Approach to the appeal
10.The approach that an appellate court should take in assessing whether to overrule the decision of a lower court is nuanced and governed by a number of factors. In REEF Trade Mark [2000] EWCA Civ 763; [2003] R.P.C. 5 the Court of Appeal considered how a High Court Judge should approach an appeal from a hearing officer in the Trade Marks Registry. It was a trade mark case and therefore within the expertise of the Hearing Officer. Robert Walker LJ (with whom Buxton and Clarke LJJ agreed) reviewed several authorities including Re Grayan Building Services Ltd [1995] Ch. 241 and Biogen Inc v Medeva plc [1997] R.P.C.1. He said this: “[26] How reluctant should an appellate court be to interfere with the trial judge's evaluation of, and conclusion on, the primary facts? As Hoffmann L.J. made clear in Grayan there is no single standard which is appropriate to every case. The most important variables include the nature of the evaluation required, the standing and experience of the fact-finding judge or tribunal, and the extent to which the judge or tribunal had to assess oral evidence. [27]It is worth noting that Biogen was a case very close to the top end of the scale. It involved very complex biotechnology which was the subject of a lot of expert evidence given at a lengthy trial before a very experienced judge of the Patents Court. In the circumstances Lord Hoffmann's memorable reference to Renan was not (if I may respectfully say so) out of place. There are far fewer nuances to be picked up from a bundle of statutory declarations which contain a good deal of irrelevant or tendentious material and on which there is no cross-examination. [28]In this case the hearing officer had to make what he himself referred to as a multi-factorial comparison, evaluating similarity of marks, similarity of goods and other factors in order to reach conclusions about likelihood of confusion and the outcome of a notional passing-off claim. It is not suggested that he was not experienced in this field, and there is nothing in the Civil Procedure Rules to diminish the degree of respect which has traditionally been shown to a hearing officer's specialised experience. (It is interesting to compare the observations made by Lord Radcliffe in Edwards v Bairstow [1956] A.C. 14 at pp.38-39, about the general commissioners, a tribunal with a specialised function but often little specialised training.) On the other hand, the hearing officer did not hear any oral evidence. In such circumstances an appellate court should in my view show a real reluctance, but not the very highest degree of reluctance, to interfere in the absence of a distinct and material error of principle. [29]The appellate court should not treat a judgment or written decision as containing an error of principle simply because of its belief that the judgment or decision could have been better expressed. The duty to give reasons must not be turned into an intolerable burden: see the recent judgment of this court in English v Emery Reimbold & Strick Ltd (and two other appeals heard with it) [2002] EWCA Civ 605, April 30, 2002, para.19: “… the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision.” 11.Shortly after the judgment in REEF the Court of Appeal returned to the question of the correct approach to an appeal in Bud and Budweiser Budbräu Trade Marks [2002] EWCA Civ 1534; [2003] R.P.C. 25, again an appeal from a judgment of the High Court which was itself an appeal from a decision of a hearing officer in the Trade Marks Registry. The hearing officer, Mr Salthouse, had been required in particular to assess the distinctive character of a trade mark in issue. Sir Martin Nourse referred to REEF and then said (at [12]): “Moreover, I am unable to hold that Mr Salthouse was not entitled to take the view that he did. It is true that another hearing officer might, as indeed did the judge, have taken a different view. But it cannot be said that Mr Salthouse's view was one to which no reasonable hearing officer could have come.” 12.Lord Walker added this: “[52] Ultimately the issue on the first appeal is whether the deputy judge was right to discern two errors of principle in the hearing officer's approach, so opening the way for the deputy judge to substitute his own view. For the reasons which I have explained, I do not think that the hearing officer did make any significant error of principle which appears from his written decision. I do find his conclusion surprising and if this court had a free choice between the hearing officer's decision and that of the deputy judge I would unhesitatingly choose the latter. [53] However this court does not have a free choice, as Sir Martin Nourse has explained in his judgment. As Buxton L.J. said in Norowzian v Arks Ltd (No.2) [2000] F.S.R. 363 at 370: “… where it is not suggested that the judge has made an error of principle a party should not come to the Court of Appeal simply in the hope that the impression formed by the judges in this court, or at least by two of them, will be different from that of the trial judge.” The same principle applies to an appeal from a hearing officer to a judge of the Chancery Division. Although the hearing officer's decision is one which I find surprising, I do not consider that it can be described as clearly wrong.” 13.I draw from these judgments the following: (1)An appellate court must decide whether the court or tribunal below has made a distinct and material error of principle. If so, the decision will be overturned and the relevant point of dispute between the parties reconsidered. (2)The appellate court should not treat a judgment or decision as containing an error of principle simply because it could have been better expressed. (3)The judgment or decision below must have identified and recorded those matters which were critical to its conclusion. By implication a failure to do this can amount to an error of principle. (4)Absent an error of principle, there is no single standard to be applied in assessing whether the appellate court should interfere with the decision below. It is a multi-factorial assessment with the following being of particular relevance: (i) the nature of the evaluation required, (ii) the standing and experience of the fact-finding judge or tribunal and (iii) the extent to which the judge or tribunal had to assess oral evidence. (5)In making this assessment the appellate court should not interfere solely because it finds that a conclusion reached below is surprising or is one which the appellate court would not have reached. Neither such finding necessarily means that the court or tribunal below has made a material error of principle. (6)In the case of an appeal from a decision given by specialised hearing officer following a hearing without oral evidence, the appellate court should show a real reluctance, but not the very highest degree of reluctance, to interfere with the decision (absent an error of principle).