[2025] UKUT 115 (LC)

In the light of my decision on Ground 1, Ground 2 does not strictly arise for decision. If, as I have decided, the FTT was wrong to raise the Contractual Liability Issue on its own initiative and to give directions for its determination in the Application, the question of whether the Hearing was conducted in a way which was unfair and gave rise to the appearance of bias on the part of the FTT is not material. Assuming that such unfairness did occur, the FTT would still have been wrong in the Interim Decision, if such unfairness had not occurred.

It seems to me however that I should deal with Ground 2. The Appellant’s case in support of Ground 2 is a concerning one. It is alleged that there was judicial bullying of the Appellant’s counsel, Ms Traynor, by the FTT; specifically by Judge Latham. It is alleged that this created a situation where the Hearing was unfair and gave rise to the appearance of bias on the part of the FTT. In my view, these allegations need to be addressed, and a decision made on Ground 2.

It is convenient at this point to make reference again to one particular piece of evidence which I have concerning the Hearing. As I have said earlier in this decision, I have been provided with a copy of an email sent by Mr Allison, counsel for Cudweed at the Hearing, to Ms Traynor. The email was sent a few days after the Hearing. I do not think that it is necessary to quote the email. Essentially, Mr Allison was commiserating with Ms Traynor in relation to what Ms Traynor had, in the opinion of Mr Allison, had to endure at the Hearing, in terms of her treatment by the FTT. Without making any findings on the content of the email, the fact that Mr Allison considered it appropriate to send an email of this kind to his professional colleague, in the aftermath of the Hearing, seems to me to reinforce my conclusion that Ground 2 needs to be addressed.

So far as the relevant legal principles concerning unfairness and bias are concerned, it seems to me that they are conveniently set out in the judgment of Hildyard J in M&P Enterprises Limited v Norfolk Square (Northern Section) Limited [2018] EWHC 2665 (Ch). The case was concerned with an appeal against the decision of a judge, in the County Court, that the appellant was not entitled to a new lease of certain premises held on a business lease, pursuant to the provisions of Part II of the Landlord and Tenant Act 1954. As Hildyard J recorded in his judgment, the case was an unusual one in the sense that the appellant did not appeal against the first instance judgment itself or the findings therein. Rather, the appellant’s argument was that the process of the trial was so unfair as to result in the outcome of the trial being void.

In terms of the fairness of the conduct of a trial, Hildyard J explained what is required in the following terms, at [16]-[18] of his judgment:

“16.

The right to a fair trial, both under the common law and Article 6 of the European Convention on Human Rights (the House of Lords in Lawal v Northern Spirit Limited [2003] UKHL 35 having confirmed that there is no difference between the requirements in each) includes the right to a trial and decision conducted and made by a decision-maker free not only from actual bias but also from the appearance of bias. Justice most both be fair and be seen to be fair.

17.

Whether a trial was fairly conducted is a subjective assessment, necessarily made after the event and with the benefit of hindsight but without (of course) the benefit of any input from the relevant judge. In making that assessment, the reviewing court must bear in mind that (per Jonathan Parker LJ in The Mayor and Burgesses of the London Borough of Southwark v Maamefowaa Kofi-Adu [2006] EWCA Civ 281 at [142]):

"…within the bounds set by the Civil Procedure Rules, a first instance judge is entitled to a wide degree of latitude in the way in which he conducts proceedings in his court. However, that latitude is not unlimited. Ultimately, the process must always be the servant of the judicial function of dealing with cases justly (see the overriding objective expressed in CPR 1.1) …"

18.

It is a most important facet of the judicial function that the judge should always remain above the arena so as to maintain the detachment required of a judge. The judge must not take on the role of an advocate. If a judge intervenes in the process of the presentation and eliciting of evidence he runs the risk by such intervention of "descending into the arena", so as to become (per Lord Greene MR in Yuill v Yuill [1945] P 15 at 20)

"…liable to have his vision clouded by the dust of conflict."

As Hildyard J also explained, at [19]-[21], the necessity to remain above the arena had persisted into the modern age, notwithstanding the emphasis on active case management:

“19.

