ULS2622 Mooting Tri 3, 2019/2020

1. INTRODUCTION TO MOOTING
A. Getting Started

Look at the area of law in a law textbook. There are a number of general textbooks on legal
subject areas which are useful to get you started. You have come across all these textbooks
during your studies. E.g. contract la- Visu Sinnadurai, Chessihe & Fifoot, Cheong May Foong
etc.

Read the chapter or section on it, and find out the names of some relevant cases, as well as
getting a picture of what the case is about and what the real issues to be argued on.

Use the most up to date version of any textbook. Information from a textbook more than five
years out of date should be double checked to see whether any more recent cases have affected
the legal position.

Also up to date precedents – at least 5 years’ back

B. Working Out Your Main Argument

After studying the textbook, you should now get an idea of what the case is about. So work out
exactly what you are trying to argue, so that you can begin to identify and find authority for
points in your favour.

You should have been informed at the time of receiving the moot problem whether you are the
appellants or respondents

Appellants, Court of Appeal case:

You are appealing against the decision made in the High Court. The High court judgment is
often stated in the problem, and you must argue against the reasons given in that judgment. You
are usually helped by a statement of the grounds of appeal. These are the points which you must
argue.

What often wins the case is sound reasoning, and disguised policy arguments. The Supreme
Court is in theory bound by its own previous decisions, but can depart from them if the earlier
cases are carefully distinguished on their facts.

Appellants, Federal Court case:

You are appealing against the decision of the judge in The Court of Appeal.. You must argue
against the reasoning of the judges, and support the grounds of appeal.

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Respondents, Federal Court case:

You must respond to the grounds of appeal put forward by the appellants, as your aim is to have
the Court of Appeal judgment reaffirmed. It is usually necessary to argue the opposite of that
stated in the grounds of appeal.

If any Court of Appeal judgment is given in the moot problem, you must find authority to support
the arguments made by the Court of Appeal judge.

Respondents, Court of Appeal case:

You must respond to the grounds of appeal put forward by the appellants, as your aim is to have
the decision of the original court reaffirmed. You must argue the opposite of that stated in the
grounds of appeal.

Any decisions in the Federal Court which support the first instance decision are likely to be
binding on the Court of Appeal, and respondents should carefully argue why such authorities
should be applied in this case.

NOTE: Appellants/Respondents/Claimants/Defendants

Some confusion will inevitably arise over terminology at this point. The claimants (referred to in
older cases as the plaintiffs) are the party which initiated the original action, but are not
necessarily the appellants. Here is an example.

1. Smith sues Jones over negligent work.

o Smith = Plaintiff
o Jones = Defendant
2. Smith wins. Jones appeals against the decision to the Court of Appeal
o Smith = Plaintiff and Respondent
o Jones = Defendant and Appellant
3. Jones wins. Smith appeals to the Supreme Court.
o Smith = Plaintiff and Appellant
o Jones = Defendant and Respondent

It is often useful to write down exactly what you are arguing.

e.g. If a ground of appeal is:

The weapon did not constitute an 'offensive weapon' under s.1(4) of the Prevention of Crime Act
1953.
And you are the respondents, your argument will be
The weapon did constitute an 'offensive weapon' under s.1(4) of the Act.

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C. Splitting The Work

Once you have identified the arguments to be made, it is possible to split the work between the
two advocates, and work alone. It is, however, very beneficial to work together, and have a
working knowledge of each other’s arguments for when it comes to the moot.

Usually, a problem will have two grounds of appeal. If there are more, you will have to decide
how to split them. At this point you will have to decide who will be lead, and who will be the
junior advocate for the moot. The junior generally has less speaking time, but, in the case of the
respondents, gets the final word.

It is sensible for the junior to take the ground which appears to be the least work, or to take only
one out of three grounds. If, after sharing the load, it appears that the problem has been unfairly
split, it is important to rectify this, or you may find that later, insufficient speech time will be
devoted to a particular point in the moot.

D. Supporting an Argument

There are a number of ways to support a legal argument:

1. Authority
2. Reason and logic
3. Policy arguments

By far the most important of these is the first. Indeed, reason and logic as well as policy
arguments should be used so subtly that the judge is not aware of their existence. Any legal
argument should be firmly founded in authority.

The novice should concentrate solely on use of authority. Authorities can be (in approximate
order of importance)

1. Federal Court Cases

2. Court of Appeal Cases

Mooters should always refer to case law carefully.

If one of the main English cases appears to be based on an overseas authority, then it is probably
acceptable to refer to it. It may be prudent to introduce the case by saying 'although not binding
on this Court it may be of assistance to examine the judgment in...'

A note must be made on the use of textbooks and articles. Use textbooks rarely. A textbook may
only be used if it is a leading authority on the subject, as defined by practising lawyers, not
lecturers. Your course textbooks (if you are a lawyer) will almost certainly not be considered

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good authority. Practitioner texts which could be considered can often be identified because they
usually have the author's name as part of the title! Examples include:

 Snell's Equity
 Chitty on Contract
 Emmet on Title
 Megarry's Manual of the Law of Real Property
 Clerk and Linsell on Torts
 McGregor on Damages

The way around this is to find out which case the textbook writer is using to support their own
arguments (there generally is a case) and quote from that.

Parliamentary debates and the debates of standing committees can only be used in very specific
circumstances where a statute or statutory instrument is ambiguous, obscure or absurd. See
Pepper -v- Hart [1993] 3 WLR 1032, which is the first case where the debates were allowed to
be considered.

Everything you put to the judge in a speech should be supported by some sort of legal authority.
The judge is liable to ask, quite rightly, 'What is your authority for that counsel?' You cannot
make up arguments out of thin air. The only possible exceptions to this are a simple logical
statement arising from the facts stated, or a comment on policy.

E. The Facts of the Case Are Not in Dispute

No matter how little you dislike the fact that Johnny X was found to be dishonest, if it states this
in the facts of the case, and it is not disputed in the points of appeal, you cannot argue against it.
The appellate court does not have access to the evidence which was in front of the original court,
and so cannot dispute the findings it made on the basis of that evidence.

The moot argument is on the law, not on the validity of any factual evidence.

F. Student Activities (WEEK 1)

1. Form your Moot Team from within your lecture section (L2)

2. Members of a Moot Team should also be registered in the same tutorial group for practical
training sessions.

3. Determine your role in the team (Lead Counsel/ Co-Counsel)

4.Register your team online via the google link uploaded in MMLS (Please provide all the details
required in the form)

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5. Please use your official MMU student email account for all correspondence/ online
registration / linkage to on line lecture and tutorial sessions.

6. Kindly adhere to the timelines/ deadlines set by the Lecturer/Tutor.

7. Please download and read the Mooting Rules 2020

8.Please download and read the Moot Problem 2020

9.Please download and read the programme materials which have been uploaded in MMLS

10. Start identifying questions for problem clarification.

11. As mooting is a formal exercise in courtroom etiquette and advocacy students are strongly
encouraged to be in formal attire (Black &White [if available]/ Office Attire) for the on line
classes which will include video conferencing/ presentations. This will help to create a more
conducive environment to conduct the online training in a virtual courtroom setting and
exemplifies the professional nature of this course.