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

We have considered the issues in turn for both of the orders and, for the reasons set out above, in respect of all parties concerned.

The first main issue is - Is the Respondent guilty of any act or omission in relation to proceedingsbefore the Tribunal which, if those proceedings were proceedings before acourt having power to commit for contempt, would constitute a contemptof court? This breaks down into the following issues.

Whether the terms of the Substituted Decision Notice and/or the anonymity order in EA/2023/0390were sufficiently clear and unambiguous so as to be capable of founding a finding of contempt for breach.

If so, what were the obligations imposed on the Respondents by the Substituted Decision Notice and/or the anonymity order?

Whether the acts of the Respondent (for example, the sending of some information to T) were sufficient to comply with the decision of the Tribunal?

Does either of the Applicants have a right to complain to the Information Commissioner pursuant to section 50(1) of the Freedom of Information Act 2000 (“FOIA”) in relation to the assertion that the response to the Substituted Decision Notice was not a sufficient response to their information request? We understand that the Applicant may be raising issues with the Information Commissioner about redactions to the information that has been supplied by the Respondent, and potentially the Information Commissioner can also consider whether (on the balance of probability) further information is held. However, this does not affect our finding that the Respondent was in breach of the Substituted Decision Notice in the first Tribunal decision due to partial and late compliance.

We therefore find that the Respondent is guilty of acts/omissions in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute a contempt of court. These are the failure to comply with the Substituted Decision Notice and the breach of the anonymity orders.

If the Respondent is “guilty of an 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 a contempt of court”, should the Tribunal exercise its discretion to certify a contempt? We have considered this issue carefully in relation to each of the breaches, which has included taking into account whether the breach was accidental or wilful. We have also taken account of the words of Mrs Justice Rose in JSC Mezhdunarodniy Promyshellnniy v Pugachev [2016] EWHC 192, that “The court needs to exercise care whenit is asked to draw inferences in order to prove contempt…. Circumstantial evidence can berelied on to establish guilt. It is however important to examine the evidence with care to seewhether it reveals any other circumstances which are or may be of sufficient reliability andstrength to weaken or destroy the Bank's case. If, after considering the evidence, the courtconcludes that there is more than one reasonable inference to be drawn and at least one of themis inconsistent with a finding of contempt, the claimants fail.” (paragraph 41(iii)).

The failure to comply with the Substituted Decision Notice. We have found on the facts that the required information has now been provided to the extent that it was held, but it was not all provided within the required time. The majority of the information was provided on 4 July 2024 (which is slightly less than three months late). Some further information was provided later, in December 2024 and January 2025. We have accepted Mr Nelson’s evidence that retrieving this information required a search of secure databases at the local authority. The fact the information has now been provided does not prevent the application from succeeding – Navigator Equities makes clear that a committal application can properly be brought in respect of past (and irremediable) breaches. However, this situation is very different from some of the authorities referred to by the Applicant, where there was either no compliance at all, or the compliance was years rather than months late.

The critical issue is the incomplete, partial disclosure made on 30 March 2024. The Applicant makes the point that the Respondent has not provided an explanation for this from the person who made the decision to act in this way at the time. The Respondent’s previous representations to the Information Commissioner about there being a large volume of documents indicate that it knew that more material was covered by the request than was disclosed on 30 March 2024. There is no witness statement that deals with this issue, and no witness who had direct knowledge of the reasons for this incomplete disclosure appeared at the hearing.

We have looked at whether, on the evidence we have, we are in a position to find that the Respondent deliberately intended to breach the order. We have been cautious about drawing this inference if there is more than one inference that can be drawn from the evidence. We have considered the evidence from Mr Nelson that the School and the Headteacher were “absolutely overwhelmed” during this time. This is an explanation that was provided for the first time during the hearing, meaning that the Applicant could not have taken it into account when deciding whether to bring these proceedings. However, Mr Nelson repeated this a number of times, and we accept his evidence. It was clear that, in his professional opinion as a senior leader, the School and Headteacher were not coping with all the matters they had to deal with at this time. The disclosure on 30 March 2024 was obviously an unsatisfactory way to comply with the Substituted Decision Notice. We are not satisfied, however, that this breach was deliberate and/or wilful, taking into account the overwhelm faced by the school and Headteacher at the time. It is unclear whether this was intended to be a full disclosure, but substantial further information was then provided on 4 July 2024 (after it became clear that 5 Dimensions Trust were unable to help with the matter).

The Substituted Decision Notice did not contain a penal notice. This means that the Respondent was not made directly aware of the potential consequences of non-compliance. This can be relevant to the issue of whether we exercise our discretion to certify a contempt, but it was not a decisive factor in this case.

We have taken into account the detailed written submissions from the Applicant and why she says this act or omission was deliberate and wilful. The Applicant’s final submission at the hearing was that much remains unexplained about what happened, and that the motive and purpose have been concealed. We have some sympathy with how the position may reasonably have been perceived from the Applicant’s perspective.

Based on the evidence, we have considered carefully whether, on the facts, we should exercise our discretion to certify contempt. Having done so, we find that the breach is not sufficiently serious to justify doing so. Accordingly, we do not exercise our discretion to certify a contempt for this breach.

The breach of the anonymity order. This breach occurred because 5 Dimensions Trust was involved in a due diligence process relating to the School becoming part of the Trust (and no longer being part of the Respondent) and because the Trust was seeking to help with resolving the dispute with the Applicant. The disclosure of the Applicant’s identity was an error. 5 Dimensions Trust was not permitted to receive information that was covered by the anonymity order. However, this happened because of a desire to ensure compliance with the Applicant’s outstanding information request and with the Substituted Decision Notice in the first Tribunal decision. Again, we have taken into account the detailed written submissions from the Applicant, and note what she says about this having a destabilising effect on the family. To the Applicant, the breach of the anonymity order appears to have been intentional. Nevertheless, having taken into account the evidence and the reasons for the breach, we find that the breach is not sufficiently serious to justify a certification of contempt. Accordingly, we do not exercise our discretion to certify a contempt for this breach.

The Applicant made the argument that the Respondent’s breaches are aggravated by its failure to apologise for or rectify them. We agree that this can be relevant in an appropriate case. We do not find in this case that any such failure is sufficient to cause us to exercise our discretion to certify a contempt. We note that the breach in relation to the Substituted Decision Notice has now been rectified, the breach of the anonymity order was stopped after only three individuals within 5 Dimensions Trust became aware of the Applicant’s identity in error, and Mr Nelson did provide some apologies in his witness statements.

The Applicant’s written submissions say that certification is reserved for serious, deliberate, and harmful defiance of judicial authority, and “that is precisely what has occurred here”. We can understand why, in the circumstances, the Applicant would seek to advance this argument. However, having considered all the evidence we do not agree that the Respondent’s conduct meets this threshold.

For the reasons given above, we do not certify a contempt to the Upper Tribunal in this case. We dismiss the application.