That necessity to remain above the arena persists notwithstanding the modern emphasis on active case management. To quote further from Jonathan Parker LJ's judgment in the Kofi-Adu case:

"Nowadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors…That said, however, it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel's submissions) must inevitably carry the risk so graphically described by Lord Greene MR. The greater the frequency of the interventions, the greater the risk; and where interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one."

20.

The same judgment continues in the next paragraph ([146]) as follows:

"It is, we think, important to appreciate that the risk identified by Lord Greene MR in Yuill v Yuill does not depend on appearances, or on what the objective observer of the process might think of it. Rather, the risk is that the judge's descent into the arena (to adopt Lord Greene MR's description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment and may for that reason render the trial unfair."

21.

This brings home the point that the assessment of unfairness is one for the reviewing court to make according to its perception as to whether there was a failure on the part of the judge to discharge his or her judicial function with the result that the trial was unfair. Actual unfairness in the way the trial was conducted, in other words, is the test. Kofi Adu is a case where that test was demonstrated to have been satisfied.”

Hildyard J then quoted at length, at [23], from the judgment of Black LJ (as she then was) in Re G (A Child) [2015] EWCA Civ 834, by way of illustration both of the generous ambit allowed to trial judges and yet also the sort of judicial conduct which may result in a finding that a trial was unfair.

Following this the judge proceeded to the question of the appearance of bias. The second aspect of the appellant’s case was that the judge’s conduct of the case at first instance was such as to give rise to a reasonable perception of a real risk of bias. Actual bias was not alleged. As such, Hildyard J identified the issue for determination as whether, on the facts, “a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.”.

Hildyard J went on, at [25]-[26], to elaborate on this test of apparent bias, in the following terms:

“25.

That formulation of the question incorporated Lord Hope's "modest adjustment" to the formulation of the test set out by Lord Goff in R v Gough [1993] AC 646 (which had been put forward by Lord Phillips MR in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700), replacing the reference in the earlier test to a "real danger" by a reference to "real possibility" of bias (R v Gough at p.670; and see In re Medicaments at p.711 A-B and Porter v Magill at [99]-[103]).

26.

This question of whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias, is to be taken in two stages. First, all the circumstances having a bearing on the suggestion that the Judge appeared to be biased must be ascertained; and second, it must then be determined whether those circumstances would lead the fair-minded and informed observer to conclude that there was a real possibility that the Judge was biased (see In re Medicaments, at p. 711 A-B; and Porter v Magill, at [102]-[103]).”

Hildyard J then proceeded to consider further the circumstances in which the conclusion of a real possibility of bias could be reached by a fair-minded observer. In terms of what is meant by bias Hildyard J explained the position in the following terms, at [30]-[31]:

“30.

As to what constitutes "bias", Ms Shea QC (on behalf of the Respondent) submitted that Lord Goff's definition in R v Gough (at page 670) and paragraph [99] of Porter v Magill above) remained apt: "bias" is the possibility that the decision-maker

"might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him".

31.

I was not taken by the parties to further authorities on the meaning of "bias", but in another very recent judgment in the Court of Appeal in another case of apparent bias, Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468, Leggatt LJ summarised (at [17]):

"Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case: see Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, para 28; Secretary of State for the Home Department v AF (No 2) [2008] EWCA Civ 117; [2008] 1 WLR 2528, para 53".”

Hildyard J addressed the interplay between actual unfairness and reasonable perception of bias in the following terms, at [32]-[33]:

“32.

Although for the purpose of analysis, and in conformity with the observation in Kofi Adu, I have sought to distinguish the two categories (actual unfairness and the appearance of bias), there is often an interplay between them: the symptoms of unfairness being also often likely to encourage a perception of bias. Put another way, the manifestations of a Judge's failure to discharge his judicial function may also be such that a fair minded and informed observer would conclude that there was a real possibility of bias.

33.

However, in that second context the court adopts the role or mantle of a fair-minded informed observer in order to assess whether, even if the evidence is not such as to require the Court to conclude that the judge did fail to discharge his judicial function so that the trial was unfair, nevertheless the way the trial was conducted would have led such an informed observer to conclude that there was a real possibility of bias.”

