Penny Bence v Cornwall Council & Anor

Contempt by breach of a tribunal order does not require wilful or deliberate disobedience. The applicant must prove beyond reasonable doubt that the respondent had notice of a clear order, intentionally performed the prohibited act or made the required omission, and knew the facts constituting the breach. A genuine misunderstanding may affect sanction but is not a defence where the order is objectively clear.

Under section 61 of the Freedom of Information Act 2000, the First-tier Tribunal determines whether conduct is capable of constituting contempt and whether certification is warranted. The Upper Tribunal conducts the contempt inquiry and determines sanction.

The First-tier Tribunal certified alleged contempt by Cornwall Council arising from its failure to comply with a substituted decision notice concerning Ms Bence’s environmental information request and with a subsequent case-management order. The certification was made under section 61(4) of the Freedom of Information Act 2000; the Upper Tribunal’s jurisdiction arose under section 61(5).

The Council admitted failures to comply with the substituted decision notice within 35 days. The disputed issues were whether paragraph 2(a) remained unperformed between 10 March and 23 July 2025, whether there was continuing breach after 23 July, and whether the 11 February 2025 order had been breached.

1. Disposition. The Council was in contempt for failing to comply with paragraphs 2(a) and 2(b) of the substituted decision notice within 35 days, and remained in contempt as to paragraph 2(a) until 23 July 2025. Continuing breach after that date and breach of the 11 February 2025 order were not proved. The sanction was publication of the findings and payment of agreed costs of £35,000.
2. Statutory roles. The First-tier Tribunal’s function under section 61(4) is to decide whether conduct is capable of constituting contempt and whether it is sufficiently serious to certify. It does not finally determine whether contempt has occurred. The Upper Tribunal conducts the inquiry under section 61(5), within the scope of the certification.
3. Civil contempt. Applying FW Farnsworth Ltd v Lacy, contempt required notice of the order, a prohibited act or required omission within the specified time, intention to perform the act or make the omission, and knowledge of the facts making it a breach. The order had to be clear and unambiguous and each element had to be proved beyond reasonable doubt. No intention to interfere with justice or specifically to disobey was required.
4. Application. The Council’s 10 March 2025 refusal notice was invalid because it relied on a single, unduly broad search using inadequate terms and did not properly search for the requested information. The later narrowed search did not cure that breach. By 23 July 2025 the remaining requirements had been sufficiently addressed. The alleged breach of the 11 February order was not proved because the earlier directions had been substantively answered and were at least ambiguous.
5. Sanction. The specific FOIA certification procedure meant that CPR Part 81 did not automatically apply. Fairness safeguards should nevertheless be explained in appropriate cases. The prolonged and serious failures of a well-resourced public authority justified a public finding and costs, despite the absence of wilful disobedience.

• Upper Tribunal (Administrative Appeals Chamber) — inquired into the First-tier Tribunal’s certification under section 61(5) of the Freedom of Information Act 2000; contempt was found in part and sanction imposed.
• First-tier Tribunal (General Regulatory Chamber) — certified alleged contempt on 4 March 2025 under section 61(4) of the Freedom of Information Act 2000; the certification was amended on 24 April 2025.