Introduction

The case of Moss v The Royal Borough of Kingston-Upon-Thames & Anor ([2023] EWCA Civ 1438) revolves around a dispute under the Freedom of Information Act 2000 (FOIA). Derek Moss, the appellant, sought information regarding the Cambridge Road Estate regeneration programme from the Royal Borough of Kingston-upon-Thames ("Kingston"). When Kingston failed to comply with a tribunal's directive to provide assistance in reformulating his FOIA request, Moss pursued legal avenues leading to a certification of potential contempt of court. The primary issues addressed were the jurisdiction of the High Court in determining contempts certified by the First-tier Tribunal (FTT) and whether the proceedings breached Moss's rights under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Summary of the Judgment

The Court of Appeal, Civil Division, dismissed Moss's appeal against the High Court's decision. The appellate court upheld the High Court's authority to inquire into whether Kingston's failure to comply with the FTT's decision constituted contempt of court. The judgment clarified that the FTT's role is to determine whether an act or omission is capable of constituting contempt, thereby sanctioning the High Court (now the Upper Tribunal) to make final determinations. The court found no breach of Article 6 of the Convention, affirming that the procedural steps taken did not infringe Moss's rights to a fair trial.

Analysis

Precedents Cited

The judgment references several significant precedents that shape the court's interpretation of statutory provisions related to contempt and FOIA. Notably:

• R (Majera) v Secretary of State for the Home Department [2021] UKSC 46: Highlighted the necessity for court orders to be obeyed until formally set aside.
• R (O) v Secretary of State for the Home Department, R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3: Emphasized the importance of statutory interpretation within context.
• Burdov v Russia (2009) 49 EHRR 2, Hornsby v Greece (1997) 24 EHRR 250, and Scordino v Italy (No. 1) (2007) EHRR 7: Supported the argument regarding state responsibilities in enforcing court judgments.

Legal Reasoning

The core legal reasoning centered on the interpretation of Schedule 6 to the Data Protection Act 1998 (now aligned with FOIA). The court examined whether the FTT was authorized to make conclusive determinations of contempt or merely to certify potential contempts for the High Court to adjudicate.

Lord Justice Lewis concluded that the FTT's certification does not equate to a final determination of contempt. Instead, it signifies that the conduct in question is of a nature that warrants High Court consideration. The High Court retains full jurisdiction to inquire into the matter, considering evidence and defenses before making an authoritative ruling.

Lord Justice Phillips and Lord Justice Jackson agreed with Lewis LJ, reinforcing the separation of roles between the FTT and the High Court. They emphasized that the FTT should not be burdened with determining contempts in-depth but should focus on whether the actions potentially amount to contempt, leaving the substantive determination to the High Court.

Impact

This judgment sets a clear precedent regarding the procedural flow in cases of FOIA non-compliance leading to potential contempt. It delineates the responsibilities of lower tribunals and higher courts, ensuring that certification by the FTT does not prematurely or conclusively determine contempt but appropriately initiates High Court scrutiny. Future cases will likely follow this clarified pathway, promoting efficiency and clarity in enforcing FOIA directives.

Complex Concepts Simplified

Freedom of Information Act 2000 (FOIA)

The FOIA provides individuals the right to access information held by public authorities. It places obligations on these authorities to disclose requested information unless specific exemptions apply, such as cost limits.

First-tier Tribunal (General Regulatory Chamber) (FTT)

The FTT handles initial appeals under FOIA. In this case, it determined that Kingston failed to comply with its FOIA duties, prompting further legal action.

Contempt of Court

Contempt of court refers to actions that disrespect the court or obstruct the administration of justice. It can be criminal or civil, with appropriate sanctions ranging from fines to imprisonment.

Certification of an Offence

Within the FOIA framework, when a public authority fails to comply with FOIA obligations, the FTT may certify this as an offence to the High Court (now Upper Tribunal). This certification does not finalize contempt but triggers the High Court's jurisdiction to make a definitive ruling.

Conclusion

The Court of Appeal's dismissal of Moss's appeal reinforces the procedural integrity of FOIA enforcement mechanisms. By clearly defining the roles of the FTT and the High Court in handling contempts, the judgment ensures a balanced approach that upholds legal standards without overburdening lower tribunals. This ruling not only clarifies jurisdictional boundaries but also safeguards individuals' rights within the judicial process, maintaining the fairness and efficiency of enforcing public authority compliance with FOIA.