Derek Moss v Royal Borough of Kingston-upon-Thames & Anor.

The First-tier Tribunal certified that the Royal Borough of Kingston-upon-Thames had failed to comply with the FTT's substituted decision (EA/2016/0250) requiring it to provide advice and assistance under section 16 of the Freedom of Information Act 2000 and to supply Part 4 of the request within 30 working days. The certification was transmitted to the High Court under paragraph 8 of Schedule 6 to the Data Protection Act 1998 (as in force at the relevant time) so that the High Court could "inquire into the matter" and apply the law of contempt.

The High Court held that the statutory scheme permits a full inquiry by the court (not merely a review of the FTT's findings) and that the court should apply the law of contempt as it applies to court contemnors. However, the court refused to treat Kingston as a contemnor: (i) Kingston's non-party status and the FTT's failure to give Kingston formal opportunity to take part raised procedural fairness concerns; and (ii) the criminal standard of proof was not met because the evidence was consistent with disorganisation and administrative failure as well as deliberate omission, so no single inference of deliberate contempt could be drawn.

The court also refused the claimant's recusal application and refused to strike out the witness statement of Kingston's witness. A claim for damages under the Human Rights Act was not pursued as a separate claim and no award was made.

This is a High Court inquiry under paragraph 8 of Schedule 6 to the Data Protection Act 1998 into a certified offence arising from a First-tier Tribunal substituted decision under the Freedom of Information Act 2000. The FTT directed Kingston to provide advice and assistance under section 16 FOIA and to supply Part 4 of a 16 February 2016 information request within 30 working days. The FTT later certified that Kingston had failed to comply; the certification was transferred to the High Court for inquiry and possible contempt disposition.

Parties and procedure:

• The claimant/applicant, Mr Derek Moss, pursued the certification and appeared in person. The First Respondent, Royal Borough of Kingston-upon-Thames, was represented by counsel. The Information Commissioner (second respondent) did not take part in the High Court hearing.
• Preliminary applications included a renewed application for the judge's recusal (refused) and an application to strike out the witness statement of Kingston's witness, Ms Rhian Allen (refused).

Nature of the application and relief sought:

• Mr Moss sought the court to deal with Kingston as if it had committed contempt of court, which could include committal or other penalties, and he sought damages for alleged breaches of article 6 and article 10 ECHR.

Issues framed by the court:

1. Whether the FTT or Mr Moss was the applicant in the High Court proceedings;
2. Whether FTT procedures for enforcement were compatible with article 6 (not pursued);
3. Whether Kingston could challenge the FTT's findings in the High Court or use the High Court proceedings to reopen the FTT's decision;
4. What penalty (if any) was appropriate for contempt;
5. Whether damages under the Human Rights Act should be awarded.

Court's reasoning and conclusions:

• The court construed para 8 Schedule 6 as giving the High Court a broad statutory power to "inquire into the matter" and to apply the ordinary law of contempt; the High Court is not limited to determining sanction only but may determine liability as well.
• Nevertheless, the court emphasised procedural fairness: treating a non-party as a contemnor where that non-party had not been given a proper opportunity to be heard raised natural justice concerns. The FTT had not given Kingston a proper notice-and-participation process before making the substituted decision binding on Kingston in practice, and Kingston had not been served as a party in the FTT process.
• Applying the criminal standard and established civil-contempt principles, the court required proof beyond reasonable doubt of deliberate conduct amounting to contempt. The available evidence did not permit a single inference of deliberate omission; it was consistent with administrative failure and disorganisation. The court therefore refused to exercise its discretion to treat Kingston as having committed contempt.
• The court declined to award damages because no separate Human Rights Act claim had been brought.

The judge made final observations urging tribunals and the Upper Tribunal to consider active case management to secure compliance with FOIA at an earlier stage.

The court refused to exercise its discretion to deal with the Royal Borough of Kingston-upon-Thames as if it had committed the offence of contempt of court. Rationale: (i) the FTT's certification enables the High Court to "inquire into the matter" and determine liability and sanction, but procedural fairness requires that a non-party be afforded proper notice and opportunity to present its case; (ii) the criminal standard of proof for contempt was not satisfied because the evidence permitted a non-culpable inference of administrative disorganisation rather than deliberate omission.

The FTT issued a substituted decision (EA/2016/0250) on 20 March 2017 directing Kingston to provide section 16 advice and assistance within 30 working days. The FTT subsequently certified an offence (1 April 2022). The certification was the subject of prior proceedings in the Upper Tribunal: Information Commissioner v Moss and Royal Borough of Kingston Upon Thames [2020] UKUT 174 (AAC), which considered jurisdictional issues. There were further interlocutory steps including an application by the Lord Chancellor for permission to appeal (granted and then withdrawn). The High Court conducted the statutory inquiry under paragraph 8 of Schedule 6 to the Data Protection Act 1998 and determined the matter on 11 January 2023.