Court of Appeal rejects appeal over whether council was in contempt after failure to comply with Tribunal FOI ruling

The Court of Appeal has dismissed an appeal over a High Court decision that the Royal Borough of Kingston-upon-Thames had not committed contempt of court when it failed comply with a decision of the First-Tier Tribunal (General Regulatory Chamber).

The case of Moss v The Royal Borough of Kingston-Upon-Thames & Anor [2023] EWCA Civ 1438 (30 November 2023), arose from a finding by the FTT in March 2017 that Kingston should – under section 16 of the Freedom of Information Act 2000 (FOIA) – have provided the appellant, Derek Moss, with advice and assistance on how to make a reformulated request for information,

The FOI request from Moss, who runs a website providing information on social housing in the Kingston area, asked for information on a regeneration programme the royal borough was backing.

His request was rejected in March 2016 by the council. It relied on section 12 of the FOIA, arguing that the costs of providing the information would exceed the appropriate limit.

Moss took the matter to the Information Commissioner's Office, which determined the council was correct in its application of section 12.

He then appealed to the FTT, which decided that the council was entitled to rely on section 12 of FOIA but had failed to comply with its duties under section 16 of FOIA.

Section 16 requires an organisation to provide advice and assistance to enable a reformulation of the request that falls within the appropriate limit. This must include provision of Part 4 and be done within 30 days.

The decision was served on Moss and the Commissioner but was not served by the FTT on Kingston as it was not a party to the appeal. However, a copy of the decision was forwarded by the Commissioner to Kingston.

By February 2018, Moss considered that Kingston had failed to comply with the FTT's decision and applied to the FTT for a contempt order.

The FTT's cannot commit a person for contempt of court in the event of a failure to comply with one of its orders, but it can 'certify' an offence, escalating the matter to the High Court.

The High Court considered Moss’s case following a certification by the FTT, leading to Mrs Justice Farbey ruling that the council’s failure to comply with the decision of the FTT did not amount to contempt of court.

Moss then went to the Court of Appeal, advancing the following two grounds:

1. In holding the Appellant responsible for prosecuting the First Respondent's contempt, the Judge failed to give effect to a binding decision of a superior court, disregarded a relevant statutory provision, and misunderstood or misconstrued the law.
2. In deciding that the court should start from scratch and determine whether the First Respondent was guilty of the offence of contempt which the First tier Tribunal found it guilty of and certified to the court, the Judge failed to give effect to a binding decision of a superior court, disregarded a relevant statutory provision, and misunderstood or misconstrued the law."

In the Court of Appeal, Lord Justice Lewis dismissed both grounds, with agreement from Lord Justice Peter Jackson and Lord Justice Phillips.

Lewis LJ tackled ground two first, concluding that: "The role of the FTT is to make a certification decision when the person had engaged in conduct (an act or omission) in relation to proceedings before it which it considers could be a contempt if that conduct had occurred in proceedings before a court or tribunal empowered to punish a person for contempt.

"It is not making a final determination of whether or not the conduct would be a contempt in those circumstances. The High Court (now the Upper Tribunal) may inquire into whether or not the conduct would have been a contempt if committed in proceedings before it. Farbey J. was correct, therefore, in concluding that she was entitled to determine whether the conduct in this case amounted to a contempt."

Turning to the first ground, Lord Justice Lewis found that where the FTT had certified an offence, the High Court was "entitled to inquire into whether the conduct that had occurred in the proceedings before the FTT constituted a contempt".

He added: "Farbey J. was entitled, therefore, to consider whether the failure by Kingston to comply with the decision of the FTT of 20 March 2017 amounted to a contempt.

"There was no breach in this case of Mr Moss's rights under Article 6 of the Convention in the way in which the matter was dealt with by the FTT nor in the way in which the proceedings in the High Court were dealt with. I would dismiss the appeal."

Adam Carey