Khalik v London Antwerp Diamonds Ltd

An appellate court should not interfere with a trial judge’s finding of fact where it rests on a proper evidential basis. The appeal court is concerned with whether the finding was legally sustainable, not whether it would have reached the same factual conclusion. Evidential oddities, minor discrepancies and proposed further evidence do not establish an error of law where they do not undermine the evidential foundation of the decision. A fair-trial complaint under Article 6 is not made out where the party had a trial at which evidence could be adduced and the further evidence could have been presented at trial.

The applicant claimed that a rough stone returned by the respondent was not the stone he had delivered for valuation and investigation. After hearing expert evidence and considering photographs, Mr Recorder Gregory found that it was the same stone. Permission to appeal was refused on paper by Christopher Clarke LJ. The applicant renewed his application before the Court of Appeal, alleging errors concerning the evidence, the handling of the transaction, jurisdiction, further evidence and Article 6. The central issue was whether he had identified an error of law or a proper basis for disturbing the factual finding.

Permission to appeal was refused.

1. The critical issue was whether the stone delivered to the respondent was the same stone that the respondent was prepared to return. That was a question of fact. The recorder was entitled to resolve it by reference particularly to the photographs and expert reports, which provided powerful evidence of consistency.
2. The absence of paperwork concerning the stone’s examination in Antwerp was an evidential oddity and a matter of concern, but the recorder had considered it and was entitled to conclude that it did not outweigh the expert evidence. The difference between the recorded weights of 279 carats and 279.5 carats was not materially inconsistent with the stones being the same.
3. On an appeal concerned with a factual finding, the relevant question was whether the finding was binding on the appellate court and based on a proper evidential basis, rather than whether the appellate court would have reached the same conclusion. The complaints about the respondent’s conduct, the use of a name by a witness, and the venue of the proceedings disclosed no error of law.
4. The Article 6 complaint was rejected. The applicant had received a trial at which he could adduce evidence. Further evidence from Mr Haque could have been adduced then and, in any event, would not have undermined the finding based on the expert evidence.
5. There was no error of law and no realistic prospect that a full court would find the recorder in error. Permission to appeal was therefore refused.

• Court of Appeal (Civil Division): On the renewed application, Lord Justice Elias found no error of law and refused permission to appeal: [2016] EWCA Civ 272.
• Court of Appeal (Civil Division): Christopher Clarke LJ had refused permission to appeal on paper, finding no error of law and no realistic prospect of success.
• Manchester County Court: Mr Recorder Gregory determined the factual dispute after hearing expert evidence and found that the stone offered for return was the stone delivered by the applicant.