IRINA IDJATULINA v FINISHING TOUCHES (SPMU) LTD

An appellate court reviewing factual findings should presume that the first-instance judge considered the evidence unless the contrary is shown. It may intervene where the judge materially failed to consider relevant evidence, relied on irrelevant evidence, made an error of law, or reached a conclusion unavailable on the evidence.

Fresh evidence is governed by the interests of justice. The Ladd v Marshall considerations remain relevant, but operate as guidance rather than rigid rules. A misrepresentation claim requires a representation of fact, inducement, falsity and absence of any applicable bar.

The claimant appealed against the dismissal, after trial, of claims for breach of contract and misrepresentation arising from a scalp micropigmentation training course and the purchase of a micropigmentation machine.

The appeal challenged findings that facial rejuvenation training was not an express contractual term, that training on permanent and semi-permanent inks had been provided, and that the machine had not been acquired as a result of any actionable misrepresentation. The claimant also sought to adduce fresh evidence concerning training practices, insurance and certificates.

1. Appeal dismissed. The appeal was limited to a review under CPR 52.21(1). The Recorder’s decision could be overturned only if it was wrong or unjust because of a serious procedural or other irregularity under CPR 52.21(3).
2. There was a general presumption that the Recorder had considered the facts. His judgment engaged with the evidence and the issues. The appellate court could intervene only if he had materially failed to consider relevant evidence, considered irrelevant evidence, made an error of law, or reached a conclusion that was not open on the evidence. The conclusions on facial rejuvenation training were reasonably available on the emails, evidence concerning the additional workshop and the machine options.
3. Fresh evidence was governed by the interests of justice. The considerations in Ladd v Marshall remained relevant, but were not primary rules. The evidence was refused because much of it could have been obtained earlier and would not probably have had an important influence on the outcome. Evidence concerning later training practices did not establish what the parties agreed or did in 2019.
4. The Recorder had applied the substance of the misrepresentation test even though he had not stated it expressly. The claim required a representation of fact, inducement, falsity and absence of any applicable bar, as identified in Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland plc. The claims failed because there was no representation that facial rejuvenation formed part of the course, no false representation concerning the machine, and no sufficient evidence of inducement.
5. The Recorder was entitled to find that the agreed teaching on permanent and semi-permanent inks had been provided. The evidence supported his conclusion that the implantation methodology was the same, notwithstanding differences between the inks. The appeal therefore failed on both grounds.

1. High Court (King’s Bench Division): Mrs Justice Hill DBE dismissed the appeal against the order of Recorder Wright dated 29 October 2020.
2. County Court at Central London: After trial, the Recorder dismissed the claims for breach of contract and misrepresentation.