Ben Mitchell

Ben regularly appears in judicial review proceedings and advises individuals, NGOs and public bodies on issues of public law and human rights, especially in cases raising equality, education, and environmental issues. He has experience of urgent and politically sensitive judicial reviews having been involved in several cases relating to the Government’s response to the Covid-19 Pandemic.

Recent cases include:

• R (ZK) v Norfolk County Council [2021] EWHC 1249 (Admin): acting for the Defendant in a claim about after-care services under the Mental Health Act 1983, led by Clive Sheldon KC.
• R (Elliott-Smith) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 1633 (Admin), [2021] PTSR 1795: acting for the Claimant in a judicial review of the UK’s Carbon Emissions Trading Scheme on grounds relating to the Paris Agreement and the Climate Change Act 2008, led by David Wolfe KC.
• R (C) v Secretary of State for Work and Pensions [2020] EWHC 2817 (Admin): acting for the Defendant in a discrimination challenge relating the rates at which Carer’s Allowance and Universal Credit were paid during the Covid-19 pandemic, led by Julian Milford KC and Heather Emmerson.
• R (Adiatu) v HM Treasury [2020] EWHC 1554 (Admin), [2020] IRLR 658: acting for the Defendant in a challenge to the furlough scheme (Coronavirus Job Retention Scheme) and statutory sick pay on the grounds of discrimination under EU law and the ECHR and compliance with the public sector equality duty, led by Julian Milford KC and Rupert Paines.
• R (Jackson) v Secretary of State for Work and Pensions [2020] 1 W.L.R. 1441, [2020] EWHC 183 (Admin): acting for the Defendant in a claim of discrimination contrary to Art.14 of the ECHR on the ground of marital/civil partnership status in relation to social welfare entitlements, led by Julian Milford.
• Case T-141/19 Sabo and Others v Parliament and Council (The EU Biomass Case): Acting for the Claimants (a number of individuals and environmental NGOs from across the EU and the USA) in a challenge to the EU’s support for the forest biomass industry on the basis of the human rights and environmental protection principles in the EU Treaties.

Ben has particular interest in strategic litigation and public interest law in the fields of equality, education and environmental protection. This builds upon his research before coming to the Bar, which addressed the use of law and litigation by NGOs and community groups.

Ben regularly acts for and advises individuals and environmental NGOs who aim to improve environmental protection. He has a particular interest in working closely with campaigners to identify targeted challenges relating to climate change and habitat protection. Recent cases include:

• R (Elliott-Smith) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 1633 (Admin), [2021] PTSR 1795: acting for the Claimant (an environmental consultant and campaigner) in a judicial review of the UK’s Carbon Emissions Trading Scheme on grounds relating to the Paris Agreement and the Climate Change Act 2008, led by David Wolfe KC.
• Case T-141/19 Sabo and Others v Parliament and Council (The EU Biomass Case): Acting for the Claimants (a number of individuals and environmental NGOs from across the EU and the USA) in a challenge to the EU’s support for the forest biomass industry on the basis of the human rights and environmental protection principles in the EU Treaties.

Ben also has significant experience of acting for the Information Commissioner’s Office before the Tribunals in cases applying the Environmental Information Regulations 2004. Recent cases of note include:

• Cabinet Office v IC and Greenpeace EA/2018/0270, in which the Tribunal order the partial disclosure of a report into the shale gas industry in the UK.
• Committee on Climate Change v IC and Montford EA/2020/0231 (V), in which the Tribunal ordered the disclosure of information relied upon by the Committee on Climate Change in the development of its 2019 report, Net Zero Report: The UK’s contribution to stopping global warming

Ben has a wide education law practice and regularly accepts instructions from universities, schools, parents, students and local authorities.

He has acted for a large number of universities in cases brought by students alleging discrimination and breach of academic regulations.

Ben also has significant experience of appearing in special education needs (SEN) cases before the First-tier Tribunal (SENDIST) and Upper Tribunal and exclusion cases before Independent Review Panels. Ben volunteers as a barrister mentor with the School Exclusion Project.

