct in context. Fresh evidence will generally be excluded where it was available at trial and could reasonably have been produced then. Trial management, including whether to reopen evidence or permit further cross-examination, is primarily for the trial judge. Appellate intervention requires an error of principle or manifest unfairness.

The defendant appealed from an order of the Kingston-upon-Thames County Court holding him liable for burns caused by the negligent provision of laser hair-removal treatment and awarding the claimant damages and costs. Permission had been granted to appeal and to adduce further evidence. The appeal challenged the trial judge’s approach to the burden and standard of proof, her finding as to the date of the incident, refusal to admit further transaction records, refusal to permit further cross-examination after closing submissions, and an alleged reliance on surmise. The central issues were whether the judge had made an error of law, fact or procedure warranting appellate intervention.

1. Appeal dismissed. The trial judge correctly directed herself that the claimant bore the burden of proof and that the applicable standard was the balance of probabilities. The principles in Rhesa Shipping SA v Edmunds [1985] 1 WLR 948 were helpful, but their application depended on the context. A trial judge need not write an academic dissertation where the substance of the direction is correct.
2. The finding that the incident occurred on or about 5 May 2007 was supported by the claimant’s evidence, her mother’s evidence, documentary records and the trial judge’s assessment of credibility. The appellate court should attach great weight to the judge who saw and heard the witnesses, following Watt v Thomas [1947] AC 484. This was a factual dispute of the kind ordinarily resolved at first instance.
3. The further transaction evidence was inadmissible under the principles in Ladd v Marshall [1954] 1 WLR 1489. It was not genuinely new, could have been adduced at trial, and reasonably should have been produced then. The unfortunate handling of a redacted bank statement did not justify departing from the ordinary principles or require admission on broader fairness grounds.
4. Control of the trial, including whether to reopen evidence and permit further cross-examination after closing submissions, is primarily a matter for the trial judge. Appellate intervention is ordinarily confined to an error of principle or manifest unfairness. Neither was established. The defendant had already cross-examined the claimant, and reopening the evidence would potentially have required the claimant’s mother also to be recalled.
5. The trial judge’s reference to surmise did not show that she decided liability without evidence. Read in context, it described an inference arising from her findings that laser treatment had been provided at the clinic. That was a permissible conclusion on the evidence.

• High Court (Queen’s Bench Division): Appeal from the Kingston-upon-Thames County Court dismissed.
• Kingston-upon-Thames County Court: The defendant was held liable for burns caused by negligent laser hair-removal treatment. Damages and costs were awarded.