A freedom of information requester is facing costs in what seems to have been a bit of a shambles before the First Tier Tribunal (FTT). I think this is rather concerning, albeit slightly convoluted, and, frankly, the whole thing is not assisted by a judgment that is strewn with errors and lacks coherence. In what follows I’ve had to piece together some of the information missing, or unclear, from the judgment.
It appears that the requester (AHB) had made a Freedom of Information Act 2000 (FOIA) request to the Royal Mint on 19 June (not July, as the FTT judgment says) 2021 for information about its “Garbled Coin Policy” in relation to repatriated UK currency. On 16 July 2021 The Royal Mint replied with what appears to have been a short narrative response. AHB complained to the Information Commissioner (ICO) on 28 September 2021, and ten months later the ICO held (very peremptorily, and rather oddly, I would say) that the Royal Mint held no information in relation to the original request.
AHB then appealed to the FTT and in a judgment of 3 October 2023 (the “2023 judgment”) the FTT held that the ICO had either or both erred in law, or in the exercise of his discretion, because the Royal Mint held further information in relation to the request. It issued a judgment constituting a substitute decision notice (SDN), under which the Royal Mint was ordered to issue a fresh decision within 35 days of the date on which the SDN was promulgated. The judgment specifically says “Failure to comply with this decision may result in the Tribunal making written certification of this fact pursuant to section 61 of the Freedom of Information Act 2000 and may be dealt with as a contempt of court”. The Royal Mint had chosen not to join itself to those proceedings and neither AHB nor the ICO had applied for it to be joined.
It is not at all clear, from the judgment, what happened next, but it appears that the SDN, with its Order that the Royal Mint issue a fresh response, was not served on the Royal Mint itself (presumably this error arose from its not having been a party, although it was aware of the proceedings). Then, on 9 December 2023, having received no fresh response, and no doubt taking his cue from the SDN, AHB made an application to the FTT under section 61(4) of FOIA for the Royal Mint to be certified to the Upper Tribunal for contempt of court.
It appears that the FTT finally served the SDN on the Royal Mint on 22 December 2023 (the judgment at several points has this as the obviously impossible “22 December 2024”).
One assumes, at this point, that, although the SDN was not served on the Royal Mint until the time of 35 days from 3 October 2023 had already passed, the Order in the SDN still had effect. That being the case, it appears to have been incumbent on the Royal Mint’s lawyers to make an urgent application, for instance for compliance with the Order to be waived, for relief from sanctions and for a new date for compliance to be set. Instead, they did not take action until 3 January 2024, when they wrote to the FTT suggesting that a response would be provided within a further 35 days. However, this was just correspondence – no actual application was made.
Eventually, a response was issued by the Royal Mint in relation to the SDN, on 5 February 2024, more than two-and-a-half years after AHB made his request.
AHB’s application for a contempt certification was still live though, and here I pause to observe that, on the information available, I am not surprised he took no action to withdraw it. He had been vindicated by the FTT’s SDN of 3 October 2023, and he was unaware that the SDN had erroneously not been served on the Royal Mint (in fact, it is not at all clear at what point he did become aware of this). In any case, as no application was made by the Royal Mint for further time, the Order in the SDN must still have been in effect. In fact the judgment alludes to this when it notes that AHB was “indicating” in his contempt application that the final Royal Mint response “was provided 125 days after the Substituted Decision Notice was issued and 90 days later than directed”.
In any event, the FTT declined to certify the failure to comply on time as contempt, because
whilst the Tribunal does consider that the Respondent could have acted more diligently on becoming aware of the Substituted Decision Notice, by applying for an extension of time and requesting permission to extend the time set out in the SDN, the Tribunal does not consider that [the Royal Mint’s lawyer] wilfully avoided complying with the order. The Tribunal accepts that he was simply not aware of the appropriate course of action to take in circumstances where a Court or Tribunal imposed a deadline that had already been missed. In any event, the approach taken is not sufficiently serious to warrant certification to the Upper Tribunal for contempt and the application is refused. [emphasis added]
I will pause here to say that it’s unusual, to say the least, for a court to accept a submission that a solicitor was not aware of what to do when in receipt of an order of a court. Most judges would be quite intolerant of such an argument.
But the story does not end there. In submissions dated 17 July 2024 the Royal Mint then “indicated an intention to pursue an application for the costs ‘of and associated with’ the [contempt] application”. Under rule 10 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 the FTT may make an order in respect of costs but only if it considers that a party has acted unreasonably in bringing, defending or conducting the proceedings.
And, remarkably, the FTT acceded to the costs application, on the grounds that AHB did not withdraw his application for the FTT to certify the Royal Mint’s (undoubted) failure to comply with the 3 October 2023 Order, after he had finally received the fresh response of 5 February 2024. The FTT also took into account AHB’s reference to pursuing a “campaign” to encourage greater transparency.
But does this mean AHB has “acted unreasonably in…conducting the proceedings”? I’m far from convinced (in fact, I’m not convinced). The FTT says
The Tribunal does not consider that it is reasonable (or that any other reasonable person would consider it reasonable) for an application for a party to be certified to the Upper Tribunal for contempt of court to be used as part of a campaign to encourage greater transparency…The Tribunal considers that the obligation to deal with cases fairly, justly, and proportionately in circumstances where the Applicant accepts that he was in appropriately [sic] pursuing a “campaign” for other purposes and where the chances of success in relation to the Tribunal actually certifying the contempt may be limited may justify the making of a costs order against the Applicant.
Well, if I’m to be considered a reasonable person, then I do not think it unreasonable for a person to decide not to withdraw such an application where they have waited more than two-and-half years for an answer from a public authority to a simple FOIA request, and where the public authority has failed to comply with an Order, because its lawyer chose not to acquaint himself with procedural rules. Unreasonableness imposes a very high threshold, and this is shown by the fact that costs awards are extraordinarily rare in FOIA cases in the FTT (from my research I have only found two, in the twenty-odd years FOIA has been in effect, and one of those was overturned on appeal). AHB may have been tenacious, perhaps overly so, and he may have ancillary reasons for (some of) his conduct, but – again – that does not connote unreasonableness.
Costs have not yet been awarded, as the FTT has adjourned for submissions on AHB’s means, and a breakdown of the Royal Mint’s costs.
I should end by saying there may be other material not in the public domain which provides a gloss on AHB’s conduct of the proceedings, but one can (and must) only go on what is in the public domain.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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