School Holiday Season

It’s that time of year when I realise I’m another year older already (yay, happy birthday me), the days are getting shorter already, I haven’t fallen asleep in the sun yet this summer, and I really, really need a holiday. The school holidays have begun. And I’m still trogging off to work in the morning…*sigh*

For the next six weeks my children will be perpetually semi-naked or dressed only in pyjamas, grubby, grazing, glassy eyed from going to bed at ridiculous times and complaining of boredom at 5 minute intervals…(that’s what summer’s all about, right?). Wet, sandy, muddy footprint trails all through the house from the back door. Every. frickin. day. Lego and discarded drawings everywhere you move…empty wrappers and cartons strewn around the place…ice lolly fingerstreaks up the stairs…

I am counting down to the camping trip. When dirt does not matter and routines don’t exist (except the insane insistence on waking up at the crack of a sparrow’s fart). And there are no walls or carpets to trash. And when my mobile phone does not work and my emails can go blissfully unread.

That’s it. I have nothing of any significance to say…

A civil *style* authority

There is a really useful 2014 Court of Appeal judgment which I’ve come across lately which has some useful cross over applicability to appeals on fact in family cases. The case : Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 (28 January 2014) is a passing off action all about the distinction between Greek Yoghurt (thick, creamy and made so in Greece through straining and consequently reassuringly expensive) and Greek Style Yoghurt (thick and creamy but not made in Greece and produced by the addition of assorted *stuff* to approximate the thick and creaminess and consequently appealingly cheap). Yes, there are 113 WHOLE paragraphs about the semantics of yoghurt, the belief of the general population about the characteristics of Greek Yoghurt versus Greek Style Yoghurt, and labelling conventions in the UK yoghurt market – but fortunately you don’t need to read that unless you are some kind of yoghurt obsessive (Greek-Geek?).

You can skip straight to pa 114 where Lord Justice Lewison says this :

Appeals on fact

    1. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] RPC1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23 [2007] 1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58 [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include

i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

ii) The trial is not a dress rehearsal. It is the first and last night of the show.

iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done. 

  1. It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted. These are not controversial observations: see Customs and Excise Commissioners v A [2002] EWCA Civ 1039 [2003] Fam 55; Bekoe v Broomes [2005] UKPC 39; Argos Ltd v Office of Fair Trading [2006] EWCA Civ 1318; [2006] UKCLR 1135. 

  2. I make these points not out of any criticism of the judge. Quite the reverse. His judgment was admirably economical. But in their “replacement skeleton argument” Chobani criticised him for not having dealt in detail with particular evidential points on which they wished to rely in this court; and attacked a number of his detailed factual findings. The judge heard evidence over seven days and read a mass of material. I would therefore be most reluctant to disturb any of his findings of fact (whether primary or evaluative) unless compelled to do so. I might add that when I gave permission to appeal on the papers the grounds of appeal and supporting skeleton argument did not contain the large number of detailed factual points that Chobani wished to advance in their replacement skeleton argument. In the event, and partly as a result of discouraging interventions from the bench at an early stage in the appeal, Mr Baldwin’s oral submissions on these points were themselves admirably economical.

  3. In addition some criticism was levelled at the judge for not having dealt more comprehensively with the ingredients that needed to be proved in order to maintain a successful claim in passing off. But the judge’s judgment must be read against the background of what was actually in dispute between the parties. He dealt with the matters that were in dispute, and if he did not dot every i and cross every t in relation to what was not disputed, I do not consider that that is a valid ground of criticism.

So, I think you’ll agree that whilst much of this case might be all Greek to most of us in the family division, this aspect of the judgment is really quite a useful addition to any skeleton for the Respondent to an appeal on fact – whether in the family style or the civil style.

Incidentally, when I see the word “Style” on the label of something in Tescos I view it with suspicion and treat it as shorthand for “not the real deal – not “actually” [greek yoghurt / feta cheese / italian hard cheese], will probably taste alright but not as good as that one which is twice the price”. And in our household there is a slow running argument over the fact that my husband has taught the children to pronounce yoghurt as “YO!-gert” intead of “yog-urt”. But then he’s an American Style Husband…

That’s it, I have no more yoghurt related trivia.

Some things I don’t have time to blog about…

Busy in a trial this week.

Here are things that I’ve seen, noted and wanted to blog about but in respect of which others who clearly have too much time on their hands who are more efficient than I* have beaten me to the blog post.

Settlement Conferences, courtesy of the Ministry of Justice. What could possibly go wrong I hear you ask? Er… A lot, says the ALC. Being piloted in my area, so I shall say no more and await the rigorous evaluation of quality and durability of outcome that I know the MoJ have in train already. *hard stare*

See Suesspicious Minds here, who also links to Sarah Phillimore’s post here and the ALC’s coruscating dismantling of the scheme in “Guidance” to it’s members. In short it appears to practically advocate a boycott of the pilot, a sort of “don’t touch it with a barge pole piece of guidance”. as Suesspicious Minds ponders, why on earth were the professions were not consulted about this? Perhaps these problems can be ironed out, perhaps not – but for sure the way to find out is not to test it on real live children.

Next, transparency. More on the Butler family and restrictions on reporting. A judgment published telling us about another judgment that  we will find really interesting and important, but which we aren’t allowed to see, but that will be published at some point in the future…

Again, Suesspicious Minds here : Judgment on Reporting Restriction on the Butler/Gray case

There was a third thing, but if I’m honest I’ve forgotten what it was. So instead I will proudly share with you my best discovery today. My new fitbit tracks my heartrate. Today when I got back from court it reminded me that it had a flat battery, which prompted me to look at the app which displays all the stats gathered by this whizzy gadget. From looking at the heartrate information it appears that whilst cross examining I am burning fat. That is to say that I realised, when I looked at it, that the yellow “fat burning zone” peaks correspond entirely with my walking to and from chambers / court and with times when I was conducting cross examination (the bits in between are a rare and miraculous lunch break and me sitting down whilst other counsel conducted their examination in chief / re-examination). This is a fantastic and inspiring discovery that will possibly result in longer trials wherever I am involved. Because the longer my cross examination endures the more chocolate I can permissibly eat when I get home. I’m kidding of course, but it is quite gratifying to know that merely standing up and asking clever / incisive / annoying / foolish questions and vaguely employing my brain is *good for me*. I am only slightly disappointed and surprised to think that other traditional trial activities such as frantically flicking through my papers for a reference, leaning precariously back on my chair to whisper unobtrusively to my client, thinking VERY HARD and panicking about how I will completely rework my cross examination in light of that last answer does not also show yellow on the chart. Over the coming months I plan to conduct a *very scientific* study as to the comparative fat burning potential of different sorts of trials. I wonder if settlement conferences will be “good for my health” or not?

This sounds a bit flippant – and on one level it is. But it has a serious point. We work hard in this job, probably often harder and for longer than is healthy. Hence several of us in this week’s trial fighting sore throats and coughs and other ailments (myself included – send sympathy gifts via chambers). In fact we need to be better at keeping an eye on our own health in our working lives, because only by staying reasonably healthy can we be reliable, on the ball and effective for our clients, week in week out. I don’t REALLY think I’m going to get fit cross examining witnesses, but it is worth remembering the mental and physical and emotional energy we expend on this job, and remember to recharge the batteries when they are depleted.




* I don’t mean it lovely fellow bloggers. I’m just pulling your chain.