YSA v Associated Newspapers Ltd

The Upper Tribunal’s contempt jurisdiction under Tribunals, Courts and Enforcement Act 2007, section 25, includes enforcing an anonymity order where enforcement is incidental to its functions. In the absence of applicable Tribunal Procedure Rules, an application for committal must, so far as practicable, follow the procedural safeguards in CPR Part 81.

An application alleging breach of an order made in concluded judicial review proceedings is not made in existing proceedings merely because the order remains in force. Permission must therefore be expressly sought. By contrast, an application concerning an order made in an appeal still before the Tribunal is made in existing proceedings. In either situation, allegations of contempt must be precisely pleaded and supported so that the respondent is treated fairly.

YSA applied to commit Associated Newspapers Ltd for contempt for alleged breaches of anonymity orders. Two orders had been made in judicial review proceedings that had concluded. A further order had been made by the First-tier Tribunal in the applicant’s pending immigration appeal.

The application identified media publications which allegedly disclosed, or enabled identification of, the applicant. The respondent disputed the Tribunal’s jurisdiction and contended that the application did not meet the procedural requirements appropriate to contempt proceedings.

The central issues were whether the Upper Tribunal could entertain the application, whether permission was required, and whether the application was sufficiently precise and fair to proceed.

1. Application refused. The Tribunal declined to accept the committal application because it was procedurally defective and unfair to the respondent. Had it accepted the application, it would have refused permission in respect of the concluded judicial review proceedings and would also have refused the application on its merits.

2. Under section 25 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal has the High Court’s powers in matters incidental to its functions. That includes enforcement of its own anonymity orders. The Tribunal assumed that enforcement of an anonymity order made by the First-tier Tribunal in an appeal continuing before the Upper Tribunal was likewise incidental to its functions.

3. The fact that a contempt may be characterised as criminal did not require proceedings to be instituted by the Attorney General or heard only in the High Court. The decisive question was whether the Tribunal had statutory jurisdiction. Section 3(5) of the 2007 Act, making the Upper Tribunal a superior court of record, did not itself establish the plenary contempt jurisdiction required here.

4. Where no Tribunal Procedure Rules prescribe the process, the section 25 jurisdiction should be exercised using, with necessary adaptations, the practices and safeguards in CPR Part 81. Those safeguards promote efficient proceedings and protect an alleged contemnor.

5. The alleged breach of orders made in concluded judicial review proceedings was not an application in existing proceedings. The continuing effect of an indefinite anonymity order did not make the concluded proceedings existing for this purpose. Permission was therefore required, and an individual applicant had to make an express application and show a strong prima facie case with sufficient public interest in proceeding.

6. The alleged breach of the First-tier Tribunal’s order was made in existing appeal proceedings, so permission was not required. Nevertheless, the same defects were fatal. The application lacked the required precision, a statement of truth, confirmation of service and adequate identification of the particular material said to breach each order. A late attempt to recast the allegation also unfairly disadvantaged the respondent.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal refused the applicant’s committal application.
• First-tier Tribunal: On 8 March 2022, it continued anonymity in the applicant’s immigration appeal. That appeal remained before the Upper Tribunal.
• Upper Tribunal judicial review proceedings: An anonymity order made on 22 October 2019 was continued by Foster J on 10 July 2020. The judicial review proceedings were subsequently dismissed.