In setting out the above principles it is important to keep in mind that, in the present case, there was not at the Hearing, as such, a trial of the Contractual Liability Issue. The formal position is that the Contractual Liability Issue was adjourned for determination at a later date. It seems to me however that the principles identified in M&P Enterprises and in other cases, concerning fairness in the conduct of a trial and apparent bias, are capable of being applied to the Hearing and the Interim Decision, provided that one keeps firmly in mind that the position in the present case, at least in formal terms, is that the Hearing was not the trial of the Contractual Liability Issue.

As Mr Bates also reminded me the focus, in considering questions of bias and unfairness, is not upon the legal representative, but upon the client; in this case the Appellant. The argument in support of Ground 2 is that it is the Appellant which suffered loss, as a result of the alleged unfairness of the Hearing and as a result of the alleged appearance of bias.

The allegations of unfair conduct in the present case, leading to the appearance of bias, are summarised in the following terms, in the Appellant’s skeleton argument for the appeal. Each allegation or set of allegations is relied upon both individually and collectively:

The allegations of unfair conduct are, necessarily, said to have affected the decision making of the FTT, as a panel, in this case. I should however record that, as between the members of the FTT panel, the Appellant’s case was that it was Judge Latham who was directly responsible for the unfair conduct, not Mr Parkinson.

In considering the allegation of unfair conduct, I should start by acknowledging the constraints to which I am subject. I was not present at the Hearing. Nor is there a transcript of the Hearing, so that I can consider the exact words used at any particular point. Even if there was a transcript available, this would not be able to reproduce the atmosphere at the Hearing or the context or manner in which particular words were spoken. An example of this is the question put to Ms Traynor as to how long she had been appearing before the FTT. It is not clear precisely what the terms of the question were, but I see from the Response Notes that a question of this kind was put to Ms Traynor. For present purposes the relevant point is that a question of this kind may or may not be appropriate, depending upon the context and manner in which it is put. Depending upon context and manner, it may come across as a semi-jocular judicial response, along the lines of “come off it”, to a submission from counsel which is seen as unrealistic. Depending upon context and manner, it may come across as a comment intended to belittle counsel, by questioning their competence.

Beyond this, I am concerned with the determination of this appeal. I am not presiding over a complaint process, with the Appellant on one side as the complainant, and the FTT on the other side, as respondent to the complaint. I am not in the same position as the Judicial Conduct Investigations Office, which would be better placed to consider, as complaints, some of the complaints within Ground 2.

Bearing in mind the constraints on my role, I do not think that I am able to make a decision on all the allegations of unfair conduct relied upon by the Appellant. For a reason which I shall also explain, I do not think that this matters.

The allegations of unfair conduct on which I do not consider that I am able to make a decision, and the reasons why I do not feel able to make a decision, are as follows:

The reason why I do not think that this matters is because it seems to me that, for the purposes of reaching a decision on whether there was unfair conduct, leading to the appearance of bias, one can form a sufficiently clear picture of what happened at the Hearing simply by looking at the agreed or undisputed facts and, most important, by looking at the terms of the Interim Decision and the Interim Decision Directions.

A number of matters are clear, in relation to the way in which the Contractual Liability Issue was brought into the Application and dealt with at the Hearing:

What is also clear is a matter which I have already set out in my analysis of Ground 1. It is clear from the terms of the Interim Decision that the argument in favour of the Applicants, in relation to the Contractual Liability Issue, came from the FTT, not the Applicants. As I have said, the picture which emerges, both from the terms of the Interim Decision and from the evidence of the Notes and the Response Notes, is that the argument over the Contractual Liability Issue was an argument between the FTT, principally it appears by Judge Latham, and the Appellant, represented by Ms Traynor. As I have also pointed out, this picture is confirmed by the terms of the Interim Decision Directions, where the Appellant was required to go first with its statement of case. By that statement of case the Appellant was effectively required to produce a set of Particulars of Claim, pleading a contractual claim for the disputed Payments and answering the case articulated by the FTT on the Contractual Liability Issue.

