TC09095 - [2024] UKFTT 00181 (TC)

Fecha: 05-Dic-2023

Procedural background

Procedural background

This is not the first decision in this appeal. Morrisons made three appeals to the First-tier Tribunal (‘FTT’) covering all the Products in 2018. The FTT directed that the appeals should be consolidated into a single appeal.

The consolidated appeal was heard by the FTT (Judge Redston) remotely on 9, 10 and 11 February 2021. On 13 April 2021, the FTT released its decision with neutral citation [2021] UKFTT 106 (TC) (‘the First Decision’). In the First Decision, the FTT decided that the Products were confectionery and that none of them was a cake (which was and is Morrisons’ alternative argument).

Morrisons appealed to the Upper Tribunal (‘UT’) against the First Decision on the grounds that the FTT, in analysing whether the Products were ‘confectionery’ wrongly treated certain factors, as irrelevant. In a decision released on 23 January 2023 with neutral citation [2023] UKUT 00020 (TCC), the UT allowed Morrisons’ appeal and remitted the appeal to the FTT to be heard by a new panel.

In its decision, the UT held that the FTT should have considered:

(1)

the healthiness of the Products and their marketing as healthy; and

(2)

the fact that the Products do not contain ingredients associated with traditional confectionery (cane sugar, butter or flour)

as factors to be weighed in the balance with the other factors when considering whether the ordinary, but informed, person on the street would view the Products as ‘confectionery.’

In [143] of its decision, the UT made the following directions (re-worded as appropriate for this appeal and decision) for the determination of the issue:

(1)

We shall (subject to (3) below) make our determination on the basis solely of the evidence that was taken account of by the original FTT.

(2)

We shall accord Mr Galbraith’s evidence the same value as the original FTT on the basis explained at [131] of the First Decision.

(3)

We may, if we see fit, conduct our own test of taste and texture of the Products insofar as samples of these are still available (some were not available to the original FTT as they are no longer in production).

(4)

We may, if it remains possible, and if the parties reach agreement on bearing the cost, have recourse to the recording and/or transcript of the original FTT hearing.

(5)

We shall take as given the following primary findings of fact, but may as we see fit, make additional findings of fact on the basis of the evidence that was before the original FTT:

(a)

Organix bars: Ingredients and Process [111] – [115], The market and marketing [116] – [121], The Packaging [122] – [126], The Purchasers [131].

(b)

Nakd bars: Ingredients and Processing [186] to [191], Packaging [192] – [194], Positioning in store [195] – [196], On-line marketing [197] – [198], Purchasers [201] – [202].

(6)

We shall, having made any such additional findings of fact on the basis of the evidence that was before the original FTT (and if applicable our own taste test of the product samples) perform our own fresh evaluation of whether the products are ‘confectionery’.

(7)

We shall make whatever directions we see fit regarding the format of the hearing such as the manner and timing of submissions from the parties on the significance of the factors the original FTT omitted, the additional findings to be made, and the issues before the tribunal including, where appropriate issues concerning quantum.

10.

In relation to the issue of quantum, the UT directed that we should deal with it after hearing the parties’ submissions either at the substantive hearing or subsequently in the event that Morrisons is successful, as we see fit.