[2024] UKUT 14 (LC)

I can deal very briefly with Ground 2. The hypothesis which governs Ground 2 is that Zarb is not binding authority on the construction of paragraph 5(4)(c). On this hypothesis I cannot see that the Judge went wrong in what he said in Paragraphs 52 and 53 or in his decision on the construction question. On this hypothesis I cannot see that the situation was one where the Judge, by declining to follow Arden LJ’s construction of paragraph 5(4)(c), failed to give adequate weight to Zarb. If Zarb was not binding authority it seems to me that it was a matter for the Judge to decide what weight to give to Zarb. If the Judge found himself in disagreement with Zarb, as he did, it seems to me that the Judge was entitled to decide the construction issue for himself. I cannot see, on the hypothesis which governs Ground 2, that the Judge committed an error of law in making his own decision on the construction question.

If therefore Ground 2 had been a live ground of appeal, I would have dismissed the appeal on Ground 2.