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

Under paragraph 8 of Schedule 6 to the Data Protection Act 1998, the High Court conducts its own inquiry into an alleged contempt arising from tribunal proceedings. It is not confined to reviewing the tribunal’s certification decision or to deciding penalty. The court applies the ordinary law of contempt, including the criminal standard of proof and the requirement that the respondent deliberately intended the relevant act or omission. A public authority which was not a party to the tribunal proceedings will not ordinarily be treated as having committed contempt for breach of a mandatory order where it was not given a proper opportunity to present its case and the order was not served under judicial direction. Administrative failure or disorganisation is insufficient without proof of deliberate omission.

The First-tier Tribunal allowed part of Mr Moss’s appeal concerning a freedom of information request and directed Kingston to provide advice and assistance enabling the request to be reformulated within the statutory cost limit. Kingston was not joined as a party and was not served with the decision by the Tribunal. It nevertheless failed to comply within the prescribed period.

The Tribunal later certified an offence under paragraph 8 of Schedule 6 to the Data Protection Act 1998. The matter was transferred to the High Court, where the issues included the scope of the court’s inquiry, the effect of Kingston’s non-party status, the mental element of contempt, and a claim for damages under the Convention.

1. Statutory function. Paragraph 8(2) of Schedule 6 to the Data Protection Act 1998 required the High Court to inquire into the certified matter and to apply the law of contempt as it applies to court contemnors. The proceedings ceased to have the characteristics of tribunal proceedings. The court had power to hear evidence, make its own findings of fact, determine whether contempt was proved and, if so, impose punishment.
2. Non-party and procedural fairness. Kingston was not a party when the First-tier Tribunal made the substituted decision. The ordinary rule is that a mandatory order requiring action should be addressed to a party. The Tribunal had refused to join Kingston, had not given it proper notice of the hearing or an opportunity substantially to present its case, and had not ensured judicial service of the decision. In those circumstances, non-compliance by Kingston would not have constituted contempt of court. The principles of natural justice required notice and a real opportunity to present the case.
3. Mental element and proof. The criminal standard applied. Contempt required proof that the respondent deliberately intended to commit the relevant act or omission; motive was irrelevant. Circumstantial evidence had to support a single inference of guilt. The evidence was equally consistent with disorganisation and administrative failure, so contempt was not proved beyond reasonable doubt.
4. Damages. The claim for damages under articles 6 and 10 of the Convention was not properly before the court. Any claim under the Human Rights Act 1998 required a separate claim.
5. Disposition. The court refused to exercise its discretion to deal with Kingston as if it had committed contempt. No penalty or damages were awarded. The court observed obiter that active tribunal case management might secure compliance with freedom of information obligations more efficiently.

The judgment records the earlier First-tier Tribunal decision, subsequent proceedings in the Upper Tribunal and the transfer of the certified matter to the High Court. The Lord Chancellor’s proposed appeal to the Court of Appeal was withdrawn.

• First-tier Tribunal: certified an offence against Kingston on 1 April 2022.
• Upper Tribunal: held that the FTT had jurisdiction to certify an offence: Information Commissioner v Moss and Royal Borough of Kingston Upon Thames [2020] UKUT 174 (AAC).
• High Court: conducted its own inquiry and refused to treat Kingston as a contemnor.