“for the purposes of item 2 of the excepted items ‘confectionery’ includes chocolates, sweets and biscuits; drained, glacé or crystallised fruits; and any item of sweetened prepared food which is normally eaten with the fingers”
“Often a statutory test will require a multi-factorial assessment based on a number of primary facts. Where that is so, an appeal court (whether first or second) should be slow to interfere with that overall assessment—what is commonly called a value-judgment.”
“…specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la verité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation….Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation.”
“Where a Tribunal has taken into account all relevant factors, and has not been influenced by impermissible factors, a court will only exceptionally entertain a challenge based on the Tribunal’s evaluation of those factorsfor the reasons given by Baroness Hale [in AH (Sudan)]. The challenger would have to show the decision was perverse and in this case there is simply no foundation for such a challenge. The tribunal was not obliged to accord a separate grading for each factor. It was entitled, as it did, to look at the matter in the round.”
“So one can put the test for an appeal court considering this sort of classification exercise as simply this: has the fact finding and evaluating Tribunal reached a conclusion which is so unreasonable that no reasonable Tribunal, properly construing the statute, could reach?”
“59. On the question of similarity, Mr Cordara [counsel for the appellant] was critical of the Tribunal for saying that it did not regard the shape of Regular Pringles or the size of the packaging as particularly important factors. But those are classic examples of matters which were for the judgment of the Tribunal, and their view cannot be said to have been perverse. Otherwise, Mr Cordara did not suggest that the Tribunal either took into account any matters which it ought not to have taken into account or failed to take into account any matters which it ought to have taken into account. His primary criticisms are that the Tribunal failed properly to evaluate the various factors, because it failed to weight or grade them appropriately, and that it failed to give adequate reasons for its conclusion (emphasis added)”
“In my judgment, this submission goes to the weight to be attached by the primary decision-maker to certain matters in relation to others. While the categorisation of a fact as probative of a particular issue is a question of law, the question whether it is so probative is a question of fact. On an appeal on a question of law, it is well established that an appellate tribunal whose function is restricted to questions of law cannot revisit questions of fact unless no reasonable judge could have come to that conclusion. Mr Scorey [counsel for the taxpayer] has not contended that that test applied in relation to any of these countervailing factors: there is no cross appeal in this Court. Therefore, the existence of these countervailing factors cannot determine the outcome of this appeal.”
“I have no doubt that the categorisation of fact in the present case constitutes a question of law which founds this Court's jurisdiction and that of the UT (see paragraph 77 above). (Moreover, if the UT found an error of law, it had jurisdiction to substitute its own decision: see Pendragon). There are, however, as appears from paragraph 77 above, limits to this: how the tribunal applies any categorisation of the fact to the circumstances of a particular case is likely to be a question of fact and not of law. For the reasons given in this paragraph, this Court is entitled to ask whether the UT was correct to evaluate the facts in the way that it did, namely as indicating normal market transactions, or whether, as HMRC contend, that conclusion was itself in error.”
“…If each paragraph of a long judgment, involving the analysis of a wide range of facts following substantial evidence, is examined with a fine toothcomb, it may often be possible to find some factual error or lack of clarity, or to identify particular facts which were arguably relevant but are not referred to or assessed. If such flaws meant that the decision must be quashed as erroneous in law, little would be left of the cautionary words of Evans LJ in Georgiou. In our judgment, having regard to the wording of s12(2) of TCEA which we have emphasised and to the authorities we have discussed, even if we find some errors regarding any factual matter considered, or which should have been considered, in the decision below, such that any tribunal properly instructed would have taken that matter into account, or left it out of account, only if that matter is material to the overall factual conclusion is that a basis for setting the decision aside. The same approach applies if the reasoning expressed in support of a particular factual finding is unclear or deficient.”
“At least in case of the present type, I find it difficult to envisage circumstances in which the Upper Tribunal could properly leave the decision of the FTT to stand, once it is satisfied that the error of law might (not would) have made a difference to that decision. As a taxpayer, Mr Degorce is entitled to be taxed according to the law, and if an error of law is detected in the FTT’s decision, which is material in the sense I have mentioned, justice will normally require nothing less than that the decision is set aside.”
“Take as an example the proposition that the decision must take into account relevant considerations and leave out irrelevant considerations. In a decision involving the weighing of many complex factors it will always be possible to point to some factors which should arguably have been taken into account or left out of account; even if they should have been, the court should not intervene unless it is convinced that this would have resulted in the decision going the other way.”
“Healthy food? 174. Mr Simpson [for the appellant] said that the customers for the Organix Bars were health conscious, and that the Organix Bars were marketed as a healthy alternative to confectionery. Mr Watkinson said this was irrelevant. He relied on Kalron, which considered the VAT status of smoothies made from liquified fruit and vegetables. In that judgment, Warren J first set out the excepted items under the heading of “food” in Group 1 of Sch 8, followed by the overrides to the exceptions and the Notes, and then said: “[9] It is difficult to detect any policy behind these detailed exceptions and overrides. Mr Thomas (who appears for Kalron) claims to identify a policy which is to exclude what he calls junk food… [10] It is impossible, in my judgment, to spell out of the structure and content of Group 1 a policy such as Mr Thomas submits can be detected. There are plenty of ‘junk’ foods which do not fall within the exceptions; and there are healthy drinks which are within the exception, for instance, freshly squeezed orange juice.” 175. I respectfully agree. I also agree with the FTT in Corte Diletto when they said at [100]: “The healthiness or otherwise of a product has no bearing on its VAT classification. Zero-rating depends solely on whether a product has sufficient characteristics to fall within one of the Groups in schedule 8 when applying the [statutory] tests…The most sugary, cream filled, chocolate covered cake will still be zero rated. The healthiest of low sugar, low fat confectionery will still be standard rated.” 176. I therefore agree with Mr Watkinson that whether or not a product is healthy rather than “junk” food is irrelevant when carrying out the multi-factorial test necessary to decide a product’s VAT status, and I have not taken it into account below”. “[9] It is difficult to detect any policy behind these detailed exceptions and overrides. Mr Thomas (who appears for Kalron) claims to identify a policy which is to exclude what he calls junk food… [10] It is impossible, in my judgment, to spell out of the structure and content of Group 1 a policy such as Mr Thomas submits can be detected. There are plenty of ‘junk’ foods which do not fall within the exceptions; and there are healthy drinks which are within the exception, for instance, freshly squeezed orange juice.” “The healthiness or otherwise of a product has no bearing on its VAT classification. Zero-rating depends solely on whether a product has sufficient characteristics to fall within one of the Groups in schedule 8 when applying the [statutory] tests…The most sugary, cream filled, chocolate covered cake will still be zero rated. The healthiest of low sugar, low fat confectionery will still be standard rated.”
“this aspect of the case takes on less significance, I think, given my rejection of Mr Thomas’[counsel for the taxpayer] submissions in relation to the policy of the inclusion and specification of the Excepted items in Group 1 for the reasons already given”
“Mr Thomas then submits that the meaning of beverage must be construed with regard to the purpose of the statutory provision in which it is contained. I agree with that insofar as a clear purpose can be ascertained. But I reject, for the reasons already given under the heading "A preliminary point", his submission that the exception is to exclude items of little or no nutritional value”
“..in its ordinary usage, confectionery is limited to products which can be described as sweet but I cannot see why such sweetness may not be inherent in the principal ingredient in its natural state but must be added by some further sweetener with which it is mixed or compounded…it appears that…the Tribunal erred in law in considering those two elements [cooking and addition of sweetener] were essential to the categorisation of these fruit bars as confectionery”