Moss v The Upper Tribunal

Factual and Procedural Background

The case originates from events dating back to 2015, connected to a child sexual exploitation scandal in The City. Plaintiff produced a booklet containing contributions from victims and others affected by the scandal. Company A ordered 1,500 copies but later ceased distribution after seeking independent expert advice. Plaintiff sought to understand the reasons for this cessation and initiated extensive scrutiny of Company A through numerous Freedom of Information Act (FOIA) requests, internal reviews, and Subject Access Requests over several years.

The dispute ultimately focused on Company A's alleged failure to provide Plaintiff with one attachment to an email, known as the Q&A document. Although the document was eventually provided, the question remained whether the timing of its provision constituted a breach of Company A's obligations under a substituted decision notice derived from an earlier tribunal ruling.

Plaintiff requested the First Tier Tribunal ("FtT") to certify certain alleged failures as contempt of court offences under s.61 FOIA, including the failure regarding the Q&A document. The FtT certified the failure concerning the Q&A document as contempt but rejected other claims.

The Upper Tribunal ("UT") President, Judge [Last Name A], heard the case and set aside the FtT’s certification, remaking the decision to refuse certification of contempt. The UT found four legal errors in the FtT’s approach, relating to fairness, timing of requests, relevance of the document to the internal review, and the fact that Plaintiff had already received the document before proceedings commenced.

Separately, Appellant sought disclosure of written submissions from the Plaintiff’s case in the UT, arguing that without access to these documents, he would be disadvantaged in similar contempt proceedings where he was a claimant. The request was refused by Judge [Last Name A] and subsequently by the new UT President, Judge [Last Name B], who applied principles from the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring.

The refusal was appealed, with Appellant arguing that the refusal misapplied binding precedent and breached his rights under Articles 6 and 10 of the European Convention on Human Rights (ECHR). New counsel was instructed for the appeal, maintaining the original grounds.

Legal Issues Presented

1. Whether a non-party has a right or entitlement at common law to receive parties’ written submissions and skeleton arguments used in tribunal proceedings absent specific rules or good reason.
2. Whether the judge below erred in law by failing to properly apply the principles set out in Cape Intermediate Holdings Ltd v Dring regarding disclosure to non-parties.
3. Whether refusal of access to such documents infringes the appellant’s rights under Articles 6 (right to a fair trial) and 10 (freedom of expression) ECHR.

Arguments of the Parties

Appellant's Arguments

• There exists a 'default position' that any non-party requesting written submissions and skeleton arguments is entitled to them unless good reason exists to withhold.
• Disclosure of the documents would advance the principle of open justice by enabling him, as a campaigner and writer interested in information rights law, to understand and write about the arguments deployed in the cases.
• The refusal to provide the documents interfered with his rights under Articles 6 and 10 ECHR.
• The tribunal had an inherent power and common law duty to grant third-party access to these documents.
• He argued that his application should not have been disclosed to the parties, and the parties had no right to be informed of his request.

