Substituted decision notices and contempt of court

Hot on the heels of the Court of Appeal’s decision in Buzzard-Quashie, where a chief constable was held in contempt of court and fined for failure to comply with a DSAR, a local authority has been held in contempt by the Upper Tribunal, and required to pay £35,000 in costs, for failing to comply with a substituted decision notice issued by the First-tier Tribunal after an Environmental Information Regulations (“EIR”) appeal. The case is Bence v Cornwall Council & Information Commissioner [2025] UKUT 420 (AAC), heard by Heather Williams J.

The facts make sorry reading. After Ms Bence requested information from Cornwall Council about the installation of fixed bollards in Portreath, Cornwall, in January 2023, the Council refused her request under regulation 12(4)(b) EIR as manifestly unreasonable because of the burden of complying with it. Ms Bence refined her request. The Council refused the first part of it under regulation 12(5)(b) EIR on the basis that it was privileged (having initially tried to rely on s.42 FOIA). The Information Commissioner upheld this. But the Council never responded to the second part of Ms Bence’s request. Ms Bence appealed to the FTT, in respect of both parts of her request, and the appeal was determined on the papers. It was allowed in part, with a substituted decision notice (“SDN”) ultimately issued by the FTT in October 2024 requring the Council to disclose further information by 18 November 2024.

The Council then failed to comply with the SDN by 18 November 2024. On 1 December 2024, Ms Bence applied to the FTT to certify the Council as in contempt, and the FTT set directions for that application on 16 December 2024. The Council realised it hadn’t complied with the SDN on 18 December 2024. Five days later, it sent some documents to Ms Bence, copying the FTT, but they did not address all points in the SDN and it did not comply with the FTT’s directions. The reason for non-compliance was said to be that the SDN was sent ‘during a period of annual leave within the team and subsequently overlooked.’

The FTT then set further directions, which the Council again did not comply with. The FTT certified the case for the Upper Tribunal on 4 March 2025. On 10 March 2025, the Council tried again to comply with the SDN, but by reference to extraordinarily broad search terms (including searching for the word ‘complaint’, but omitting any search for the word ‘bollard’).

There was yet further back and forth between Ms Bence, the Council and the FTT where the Council did not address issues head-on, though it did provide additional material on 23 July 2025. The matter was eventually listed for a hearing, at which the initial position of the Council was to assert that it had sought to fulfil its responsibilities in a “proactive, constructive and conscientious manner” and that it had been “disrupted and confused by regrettable circumstances … largely beyond its control.” It asserted that though it had not complied with the SDN, it was not in contempt because this was not deliberate or intentional. It also accused Ms Bence of misleading the FTT and bringing the application for an improper collateral purpose, allegations which counsel for the Council had to withdraw, and apologise for, during the hearing. Indeed, during the hearing it partially and belatedly admitted the allegations of contempt.

Perhaps unsurprisingly against that background, Heather Williams J (who reviewed the legal framework in respect of contempt and the tribunal system extensively and helpfully) found the Council in contempt for failure to comply with the SDN up to 23 July 2025, describing its conduct as “a dismal litany of failings.” Though not all of the certified allegations were made out, those that were made out were “substantial and they reflect poorly on the Council” and “were avoidable and should not have happened.” Moreover, “the Council has been too ready to try and place the blame on others” and the judge “was left with the impression that the Council did not treat its obligations under the EIR or to the FTT with sufficient seriousness”. The sanction imposed was the public judgment of the Upper Tribunal, combined with an order that the Council pay Ms Bence’s costs in the agreed sum of £35,000.

This is an excoriating judgment. It will inevitably be quoted against public authorities by unhappy requesters. But it is also helpful in at least three ways. Firstly, it provides a comprehensive overview of the contempt regime in respect of non-compliance with the FTT’s SDNs, which is likely to be useful to anyone responding to such applications.

Second, it is a salutary reminder of the importance of timely and effective compliance with those SDNs: they are not optional and the consequences of non-compliance can be severe. In conjunction with Buzzard-Quashie, the message is that a public authority that fails to take information rights seriously may well find itself in real trouble.

Third, it illustrates the multiple off-ramps that a well-advised public authority can take to avoid those consequences. There were a significant number of opportunities for the Council to comply with the SDN prior to the finding of contempt, even after its initial failure to comply. Doing so would have likely prevented the application being certified by the FTT, or, even after certification, rendered an investigation into the contempt by the Upper Tribunal unnecessary and disproportionate. The Council’s approach of digging in its heels and refusing, even up to the point of the Upper Tribunal hearing, to make realistic concessions and admissions, served it poorly here. Other public authorities that find themselves in the early stages of such a process would do well to take heed.

John Goss is a barrister at 5 Essex Chambers.

Further reading: Bence v Cornwall Council & Information Commissioner [2025] UKUT 420 (AAC)