03/02/2020 Stocker v Stocker [2019] UKSC 17 (3 April 2019) 58. Of course, a reviewing court should be slow to disturb a finding of a trial judge as to the meaning of a claimed defamatory statement. This is mainly because it is a finding of fact, whereas the construction of a written contract is a question of law. It is well settled, outside the field of defamation, that an appellate court will not interfere with a finding of fact by a first instance judge merely because it takes a different view of the matter. The degree of restraint which the appellate court will exercise will depend upon whether the judge had the advantage of seeing and hearing the witnesses, whether the finding is an inference based upon the review of a large mass of primary factual material, and whether the finding is in the nature of an evaluation involving mixed fact and law. The following passage from the judgment of Lord Reed in McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477, paras 3-4 sufficiently covers the ground: “3. The reasons justifying that approach are not limited to the fact, emphasised in Clarke’s case and Thomas v Thomas , that the trial judge is in a privileged position to assess the credibility of witnesses’ evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer (1985) 470 US 564, 574-575: ‘The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be ‘the ‘main event’ … rather than a ‘try-out on the road’’ … For these reasons, review of factual findings under the clearly erroneous standard - with its deference to the trier of fact - is the rule, not the exception.’ … 4. Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235, para 14: ‘The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.’” 59. As to whether the appellate task needs to be described as one requiring caution, as Simon LJ suggested, I am doubtful. I would prefer to say that it calls for disciplined restraint. Certainly, the https://www.bailii.org/uk/cases/UKSC/2019/17.html 15/16