Last Thursday, after a year of virtual advocacy exercises, I took part in my first ever in-person moot. The Kingsland Cup and Prize Moot is run annually by Francis Taylor Building. Named in honour of Lord Kingsland QC, it covers a wide range of public, environmental and European law topics. Participants tackle two moot problems over the course of three rounds, with a paper sift of skeleton arguments followed by two ‘live’ rounds.

The 2021 final took place last week and my teammate, Tom Lambert, and I were fortunate enough to be declared the winners after a closely matched competition with an excellent team from the University of Oxford. It was judged by Sir Keith Lindblom, Senior President of Tribunals, and Professor Alison Young, Sir David Williams Professor of Public Law at the University of Cambridge. I am extremely grateful to both of them for giving up their time and to Esther Drabkin-Reiter and Michael Brendan Brett from FTB for organising this year’s competition and setting two fascinating and finely balanced moot problems.

The first round and semi-final involved a highly technical planning law problem, focusing on whether a Lawful Development Certificate (LDC) can be granted under s. 191 Town and Country Planning Act 1990 (“the 1990 Act”) to certify that a site has ‘nil’ planning use, and the circumstances in which a previous use may be said to have been abandoned. The claimant was a local authority, which had refused to grant an LDC to a multiplex cinema chain to certify that a recently acquired site had nil use. That refusal had been overturned on appeal by a planning inspector, who decided that s. 191 gave him the power to grant an LDC for nil use and that he was justified in granting one in the present circumstances, on the basis that the previous use of the site as an independent cinema had been abandoned. The multiplex chain appeared in the proceedings as an interested party but was not represented by counsel.

The claimant brought a judicial review on two grounds:

1. The Decision by the Inspector was unlawful on the basis that there was no power to grant a Lawful Development Certificate under s. 191(1)(a) of the 1990 Act for a ‘nil’ use.

2. The Inspector erred in law in concluding that the use had been abandoned.

For the first round, teams had to submit two skeleton arguments, one for the claimant and one for the defendant. Four teams were then selected to go forward to the semi-final, which took place on Zoom in April this year, with the claimant and defendant roles in each semi-final being assigned at random. Tom and I were representing the claimant local authority. Alongside a team from the Inns of Court College of Advocacy, we battled our way through some significant technical difficulties to present our submissions.

On Ground 1, which I took, the case ultimately turned on the somewhat esoteric semantic question of whether the phrase “any existing use of buildings or other land” in s. 191(1)(a) of the 1990 Act extended to cover nil use. Could “any” also encompass “none” or did it have to refer to a positive use? I was both gratified and slightly disappointed when Sir Keith Lindblom, who also judged our semi-final, beat me to the King Lear quote I had planned to include in my summing up (“nothing will come of nothing”) in one of his interventions. One of our central submissions was that, since planning enforcement action cannot be taken against a site that truly has nil use, the only possible reason the interested party could have had for wishing to obtain an LDC was to circumvent the ordinary planning process and the policies in the Local Plan designed to prevent the loss of grassroots leisure and entertainment venues.

Ultimately, although he reserved judgment, Sir Keith indicated that he was inclined to agree with the claimant’s position that the provisions of s.191 did not extend to nil use. This was primarily due to the plain meaning of the words in the statute but also because of the impossibility of enforcement action against a site that has truly been abandoned and has no planning use. 

We advanced to the final and out of my comfort zone. Having previously worked in housing policy, I was at least somewhat familiar with planning legislation and policy, even if the provisions around Lawful Development Certificates were new to me. The problem for the final, however, involved a range of legal issues with which I was less familiar, including the relationship between Article 8 and Article 10 of the European Convention on Human Rights, the nature of proportionality review and whether or not consistency should be accepted as a freestanding ground of judicial review. Perhaps inspired by a certain viral parish council meeting earlier this year, it was an appeal to the Supreme Court concerning the decision by a District Council Monitoring Officer to sanction a parish councillor for breaking the parish council Code of Conduct with an unruly outburst in an online meeting.

Though clearly inspired in part by the Jackie Weaver saga, the facts of the case and the legal issues raised were actually most similar to those in R (on the application of Robinson) v Buckinghamshire Council [2021] EWHC 2014 (Admin), where the High Court quashed the decision of a Deputy Monitoring Officer to sanction Cllr Clive Robinson over comments he had made about fellow councillors, which were said to be in breach of the PC Code. The court in Robinson held that the sanction represented a disproportionate infringement on Mr Robinson’s right to freedom of Expression under Article 10 ECHR, and therefore a violation of s. 6 of the Human Rights Act 1998.

