First-tier Tribunal (General Regulatory Chamber)

FT/EJ/2024/0007 - [2025] UKFTT 01318 (GRC)

Fecha: 22-Oct-2025

Applicable law

Applicable law

15.

Where the First-Tier Tribunal (“FTT”) has substituted a decision notice for that of the Commissioner, the FTT is responsible for enforcing that substituted decision. This was decided by the Upper Tribunal in Information Commissioner v Moss and the Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC) (“Moss”).

16.

The relevant law is contained in section 61 of FOIA:

“(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.”

17.

As confirmed in Moss, the FTT does not have power to actually commit for contempt, but does have the power under these provisions to certify an offence to the Upper Tribunal. Under section 61(4) FOIA, the FTT has a discretion to certify an offence to the Upper Tribunal only where it is satisfied that the requirements of both limbs of section 61(3) have been met i.e. that “a person” has done something or failed to do something in relation to proceedings before the Tribunal in appeals brought pursuant to sections 57 or 60 of FOIA and, if the proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court.

18.

There is no mention in FOIA as to the required standard of proof by which the allegation of contempt must be judged. In the ordinary course, given the seriousness of contempt proceedings, the standard of proof by which the contempt must be demonstrated is the criminal standard of beyond reasonable doubt.

19.

If such an offence is proven to the required standard, the Tribunal must then consider whether, in all the circumstances of the case, discretion should be exercised so as to certify the offence to the Upper Tribunal.

20.

In Navigator Equities Limited v Deripaska [2021] EWCA Civ 1799, the Court of Appeal set out a helpful summary of general propositions of law in relation to contempt, which it considered to be “well-established”:

The bringing of a committal application is an appropriate and legitimate means, not only of seeking enforcement of an order or undertaking, but also (or alternatively) of drawing to the court's attention a serious (rather than purely technical) contempt. Thus, a committal application can properly be brought in respect of past (and irremediable) breaches.

ii.

A committal application must be proportionate (by reference to the gravity of the conduct alleged) and brought for legitimate ends. It must not be pursued for improper collateral purpose.

……

(v)

It is generally no defence that the order disobeyed (or the undertaking breached) should not have been made or accepted.

(vi)

Orders and undertakings must be complied with even if compliance is burdensome, inconvenient and expensive. If there is any obstacle to compliance, the proper course is to apply to have the order or undertaking set aside or varied.

(vii)

In order to establish contempt, it need not be demonstrated that the contemnor intended to breach an order or undertaking and/or believed that the conduct in question constituted a breach. Rather it must be shown that the contemnor deliberately intended to commit the act or omission in question. Motive is irrelevant.

(viii)

Contempt proceedings are not intended as a means of securing civil compensation.

(ix)

For a breach of order or undertaking to be established, it must be shown that the terms of the order or undertaking are clear and unambiguous; that the respondent had proper notice; and that the breach is clear (by reference to the terms of the order or undertaking).

21.

A Substituted Decision Notice issued by the FTT may be endorsed with a penal notice, which warns the parties that failure to comply may result in the tribunal making written certification of this fact to the Upper Tribunal and this may be dealt with as a contempt of court. If there is no penal notice, a party can still make an application to certify for contempt. The absence of a penal notice is relevant to whether the Tribunal should exercise its discretion to certify, in circumstances where a contempt has been found.