Derek Moss v The Royal Borough of Kingston-Upon-Thames & Anor

This appeal concerned the proper effect of a First-tier Tribunal (General Regulatory Chamber) certification under paragraph 8 of Schedule 6 to the Data Protection Act 1998 (as applied to Freedom of Information Act appeals) and the scope of the High Court's power on receipt of such a certification. The Tribunal may certify that an act or omission in relation to proceedings before it is of a kind capable of constituting contempt of court and send the matter to a superior court for inquiry; the superior court (now the Upper Tribunal by later amendment) may then inquire into the matter and determine whether the conduct in question in fact amounts to contempt and, if so, impose any appropriate sanction.

The Court held that the High Court was not constrained to accept the FTT's certification as a definitive finding of contempt; the certification is a gateway vesting jurisdiction in the superior court to inquire de novo into whether the conduct would have been a contempt if it had occurred before that superior court. The High Court properly heard evidence and concluded on the facts that the respondent public authority's failure to comply did not amount to contempt. The appellant's complaint of an Article 6 breach failed because the procedures before the FTT and the High Court afforded him an opportunity to present and challenge the case and he was not required to shoulder a disproportionate enforcement burden.

Background and parties:

• The appellant, Mr Derek Moss, made a request under the Freedom of Information Act 2000 about the Cambridge Road Estate regeneration programme. Kingston relied on the cost exemption in section 12 and was found by the Information Commissioner not required to provide further information. Mr Moss appealed to the First-tier Tribunal (FTT), which found Kingston had breached its duty under section 16 (advice and assistance) and ordered Kingston to provide advice and assistance within 30 days (FTT decision dated 20 March 2017).
• Kingston did not comply with the FTT's order. Mr Moss applied for certification under paragraph 8 of Schedule 6 to the Data Protection Act 1998 (the then applicable mechanism) that the failure was an act or omission capable of constituting contempt; the FTT certified the matter and sent it to the High Court. The High Court (Farbey J) inquired into the matter and held the non-compliance did not amount to contempt. Mr Moss appealed to the Court of Appeal.

Nature of the application/relief sought: The appellant sought a finding that the FTT's certification required the High Court to treat the FTT's conclusion of contempt as conclusive and, alternatively, contended that procedural arrangements had breached his Article 6 rights.

Issues framed by the court:

1. Whether the High Court was limited to imposing sanction on the basis that the FTT had already found contempt, or whether it had jurisdiction to inquire afresh whether the conduct constituted contempt; and
2. Whether the FTT's or High Court's procedures in this case breached the appellant's Article 6 ECHR rights (in particular by placing the enforcement burden on the appellant).

Court’s reasoning (concise):

• Statutory interpretation: read in context, paragraph 8 of Schedule 6 (and the later section 61 scheme) establishes a two-stage mechanism. The FTT determines whether there has occurred an act or omission in relation to its proceedings that is of a kind capable of constituting contempt if it had occurred before a court with a contempt jurisdiction; if so the FTT may certify the matter and send it to the superior court.
• Role of the superior court: the superior court's power to "inquire into the matter" must be given effect. That entails a power to hear witnesses for and against the putative contemnor, to consider any defence and to determine whether the conduct in fact amounts to contempt and, if so, to impose sanction. The certification therefore is not a binding conclusive determination of guilt by the FTT.
• Article 6: the procedural steps the appellant faced (application to the FTT, certification, High Court inquiry) did not infringe Article 6 on the facts. The appellant had opportunities to present evidence and to cross-examine, and the public authority was not relieved of responsibility for compliance by the existence of the certification mechanism.

Procedural history in brief: FTT decision (20 March 2017) → certification proceedings in the FTT → certification lodged with the High Court → High Court inquiry (Farbey J, judgment dated January 2023) → appeal to the Court of Appeal ([2023] EWCA Civ 1438), appeal dismissed.

The appeal was dismissed. The Court of Appeal held that paragraph 8 of Schedule 6 to the Data Protection Act 1998 (and section 61 of FOIA as amended) contemplates that the FTT may certify conduct which is capable of constituting contempt and that a superior court (High Court or Upper Tribunal) may then inquire into the matter and decide, after hearing witnesses and any defence, whether the conduct in fact amounts to contempt; the FTT's certification is not a conclusive determination that the conduct was contempt. On the facts the High Court was entitled to find that Kingston's failure did not amount to contempt, and there was no breach of Article 6 in the way the proceedings were conducted.

Appeal from the High Court (Queen's Bench Division, Farbey J) following certification by the First-tier Tribunal; FTT decision of 20 March 2017 (certification hearing decided in January 2022/2022 certification lodged), High Court judgment reported at [2023] EWHC 27 (KB) (Farbey J) — the present appeal to the Court of Appeal ([2023] EWCA Civ 1438) was dismissed. Earlier interlocutory steps included the Upper Tribunal consideration of the FTT's jurisdiction to entertain a certification application. (Where specific earlier neutral citations were referenced in the judgment they include the High Court decision [2023] EWHC 27 (KB).)