Respondent's Arguments

• The judge below correctly applied the legal framework from Dring and found no good reason was shown by the appellant to justify disclosure.
• The appellant’s stated reasons were sparse and insufficiently detailed.
• Disclosure was refused on grounds of proportionality and resource considerations of the tribunal.
• The parties had provided sufficient detail of their submissions in the judgment itself.
• The appellant should have sought the documents from the parties directly before applying to the tribunal.
• The tribunal rules do not provide a right of access to non-parties, and there is no existing guidance permitting disclosure without good reason.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38	Established that the default position is open justice, allowing access to documents referred to in proceedings, but no absolute right for non-parties; access requires showing a good reason advancing open justice, balanced against countervailing factors including proportionality and risk of harm.	The court adopted the principles from Dring as the controlling framework for disclosure to non-parties and found the judge below erred in failing to properly assess the appellant’s stated good reason and in her proportionality assessment.
Scott v Scott [1913] AC 417	Open justice as a cornerstone of the English legal system, ensuring transparency and public confidence in judicial decisions.	Referenced to underscore the importance of open justice in the court’s analysis.
R v Guardian News and Media Ltd v City of Westminster Magistrates Court [2012] EWCA Civ 420	Affirmed the principle that access to documents for proper journalistic purposes is generally permitted unless outweighed by countervailing factors.	Used to illustrate the balancing exercise required in disclosure applications.
Kennedy v Charity Commissioner [2014] UKSC 20	Confirmed the importance of open justice and public accountability in judicial proceedings.	Supported the court’s emphasis on the significance of open justice principles.
Khuja v Times Newspapers [2017] UKSC 49	Noted the increasing importance of open justice in modern public accountability.	Reinforced the court’s view on the evolving significance of transparency.
SmithKlein Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498	Highlighted the importance of public access to documents referred to in court to avoid gaps in public knowledge of judicial proceedings.	Referenced to support the importance of skeleton arguments and written submissions in open justice.
Hayden v Associated Newspapers Ltd [2022] EWHC 2693 (KB)	Confirmed skeleton arguments as central documents in modern civil litigation and open justice.	Used to emphasize the critical role of written submissions in understanding cases.
Goodley v The HUT Group and Others [2021] EWHC 1193 (Comm)	Addressed the role of objecting parties in raising countervailing factors in disclosure applications.	Supported the view that countervailing factors are primarily raised by objecting parties.
A v British Broadcasting Corpn [2015] AC 588	Outlined the balancing exercise between open justice and legitimate interests of others in disclosure.	Informed the court’s approach to weighing competing interests in disclosure decisions.
Aria Technology Ltd v Revenue and Customs Commissioners [2018] UKUT 111 (TCC)	Discussed the presumption of access to documents held in UT records by non-parties and clarified that access requires justification.	Clarified that no strong presumption of access exists; access must be justified even if the threshold is low.

Court's Reasoning and Analysis

The court began by outlining the common law framework governing disclosure of documents to non-parties, emphasizing that open justice is a fundamental principle but does not confer an absolute right of access. The court carefully analyzed the leading authorities, particularly the Supreme Court’s decision in Dring, which requires a non-party seeking access to documents to show a good reason advancing the open justice principle.

The court clarified that the notion of a 'default position' granting universal access to documents referred to in proceedings is a misunderstanding of the law. Instead, access depends on a fact-specific, proportionality-based balancing exercise considering the purpose of open justice, the value of the material, any risk of harm, and practical considerations such as timing and burden on the tribunal.

The court noted that the appellant’s stated reason—to obtain the documents to enable informed writing about information rights law and certification/contempt proceedings—was minimal but sufficient to meet the low threshold required to justify disclosure. The judge below erred in rejecting this reason without explanation or further inquiry.

Regarding countervailing factors, the court observed there was no risk of harm from disclosure and no disproportionality given the request was made shortly after judgment. The court found the judge had wrongly relied on irrelevant factors such as the appellant’s failure to seek documents from parties first and his desire to keep the application confidential from the parties.

The court emphasized that relying on the judgment’s summary of submissions as a reason to refuse access was misguided, since the judgment might not fully capture all arguments and access to the actual submissions is necessary for proper public scrutiny.

Finally, the court recognized the broader policy considerations and ongoing work by the Civil Procedure Rules Committee and the Tribunals Procedure Committee regarding disclosure rules, but held that the present appeal concerned the common law position in the absence of specific rules.

Holding and Implications

The court ALLOWED the appeal, holding that the judge below erred in law by failing to properly apply the principles from Cape Intermediate Holdings Ltd v Dring and by rejecting the appellant’s stated reason for disclosure without explanation.

As a result, the appellant is entitled to disclosure of the parties’ written submissions and skeleton arguments in the relevant Upper Tribunal proceedings.

The court declined to consider the second ground of appeal, deeming it unnecessary given the disposition on the first ground.

While the decision directly affects the parties by granting access to the documents requested, the court refrained from setting broad new precedent on non-party access to tribunal documents, noting that such issues are better addressed by rule-making bodies and ongoing procedural reforms.