Derek Moss v Royal Borough of Kingston-upon-Thames
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 11 January 2023 |
| Neutral Citation | [2023] EWHC 27 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2022-002325 |
[2023] EWHC 27 (KB)
Mrs Justice Farbey
Case No: QB-2022-002325
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Moss appeared in person (attending remotely)
Philip Coppel KC and John Fitzsimons (instructed by South London Legal Partnership) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing dates: 17 th October 2022
Approved Judgment
This judgment was handed down at 12.00 noon on Wednesday 11 January 2023 by Mrs Justice Farbey to the parties or their representatives in person and by release to the National Archives.
Introduction
By a written decision and reasons promulgated on 1 April 2022, the First-tier Tribunal (General Regulatory Chamber) (“FTT”) certified an offence by the Royal Borough of Kingston-Upon-Thames (“Kingston”). That offence was described as:
“the failure…to comply with the terms of the [FTT's] decision in EA/2016/0250, dated 20 March 2017.”
The FTT's decision in case EA/2016/0250 was that Kingston was required to provide advice and assistance to reformulate a request made by Mr Derek Moss under the Freedom of Information Act 2000 (“ FOIA”) that would generate an answer falling within the statutory appropriate limit. It was not in dispute that the limit was £450 of Kingston's resources (regarded as 18 hours of the public authority's time). The FTT directed that the advice and assistance should be provided within 30 working days. It is not in dispute that Kingston failed to comply with the FTT's direction.
As a result of the FTT's certification, the case was transferred to the High Court which at that time had statutory jurisdiction to conduct contempt proceedings. Subsequent legislation has transferred the contempt jurisdiction to the Upper Tribunal (“UT”); but it was not in dispute before me that the provisions in force at the date of the FTT's certification apply to the present proceedings.
The key provision in force, which falls for interpretation, was para 8 of Schedule 6 to the Data Protection Act 1998 which was given effect by section 48(5) of that Act (hereafter “the 1998 Act”). Para 8 to Schedule 6 has two sub-paragraphs which deal — respectively — with the power of the FTT to certify an offence and the power of the High Court to deal with the certified offence:
“8 (1) If any person is guilty of any act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute contempt of court, the Tribunal may certify the offence to the High Court or, in Scotland, the Court of Session.
(2) Where an offence is so certified, the court may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, deal with him in any manner in which it could deal with him if he had committed the like offence in relation to the court.”
It is an unusual feature of the proceedings that this is probably the first and last case to come before the High Court by this route. Other newer cases have been or will be considered by the UT under the subsequent legislation (section 61 of the Freedom of Information Act 2000 as substituted by the Data Protection Act 2018 Schedule 19(1) para 60).
By way of evidence, I was provided with a Hearing Bundle containing documents produced by Mr Moss and Kingston. Mr Moss supplied a Supplementary Bundle. I heard oral evidence from Ms Rhian Allen, the Information Governance and Records Manager & Data Protection Officer within Kingston. She relied on her witness statement dated 13 July 2021 on which she had relied when giving evidence in the certification proceedings before the FTT.
I heard oral submissions from Mr Moss in person and from Mr Philip Coppel KC (with Mr John Fitzsimons) on behalf of Kingston. The Information Commissioner (the second respondent) played no part in the proceedings.
Preliminary issues
Application for my recusal
At the start of the hearing, Mr Moss renewed his application (which I had previously refused on the papers) that I should recuse myself on grounds of apparent bias. By order of 22 July 2022, I had directed that the hearing in the present case should take place directly before the hearing in Rotherham Metropolitan Borough Council v Liam Harron and Information Commissioner; Liam Harron v Rotherham Metropolitan Borough Council and Information Commissioner (UA-2021-000404-GIRF & UA-2022-00032-GIRF) which was pending in the UT (Administrative Appeals Chamber) (“UTAAC”) under the newer legislation. By written application dated 31 July 2022, Mr Moss had applied to the UTAAC for non-party disclosure of the written submissions of the parties in the Harron case. I determined and refused that application in my capacity as the then President of the UTAAC with conduct of the Harron case.