So far as Ground 2 is concerned, it seems clear that substantial parts of the Hearing comprised argument, in relation to the Contractual Liability Issue, between (i) the FTT, principally it appears by Judge Latham, and (ii) the Appellant, represented by Ms Traynor. As Judge Latham confirms in his Response Note, the FTT was “insistent” that the Appellant, by Ms Traynor, should address the Contractual Liability Issue. Both the Solicitors’ Note and Counsel’s Note record Judge Latham’s frustration and exasperation with the stance taken by Ms Traynor. This is consistent with what I read in the Interim Decision, which also contains criticism of the stance taken by Ms Traynor, and consistent with what was said by Mr Allison in his subsequent email to Ms Traynor. Putting all of this together, I think that there is amply sufficient to establish, in relation to the Contractual Liability Issue, (i) that the argument at the Hearing was an argument between the FTT and Ms Traynor, and (ii) that this argument did, at least at times, become acrimonious, and (iii) that the FTT, at least by Judge Latham, became visibly frustrated and exasperated by Ms Traynor’s stance.

In the context of the allegations of procedural unfairness, leading to the appearance of bias, there is one other feature of the Interim Decision which I should highlight. As I have already noted, the only formal decisions made by the FTT, in relation to the Contractual Liability Issue, were the decision to adjourn the Contractual Liability Issue and the decision to issue the Interim Decision Directions. This is however only part of the picture. The reality is that the Interim Decision contains a detailed analysis of the Contractual Liability Issue. The outcome of that analysis was the expression of the following views by the FTT, at Paragraphs 46 and 59:

“46.

The preliminary view of the Tribunal is that the First Respondent has not demanded “the sums due” under Clause 3.3.3 in accordance with the terms of the lease. No liability arises on the Leaseholder to pay any sum until it becomes due the Superior Landlord under the Superior Lease. It will only become payable when the Management Company has approved a budget for the relevant service charge year and a demand has been made for an interim service charge.”

“59.

The Tribunal is required to consider whether the service charges levied by the Second Respondent for 2019 are reasonable. We asked Ms Traynor whether the Lead Applicant was obliged to pay any “sums due to the Superior Landlord under the Superior Lease” in respect of this service charge year. She was unable to answer. Our preliminary view is that neither the Lead Applicant nor any of the other Applicants were obliged to pay any service charge in respect of this service charge year. This Tribunal does not determine academic questions.”

It is of course important to acknowledge that these views were expressed as preliminary views. In Paragraph 60 the FTT went on to “regret” that it had been unable to determine the Contractual Liability Issue at the Hearing. Nevertheless, the views of the FTT on the Contractual Liability Issue emerge very clearly from the Interim Decision. Given the terms of the FTT’s analysis it is difficult to see how the FTT could have been expected to reach a different decision on a further hearing of the Contractual Liability Issue. It is part of one of the complaints of unfair conduct made by the Appellant that Judge Latham is alleged to have said that he considered the Contractual Liability Issue was the best point for the Applicants. As I have already noted, without a transcript of the Hearing, I do not think that I am in a position to decide whether this was in fact said. Whether or not this was said in terms during the Hearing, it seems to me to emerge very clearly, from the FTT’s analysis of the Contractual Liability Issue in the Interim Decision, that this was the view of the FTT.

I turn now to the question of whether there was unfairness, leading to the appearance of bias, in the FTT’s conduct of the Hearing. On the basis of the matters which I have set out above, where it is clear what occurred, it seems to me that the answer to this question is also clear. I regret to say that, in the very particular circumstances of this case, I have reached the clear conclusion that the FTT’s conduct of the Hearing was unfair, and gave rise to the appearance of the bias. My reasons for this conclusion are as follows.

It is convenient to start by identifying what should, in my view, have happened at the Hearing if it is assumed, contrary to my decision on Ground 1, that it was appropriate for the FTT at least to raise the Contractual Liability Issue at the outset of the Hearing. On this hypothesis it seems to me that the FTT should, when raising the point, have inquired of the Applicants whether they wished to pursue the Contractual Liability Issue. It was for the Applicants, not the FTT, to pursue the Contractual Liability Issue. If the answer to that inquiry was no, the Contractual Liability Issue should have ended there. If the answer was yes, the Applicants needed, in my view, to make an application to amend their statement of case in order to plead their case on the Contractual Liability Issue. This in turn engaged the question of whether permission should be granted for such an amendment, which was a question on which both the Appellant, as the party most directly affected by the amendment, and Cudweed, as the other party to the Application, were entitled to and needed to be heard. Given that the FTT had the Reasonableness Issue to deal with in any event, the fair and sensible course would have been to hear the application to amend on the second day of the Hearing.