Ben also has a strong advisory practice, having advised a number of universities, school, local authorities and individuals on education law issues, including:

• Various academy issues, including on the provision of funding
• Policies and procedures on permanent exclusion from school and on the legality of “managed moves”
• The legality of school closures
• Complaints to the Office of the Independent Adjudicator for Higher Education (OIA)
• SEN and decisions by local authorities to amend or cease to maintain Education, Health and Care Plans (EHCP)

During pupillage, Ben assisted Julian Milford when he successfully defended Oxford University in the High Court case, Siddiqui v University of Oxford [2018] EWHC 184. This was the first domestic case alleging negligent teaching at a university to be considered at full trial in the High Court.

Building on his time working in academia, Ben has provided training in the law relating to SEN to clients.

Ben regularly represents employees and employers in all areas of employment law. He has particular expertise in cases of discrimination, harassment, victimisation and other causes of action under the Equality Act 2010.

Ben also has experience of advising and appearing in cases concerning complex issues in employment law, including questions of:

• Holiday pay and annual leave
• The Employment Tribunal’s territorial jurisdiction
• Whistleblowing
• Transfer of undertakings (TUPE)
• Constructive, unfair, wrongful and discriminatory dismissal
• Breach of contract, including the term of mutual trust and confidence

Recent cases include:

• Werner v University of Southampton EA-2019-000973-LA (26 October 2021): acting for the Respondent in the Employment Appeal Tribunal, successfully resisting an appeal on grounds of procedural unfairness and bias.

• R (Adiatu) v HM Treasury [2020] EWHC 1554 (Admin), [2020] IRLR 658: acting for the Defendant in a challenge to the furlough scheme (Coronavirus Job Retention Scheme) and statutory sick pay on the grounds of discrimination under EU law and the ECHR and compliance with the public sector equality duty, led by Julian Milford KC and Rupert Paines.

Ben is regularly instructed in matters under the Data Protection Act, GDPR, PECR and the Freedom of Information Act.

Ben often appears for the Information Commissioner (ICO) including in matters relating to:

• Challenges to fines under Monetary Penalty Notices, Enforcement Notice, Information
• Notices and Decision Notices under Data Protection Acts, the General Data
• Protection Regulation (GDPR) and the Privacy and Electronic Communications
• Regulations (PECR)
• The Freedom of Information Act (FOIA)
• The Environmental Information Regulations (EIR).

Recent cases of note include:

• Facebook v ICO EA/2018/0256, acting for the Commissioner in the appeal by Facebook against the Monetary Penalty Notice imposed in relation to the ‘Cambridge Analytica’ matter, led by Timothy Pitt-Payne KC and Rupert Paines.
• Our Vault Ltd v ICO [2019] UKUT 369 (AAC), in which the First-tier and Upper Tribunals dismissed an appeal against a PECR fine linked to direct marketing calls.
• Cabinet Office v ICO and Greenpeace EA/2018/0270, in which the Tribunal ordered the partial disclosure of a report by the Cabinet Office into the shale gas industry in the UK.
• Automotive Software Solutions Ltd v ICO EA/2019/0083 and Agnew v ICO and North Hertfordshire DC EA/2019/0025, in both of which the Tribunal held that number plates (VRMs) constitute personal data.

Ben also often acts for companies, employers and other data controllers defending damages claims relating to data breaches and data subject rights, such as subject access requests. He regularly advises on tactical steps to minimise the costs and inconvenience to businesses and organisations caused by these claims.

Ben has considerable experience of the application of the procurement and state aid rules.

Ben has been instructed in a number of procurement matters by economic operators and contracting authorities, including:

• Draeger Safety UK Ltd v London Fire Commissioner [2021] EWHC 2221 (TCC); 197 Con L.R. 151, led by Jason Coppel KC, representing the successful claimant resisting an application to lift an automatic suspension on contract-making under the Public Contracts Regulations 2015
• Acting for a defendant in a large procurement challenge under the Public Contracts Regulations 2015, led by Jason Coppel KC and Joseph Barrett
• Drafting particulars of claim, advising and assisting with pre-action correspondence for various claimants