In his written grounds of renewal, Mr Moss submitted that I was biased because, in my written reasons for refusing his application for disclosure in Harron, I had said that “Mr Moss will be given everything that he needs to know about the case against him” by Kingston's barristers. The context of that comment should be noted. Mr Fitzsimons appeared for Rotherham Metropolitan Borough Council in the Harron proceedings and was therefore due to appear in front of me in that case too.
In refusing Mr Moss's disclosure application, I observed (among other things):
“5. On or around 14 September 2022, Counsel for Kingston in the High Court proceedings served (as directed by me) written submissions on (i) the issues that Kingston would like the court to decide and (ii) Kingston's response to the issues that Mr Moss would like the High Court to determine. The purpose of the court directing that sort of written submission at that stage (as opposed to later down the line) was to ensure that Mr Moss would know how Kingston intended to put its case. He does not need documents from another case to know the issues in his case. Any barrister who is in both cases has duties to the High Court to ensure that all (and only) relevant matters are drawn to the High Court's attention. There is no reason to suppose that that professional duty will not be fulfilled. That means that Mr Moss will be given everything that he needs to know about the case against him. There is no need for cross-service of written submissions.”
Mr Moss submitted that, by referring in these remarks to “the case against him” I had prejudged one of the issues that he wished to raise before me, namely whether or not he should be treated as an applicant presenting a case to the court with Kingston presenting a case against him. I explained to Mr Moss that “the case against him” meant the arguments that Kingston would make which were opposing his own arguments. Having heard this explanation, Mr Moss withdrew this aspect of his application.
Mr Moss nevertheless submitted that I was wrong and biased to have said in refusing his application in Harron that there was no reason to suppose that, in the absence of non-party disclosure to him, counsel for Kingston would not fulfil their professional duty to draw all relevant matters to the court's attention. By way of support for this submission, he criticised the conduct of Mr Coppel and Mr Fitzsimons in the FTT certification proceedings.
Mr Moss failed to persuade me, however, of a single instance in which either Mr Coppel or Mr Fitzsimons has at any stage acted unprofessionally or unethically. Mr Moss's allegations were intemperate and lacked any substance. He is no more entitled than a party represented by counsel to make unfounded allegations against those appearing on the opposite side. Mr Moss having advanced no proper reason why I should not hear the case, I announced my decision at the hearing that his renewed application for my recusal was refused.
Application to strike out Ms Rhian Allen's witness statement
Mr Moss applied for the witness statement of Ms Allen dated 31 July 2021 to be struck out on the grounds that it failed to comply with the “rules, practice directions and authorities by which the admissibility of a witness statement in the civil courts must be determined.” He submitted that, contrary to CPR 32PD para 18.2, Ms Allen's witness statement did not indicate which of the statements in it were made from her own knowledge and which were matters of information or belief; nor did it indicate the source of any matters of information or belief. By her own admission, Ms Allen had no personal knowledge of what did or did not happen for the very long period before her involvement in the case. He submitted that the absence of any indication of how she came to know what had happened meant that her evidence was in large part conjecture or inadmissible opinion evidence. Mr Moss relied on CPR 32PD para 25.1 which gives the court a discretion to refuse to admit a witness statement as evidence where it does not comply with the requirements of CPR 32PD. He submitted that the defects in Ms Allen's statement should cause me to strike out the statement in its entirety ( Rock Nominees Ltd v RCO (Holdings) PLC [2003] EWHC 936 (Ch), paras 80–81; Consolidated Contractors International Company SAL v Masri [2011] EWCA Civ 21, paras 32–33; JD Wetherspoon PLC v Harris [2013] EWHC 1088 (Ch), paras 33–390).
In my judgment, on any fair reading of the statement, Ms Allen relied on her own knowledge, inquiries with colleagues and Kingston's files. She does not name all of the colleagues she consulted and does not name all the files she searched but Mr Moss...
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Derek Moss v The Royal Borough of Kingston-Upon-Thames
...THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE KING'S BENCH DIVISION THE HONOURABLE MRS JUSTICE FARBEY [2023] EWHC 27 (KB) Royal Courts of Justice Strand, London, WC2A 2LL Derek Moss appeared in person (attending Philip Coppel KC and John Fitzsimons (instructe......