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.