[2025] EWHC 1648 (Fam)

Fecha: 30-Jun-2025

The reasons for this stringent approach by appeal courts include ( Fage v Chobani )

(f)

The reasons for this stringent approach by appeal courts include (Fage v Chobani):

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 seldom leads to a different outcome.

iv.

The trial Judge will have regard to the whole of the sea of evidence presented to them, whereas an appellate court will only be ‘island hopping’.

The atmosphere of the courtroom cannot be recreated by reference to documents (including transcripts of evidence).

vi.

Even if it were possible to duplicate the role of the trial Judge, it cannot in practice be done.

68.

In Volpi v Volpi [2022] EWCA Civ 464, Lewison LJ characterised the approach to an appeal on a pure question of fact as a "well-trodden path" signposted by the following principles:

"2.

…

An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii)

The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii)

An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv)

The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.

vi)

Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."

69.

As Hayden J recently observed in Re A (Appeal: Findings of Fact) [2025] EWHC 1279 (Fam), “these principles shield the findings of a first instance judge with a robust and durable armour, though not, ultimately, an impregnable one”.