The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Loss for Moss

19 December 2023

The Court of Appeal in Moss v Kingston-Upon-Thames RLBC [2023] EWCA Civ 1438 considered the powers of the FTT, the UTT and the High Court in proceedings to commit a litigant for contempt arising in FOIA proceedings.

Section 61 FOIA allows the Tribunal to certify an offence to the Upper Tribunal where there if the same event had occurred in “proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court”.

That has to be read with (as applicable at the time) paragraph 8 of Schedule 6 to the Data Protection Act 1998, which provides that where a matter is certified as an offence to the High Court “the court may inquire into he 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.

In Moss, it was alleged that the local authority had failed to give Mr Moss the advice and assistance which the FTT had directed it should, for him to reformulate his request. Mr Moss invited the FTT to find that this was a contempt and the FTT certified an offence to the High Court, that offence being the failure of the local authority to comply with the terms of the FTT’s decision. 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.

Mr Moss appealed on the basis that the High Court – he said – did not have jurisdiction to determine whether the omission amounted to a contempt of court because that had already been determined by the FTT upon certification.

The Court held that, although read out of context, the wording of s61 could suggest that it was for the FTT to determine whether a matter amounted to a contempt of court, the correct reading was that the FTT could only determine whether a matter was capable of amounting to such a contempt. The Court of Appeal referred to paragraph 8 of Schedule 6 in reaching this conclusion: the words in s61 are not intended to mean that the FTT must make a final, conclusive and binding determination of whether or not, applying the law of contempt, the conduct is a contempt.

Further reading Moss v Kingston-Upon-Thames RLBC [2023] EWCA Civ 1438

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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