Derek Moss v The Royal Borough of Kingston-Upon-Thames
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Lord Justice Phillips,Lord Justice Peter Jackson |
| Judgment Date | 30 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1438 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000224 |
[2023] EWCA Civ 1438
Lord Justice Peter Jackson
Lord Justice Phillips
and
Lord Justice Lewis
Case No: CA-2023-000224
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
THE HONOURABLE MRS JUSTICE FARBEY
Royal Courts of Justice
Strand, London, WC2A 2LL
Derek Moss appeared in person (attending remotely).
Philip Coppel KC and John Fitzsimons (instructed by South London Partnership) for the First Respondent
The Second Respondent did not appear and was not represented
Hearing date: 19 October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 30 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This appeal arises out of a decision dated 20 March 2017 made by the First-tier Tribunal (General Regulatory Chamber) (“the FTT”) that the respondent, the Royal Borough of Kingston-upon-Thames (“Kingston”), should provide the appellant, Derek Moss, with advice and assistance within 30 days to enable him to reformulate a request for information made pursuant to the Freedom of Information Act 2000 (“ FOIA”). It is accepted that Kingston had not complied with that decision.
The FTT does not have a power to commit a person for contempt of court in the event of a failure to comply with one of its orders. The statutory provisions then in force for dealing with such failures provided that the FTT may certify what was described as an offence if any person had been guilty of an act or omission which would constitute contempt of court if it had been committed before a court having power to commit for contempt. The matter would then be transferred to the High Court. That Court had power to inquire into the matter and, subject to certain procedural safeguards, had power to deal with the person in any manner in which it could have dealt with the person if he had engaged in that conduct in proceedings in the High Court.
In the present case, the FTT certified an offence to the High Court, that offence being the failure by Kingston to comply with the terms of the FTT's decision dated 20 March 2017. The matter was then considered by the High Court which found that the failure to comply with the decision of the FTT did not amount to a contempt of court.
The principal issue on this appeal is whether the High Court had jurisdiction to determine whether the omission amounted to a contempt of court or whether it was limited to determining the appropriate sanction on the basis that the FTT had already determined that the omission amounted to a contempt. A second issue is whether the way in which the matter was considered by the FTT or the High Court involved a breach of the appellant's rights under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
THE STATUTORY FRAMEWORK
FOIA provides a scheme for the disclosure of information held by public authorities. Section 1(1) of FOIA provides that a person making a request for information to a public authority is entitled to be informed in writing whether the public authority holds information of the description specified and, if so, to have that information communicated to him. There are exceptions to that obligation. In the present case, the material exception is contained in section 12 of FOIA which provides that section 1(1) does not oblige a public authority to comply with a request for information if the cost of doing so would exceed a prescribed limit (at the material time, £450 or the equivalent of 18 hours of work). Section 16 of FOIA imposes a duty on a public authority to provide advice and assistance to a person who proposes to make, or has made a request.
Part IV of FOIA deals with enforcement. Section 50 provides that a person may apply to the Information Commissioner (“the Commissioner”) for a decision on whether a request has been dealt with in accordance with the requirements of Part 1 of FOIA. The person making the request is referred to in FOIA as “the complainant”. The Commissioner may, amongst other things, serve a notice of his decision on the complainant and the public body concerned. Section 54 provides that if a public authority has failed to comply with a decision notice, or in purported compliance, knowingly or recklessly makes a statement which is false in a material respect, the Commissioner “may certify in writing to the court that the public authority has failed to comply with the notice”. Section 54(3) provides that the court may inquire into the matter and, after hearing any witness and hearing any statement offered in defence, deal with the authority “as if it had committed a contempt of court”.
Part V of FOIA deals with appeals. Section 57 of FOIA provides for a right of appeal by a complainant or public authority against a decision notice served by the Commissioner. An appeal may simply be allowed or a different decision notice may be substituted (see section 58 of FOIA). Section 61 of FOIA as originally enacted provided that Schedule 6 to the Data Protection Act 1998 (“the 1998 Act”) applied to appeals under Part V of FOIA. That resulted in such appeals being heard by the Data Protection Tribunal established under the 1998 Act. That tribunal was comprised of a legally qualified chairman (or deputy chairman) and two members, one representing the interests of data subjects and one the interests of data controllers (see section 6 and paragraph 4 of Schedule 5 to the 1998 Act). Paragraph 7 of Schedule 6 to the 1998 Act provided a power for the Secretary of State to make rules for regulating the exercise of rights of appeal. The Data Protection Tribunal was an inferior tribunal and did not have a power to commit a person for a contempt arising out of its proceedings. Paragraph 8 of Schedule 6 to the 1998 Act, however, provided for the Data Protection Tribunal to certify what was described as an offence and provided power for the High Court to inquire into the matter and deal with the person. Paragraph 8 of Schedule 6 is the key paragraph in the present appeal and is in the following terms:
“Obstruction etc.”
(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.”
The power to hear appeals, and certify offences, was transferred to the FTT in 2010 by the Transfer of Tribunal Functions Order 2010.
For completeness, section 61 of FOIA was amended in 2018. The amended section provided for the FTT to certify an offence and for the matter then to be considered by the Upper Tribunal (rather than the High Court). Other than that change, the provisions of section 61 are materially similar to Schedule 6 to the 1998 Act. It provides, so far as material:
“61 Appeal proceedings
(1) Tribunal Procedure Rules may make provision for regulating the exercise of rights of appeal conferred by sections 57(1) and (2) and 60(1) and (4).
…..
(3) Subsection (4) applies where—
(a) a person does something, or fails to do something, in relation to proceedings before the First-tier Tribunal on an appeal under those provisions, and
(b) if those proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court.
(4) The First-tier Tribunal may certify the offence to the Upper Tribunal.
(5) Where an offence is certified under subsection (4), the Upper Tribunal may—
(a) inquire into the matter, and
(b) deal with the person charged with the offence in any manner in which it could deal with the person if the offence had been committed in relation to the Upper Tribunal.
(6) Before exercising the power under subsection (5)(b), the Upper Tribunal must—
(a) hear any witness who may be produced against or on behalf of the person charged with the offence, and
(b) hear any statement that may be offered in defence. …..”
THE FACTUAL BACKGROUND
Mr Moss's Request for information
The factual background is fully described in the decision of the High Court in Moss v Royal Borough of Kingston-upon-Thames [2023] EWHC 287 (KB). The facts that are particularly material to this appeal can be stated shortly.
Mr Moss has an interest in the provision of social housing in the Kingston area. He operates a website which provides information to other individuals and groups which they have found valuable when speaking to residents and others about Kingston's proposals. One of the projects in which Mr Moss was interested was known as the Cambridge Road Estate regeneration programme (“the regeneration programme”). On 16 February 2016, he made a request under section 1 of FOIA for information about the regeneration programme. That request was divided into four parts. In summary, Parts 1 and 2 requested information about the appointment of two consultants to the regeneration programme. Part 3 concerned information about a body called the Affordable Homes Working Group. Part 4 sought details of the stakeholders in the regeneration programme. On 9 March 2016, Kingston confirmed that it held information relating at...
To continue reading
Request your trial