Court of Appeal Upholds High Court's Jurisdiction in Contempt Certification Case: Analysis of Enforcement Powers and Procedural Safeguards Under Article 6

Citation: [2023] EWCA Civ 1438
Judgment on


The case of Derek Moss v The Royal Borough of Kingston-Upon-Thames & Anor provides a significant analysis of the enforcement capabilities of the First-tier Tribunal (FTT), certification of contempt to the High Court, and procedural aspects under the Human Rights Act 1998, particularly Article 6. It also touches upon the interplay between tribunal procedures and the subsequent jurisdiction and inquiry powers of the higher courts. The case examines the scope and nature of the FTT’s discretion in certifying an “offence” of potential contempt of court, and whether the high court’s inquiry is limited to determining sanctions or extends to establishing contempt.

Key Facts

The appeal originates from Derek Moss’s request for information under the Freedom of Information Act 2000, which was not furnished by the Royal Borough of Kingston-Upon-Thames within the prescribed timeframe. After a series of tribunal and court proceedings, the FTT certified an offence due to Kingston’s failure to comply with the FTT’s decision, sending the matter to the High Court for inquiry. The principal issue in the appeal focused on the extent of the High Court’s jurisdiction in relation to the FTT’s certified offence; whether it could re-examine if the omission constituted contempt or simply impose sanctions based on the FTT’s determination.

The case highlights several legal principles:

  1. The statutory framework of the Freedom of Information Act 2000 and its enforcement, including the FOIA appeal mechanism.
  2. The distinction between the role of the certifying body (FTT) and the inquiring body (High Court/Upper Tribunal).
  3. The interpretation of Tribunal Procedure Rules, specifically concerning proceedings involving potential contempt of court.
  4. The applicability and implications of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms concerning fair trial rights and the burden of enforcement of court orders.

The Court of Appeal, through a systematic examination, elucidated that the FTT is empowered to certify conduct which, on its face, may amount to contempt without making conclusive findings. This certification then enables the High Court or Upper Tribunal to conduct an independent inquiry into whether such conduct would indeed constitute contempt. The appellate court stressed that the FTT does not need to perform a detailed analysis of the contempt law or its application to facts, but rather should decide if the conduct is of the nature that might warrant a sanction.


The Court of Appeal upheld Farbey J’s decision, concurred that the High Court has full jurisdiction to determine both the existence of contempt and the appropriate sanctions, and dismissed the appeal. It further emphasized that Mr. Moss’s involvement in the proceedings did not breach his rights under Article 6 of the Convention. The decision elaborates the operational dynamics between inferior tribunals, such as the FTT and superior courts, demonstrating the procedural safeguards in enforcement proceedings, including the rights of the parties involved and the due process considerations.


The decision in Derek Moss v The Royal Borough of Kingston-Upon-Thames & Anor clarifies the scope of certification by the FTT and the subsequent role of the High Court in cases of alleged contempt arising from tribunal proceedings. It upholds the framework that safeguards the efficiency and fairness in the enforcement process, with due regard for the rights enshrined under Article 6 of the Human Rights Convention. The principles applied and clarified in this case offer guidance to UK legal professionals on the relation between lower tribunals and higher courts in the context of compliance with tribunal decisions and court orders.