Assuming, contrary to my decision on Ground 1, that it would have been open to the FTT to grant permission to amend, after hearing the parties, the FTT would, as part of its consideration of the application to amend, have had to consider the case management consequences of the grant of such permission.

The case management consequences would have been problematic. It would have been unfair to require the Appellant to answer substantively the Contractual Liability Issue at the Hearing. The Applicants had not pleaded their case on the Contractual Liability Issue. The Appellant had not been expecting to have to deal with the Contractual Liability Issue, prior to the Hearing, and would have had no opportunity to take advice, consider its position, and formulate its own case. In particular, there had been no opportunity for the Appellant to investigate and formulate a case on the factual issues which were or might be raised by the Contractual Liability Issue. Bearing in mind these difficulties, it seems inevitable, on the basis of the hypothesis I am considering, that the hearing of the Contractual Liability Issue would have had to be adjourned, with appropriate case management directions being given. These case management consequences would, in and of themselves, have provided powerful reasons for refusing the application for permission to amend.

Beyond this, and again in terms of case management, an adjournment of the Contractual Liability Issue to a separate hearing, leaving the Reasonableness Issue for determination on its own, would not have been an ideal solution for another reason. Adjournment of the Contractual Liability Issue to a separate hearing would have created the same problem which now exists in relation to the decision of the FTT on the Reasonableness Issue. As matters actually stand, the FTT has apparently made its decision on the Reasonableness Issue; see Paragraph 65. The FTT has not however released that decision, because it may be rendered academic by the decision of the FTT on the Contractual Liability Issue; see Paragraph 59. On the hypothesis which I am currently assuming, the FTT would have been confronted by the same problem of what to do about its decision on the Reasonableness Issue, given the adjournment of the Contractual Liability Issue. The FTT would either have had to issue its decision on the Reasonableness Issue, subject to the proviso that it might be rendered academic by its subsequent decision on the Contractual Liability Issue, or the FTT would have had to determine, but not release its decision on the Reasonableness Issue, pending its decision on the Contractual Liability Issue. In the further alternative, and least satisfactory of all given the intended purpose of the Hearing, the FTT could have adjourned the hearing of the Reasonableness Issue, pending its decision on the Contractual Liability Issue. Again, these further case management difficulties would, in and of themselves, have provided powerful reasons for refusing the application for permission to amend.

By way of reminder, the hypothesis I am currently considering is the question of what should have happened at the Hearing if it is assumed, contrary to my decision on Ground 1, that it was appropriate for the FTT at least to raise the Contractual Liability Issue at the outset of the Hearing. Even on that hypothesis, and if it assumed that the Applicants had made an application for permission to amend, so as to pursue a case on the Contractual Liability Issue, it seems doubtful that the FTT would have been correct to grant permission to amend. Even if however, it is assumed that the FTT would have been entitled to grant permission to amend, it will be noted that the grant of such permission to amend would have required, as a minimum, the hearing of the Contractual Liability Issue to be adjourned, with appropriate case management directions being given.

Returning from the hypothesis which I have been considering to the actual events at the Hearing, the contrast is obvious:

Applying the principles which govern the question of whether a trial has been conducted fairly, as set out by Hildyard J in M&P Enterprises, and for the reasons which I have set out above, it seems to me that the present case was one where the Hearing was not conducted fairly. I accept the submission of counsel for the Appellant that, in this case, the FTT crossed a line and allowed its interest in an unpleaded issue to get the better of it. It seems to me that the FTT descended into the arena, and became the advocate of the Applicants’ case on the Contractual Liability Issue. This rendered the Hearing unfair.

