Tribunal refuses application for certification that council was in contempt of court in Freedom of Information case

Judge Armstrong-Holmes found that the council’s failure to comply with the ordered deadline for disclosure was a breach capable of constituting a contempt.

However, the judge decided not to exercise her discretion to certify the matter and send it to the Upper Tribunal.

The appeal concerned requests for information made under the Freedom of Information Act.

A Tribunal decision issued in January 2025 resulted in a substituted decision notice requiring the disclosure of “appropriately unredacted” information.

Haringey subsequently applied for permission to appeal and to be joined as a party to the proceedings.

In February 2025, the Tribunal granted the council's application to be joined as the second respondent and suspended the substituted decision notice pending determination of the application for permission to appeal.

The Tribunal refused permission to appeal on 7 March 2025 and extended the time for compliance with the substituted decision notice to 4pm on 7 April 2025.

On 17 April 2025, which was ten days after the date by which the council was required to have provided the ordered disclosure, the applicant notified the Tribunal by email that the respondent council had failed to comply with the terms of the substituted decision notice.

In that email, he expressed a desire for the council to be made to comply with the Tribunal’s order and he was subsequently provided with form GRC4 for making an application to certify a contempt to the Upper Tribunal.

The applicant subsequently submitted his application to certify a contempt to the Upper Tribunal on 23 April 2025, claiming that the council had failed to comply with the substituted decision notice as ordered by the First-Tier Tribunal.

Haringey eventually complied with the terms of the substituted decision notice on 24 April 2025 - 17 days after the date for compliance.

The information was disclosed accompanied by the following covering message to the Applicant:

“You will have today received by way of e-mail the documents request in the above matter. We are aware that the information was due to be disclosed by us on or around the 11th April 25.

“Many apologies for the delay in disclosing this information as per the last Court Order. The delay is due to a number of factors, the most significant being that the personnel involved in dealing with this matter were not available, so it has taken longer for the Council to ensure that it is disclosing the correct information in compliance with the substituted decision notice from the Tribunal. Furthermore, as some of the personnel were new to the case, we needed to doubly check the information. Once the Council decided not to pursue its application for permission to appeal, this process unfortunately could not be finalised before the expiry of the deadline.

“After the decision not to appeal was made the plan was to disclose as soon as we could, but it simply took time to check all the documents. No disrespect was intended to you or the Court. We trust that, in light of this disclosure, you will now withdraw your contempt of court application, and we would be grateful if you would confirm at your earliest convenience.”

Considering the case, Judge Armstrong-Holmes noted: “Section 61(3) and 61(4) FOIA provide that the First-tier Tribunal may certify an offence to the Upper Tribunal 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.”

The judge rejected the applicant’s contention that Haringey had sought to "drag out proceedings" or had been "playing for time", noting that the council had not become a party to the proceedings until 11 February 2025.

The judge also found that other matters relied upon by the applicant, which pre-dated the council being joined as a party, were not “acts or omissions which are capable by their nature of constituting a contempt”.

However, Judge Armstrong-Holmes took “a rather different view” of the failure to comply with the substituted decision notice.

She said: “A breach of the Tribunal’s order is an omission which is capable of constituting a contempt, and in this instance, the Respondent’s failure to comply with the ordered deadline for disclosure of 7th April 2025 is such a breach. I must therefore go on to decide whether to exercise my discretion to certify and send the matter to the Upper Tribunal.”

The judge was satisfied that the terms of the substitute decision notice were “clear and unambiguous”, in that the order stipulated what was to be disclosed and by when (as varied by Judge Heald on 7 March 2025).

She said: “I consider that the bringing of committal proceedings by the Applicant was the only means by which he could seek enforcement of the Tribunal’s order. It was therefore both an appropriate and legitimate application to make in circumstances where, at the time of his application, the Respondent was yet to comply with the order.”

She continued: “By the time that effect was given to the order for disclosure, compliance was 17 days overdue. It was not simply a matter of being a day or so beyond the date for compliance, and I therefore take the view that this was a serious, rather than a purely technical breach. However, I must additionally have regard to the factors which the Respondent avers combined and led to the breach of the order.”

Concluding the case and refusing the application, Judge Armstrong-Holmes said: “In making his application to certify a contempt to the Upper Tribunal on 23 April 2026, the Applicant was seeking the enforcement of the Tribunal’s order which required the Respondent to provide him with a number of redacted documents. The very next day, the Respondent provided him with the disclosure he was seeking, and apologised, both to him and the Tribunal, for having not complied with the order until that point. Undoubtedly recognising that it had now provided the Applicant with the disclosure he was seeking, and which had been ordered by the Tribunal, the Respondent’s accompanying message invited the Applicant to withdraw his certification application.

“The fact that the Applicant did not withdraw his application, having been provided with the requested disclosure, does not mean that he has acted improperly, but it is nonetheless important to recognise that the breach had been remedied by that stage. Having regard to all of the matters I have discussed, and the fact that what appears to have been a sincere apology was forthcoming upon providing the Applicant with the disclosure he was seeking, and again in the submissions advanced by counsel, I am persuaded, just, not to exercise my discretion to certify and send this matter to the Upper Tribunal.”

Lottie Winson