The case in the Kingsland final centred on whether or not the decision to uphold a complaint against a councillor for saying “You do not have the authority to do this, Alice Tinker! You can’t just expel them from the meeting, face up to the accusations of incompetence, you big girl’s blouse!” was a similarly disproportionate interference with his Article 10 rights, and whether it mattered that a similar complaint against Ms Tinker had been decided differently. The grounds of appeal were:

1. The judge at first instance erred in finding that the speech in question was not supported by case law on protection of political speech and/or that the decision to uphold the complaint was proportionate.

2. The judge erred in finding that she could not consider consistency as a freestanding ground of review.

As the final was in person, each team was required to bring two hard copies of the bundle, one for ourselves and one for the judges. With nearly 500 pages of authorities between us, this meant that each team arrived with around 1000 neatly tabulated pages, which certainly helped add to the illusion that we were taking part in a real hearing. 

This time, Tom and I were acting for the respondent and again I took Ground 1. I submitted that the Monitoring Officer was correct to decide that the quoted portion of Cllr Trott’s outburst was not political speech and should not therefore be afforded enhanced protection under Article 10, drawing heavily on the judgment in Heesom v Public Service Ombudsman for Wales [2014] EWHC 1504 (Admin), [2014] 4 All E.R. 269, which distinguished between “matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others” on the one hand and “gratuitous personal comments” on the other, and held that the former would be classed as political speech, while the latter would not [38(v)]. I characterised Cllr Trott calling Cllr Tinker a “big girl’s blouse” as a gratuitous personal comment.

I also submitted that the sanction was justified on the basis of the qualifications to the right to free expression in Article 10(2) ECHR, in light of the need to balance Cllr Trott’s Article 10 rights against Cllr Tinker’s right to a reputation under Article 8.  Finally, I submitted that proportionality is not a substitutionary review, and an appellate court should therefore uphold the decision of a lower court, provided it is satisfied that the lower court carried out the balancing exercise correctly, even if it might itself have come to a different conclusion on the facts. On this last point, I deployed a cricketing analogy, likening the process of proportionality review in an appellate court to a scenario in which hawk-eye indicates that a DRS review of an LBW decision remains “umpire’s call”.

Our opponents, Daniil Ukhorskiy and Amy Gregg, made some excellent arguments drawing on the jurisprudence of the European Court of Human Rights, about the difficulty and undesirability of disaggregating comments made in the heat of the moment and separating them into categories of political and non-political speech. Tom was extremely patient with me as I dealt with numerous judicial interventions on the plausibility of such disaggregation and overran my allotted time, leaving him with only ten minutes or so to make his submissions on whether consistency should be accepted as a freestanding ground of judicial review.

On Ground 2 the key questions were whether or not the case law indicates that consistent administration can be viewed separately from the doctrines of irrationality and legitimate expectation, and whether it would be desirable for it to stand alone as a ground of review in its own right. Counsel for the appellant submitted that the Supreme Court’s judgment in R (on the application of Gallaher Group Ltd and ors) v The Competition and Markets Authority [2018] UKSC 25, [2019] A.C. 96 was only authority for the fact that equal treatment is not a distinct principle of administrative law. It did not address the issue of consistent administration — that is the obligation for public authorities to apply their policies in a consistent way. Tom submitted in response that such a fine distinction would create unnecessary confusion in the law and that there was, in any event, no need to draw it. Decisions which might fall foul of a doctrine of consistent administration would probably be overturned anyway on the basis of irrationality or the frustration of legitimate expectations.

The judges deliberated for around fifteen minutes and, while they again reserved their judgment, they suggested on Ground 1 that the appellant’s position on the disaggregation of intermingled comments would likely be accepted, though they agreed that the role of the court in a proportionality review was not to remake the decision. On Ground 2, Sir Keith questioned whether it really mattered if consistency was officially accepted as a freestanding ground of review or not, since the facts of the case clearly indicated that Cllr Trott was not treated fairly by the Monitoring Officer and the decision might therefore have been deemed to be unsound on that basis. However, he did conclude by suggesting that the law should not be like mushrooms (a running theme throughout counsel’s submissions) and multiply grounds of review excessively.

Had this been a real case, we likely would have lost, since the judges indicated that they probably would have allowed the appeal, at least on Ground 1. Fortunately for us, however, mooting is not real life and we were declared the winners by an extremely narrow margin. Competing in this year’s Kingsland Cup has been a wonderful experience. It has taught me a great deal, both about the relevant areas of law and about online and in-person advocacy. I would highly recommend the competition to anyone with an interest in public law.