It does not necessarily follow from this conclusion that the Interim Decision and the Interim Decision Directions should be set aside. If one takes Ground 2 as a free standing ground of appeal, and if one disregards my decision on Ground 1, the question which would arise is whether the unfairness which I have found in the Hearing has the consequence that the Interim Decision and the Interim Decision Directions fall to be set aside. The one does not necessarily follow from the other. In most cases where unfairness is alleged in a trial, the argument of the appellant is that the unfairness tainted the hearing in such a way as to affect the outcome of the hearing. The complaint may be that important evidence was not heard, or was stifled or distorted. The complaint may be that submissions were not the subject of proper consideration. Where complaints of this sort are made out, the usual, and unfortunate consequence is that there has to be a re-hearing of the relevant trial. In the present case however all that the FTT formally decided was that the Contractual Liability Issue should be adjourned subject to the Interim Decision Directions. If it is assumed, contrary to my decision on Ground 1, that the FTT did not go wrong in concluding that the Contractual Liability Issue should be adjourned to a subsequent hearing, subject to the Interim Decision Directions, it is difficult to see why the fact that the Hearing was conducted in an unfair manner should result in the formal decisions of the FTT being set aside, It would be reasonable to assume that the formal decisions would have been the same, even if the FTT had conducted the Hearing in a fair manner.

In the present case however, and if Ground 2 is taken as a free standing ground of appeal, it seems to me that the formal decisions of the FTT do fall to be set aside, regardless of my decision on Ground 1. I say this because the Appellant’s complaint goes beyond a complaint of unfairness. It is submitted that this unfairness gave rise to an appearance of bias on the part of the FTT.

A definition of bias is to be found in the judgment of Leggatt LJ (as he then was) in Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468, at [17], quoted by Hildyard J in M&P Enterprises:

“Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case:”

Applying this definition of bias, the question which I have to ask myself, taking into account all of the circumstances having a bearing on the suggestion that the FTT appeared to be biased, is whether a fair-minded and informed observer, having considered those facts, would conclude that there was a real possibility of bias. On the basis of the analysis of the Hearing and the conduct of the FTT which I have set out above, it seems to me that there can only be one answer to this question. In my view a fair-minded and informer observer, having considered all the relevant facts, would have concluded that there was a real possibility of bias. This conclusion seems to me to follow inevitably both from what happened in the Hearing and from the Interim Decision itself. I have already explained the way in which the FTT descended into the arena and became the effective advocate of the Applicants in relation to the Contractual Liability Issue. There is also however the Interim Decision itself which, as I have explained, contains what comes across as a concluded analysis and determination of the Contractual Liability Issue by the FTT. In these circumstances, and by reason of this apparent bias, it seems to me that the Interim Decision and the Interim Decision Directions cannot stand.

This decision is a decision that the Interim Decision and the Interim Decision Directions cannot stand and fall to be set aside, on the basis of Ground 2. The question which would then follow is what decision I should make, consequential upon the setting aside of the decisions of the FTT. Given my decision on Ground 1, this question does not strictly arise. I have already decided, on the basis of Ground 1, that the Interim Decision and the Interim Decision Directions must be set aside and that these decisions should be re-made as a decision that the Applicants are not permitted to pursue a case on the Contractual Liability Issue in the Application. I have also decided that the case should also be remitted to the FTT with a direction to the FTT to issue its decision on the Reasonableness Issue and deal with any other consequential matters arising from its decision on the Reasonableness Issue.

I should however explain what the result would have been if I had been dealing with Ground 2 alone. On this hypothesis the outcome of the appeal, from the point of view of both parties to the appeal, would have been a good deal less satisfactory. The reason for this is that if I had been dealing with Ground 2 alone, it would not have followed, from my decision that the Interim Decision and the Interim Decision Directions should be set aside, that the Applicants could not pursue the Contractual Liability Issue. This would have remained for argument, at a hearing before the FTT untainted by any unfairness and without any appearance of bias. On this hypothesis it seems to me that the case would have had to be remitted to the FTT, inevitably to a differently constituted FTT, for the FTT to re-address the question of whether the Contractual Liability Issue should be brought into the Application. Alternatively, and assuming no objection from the parties, I would have had to decide this question for myself.

As matters have turned out, the somewhat inconvenient consequences which would have resulted from a decision on Ground 2 alone do not have to be addressed.