Martin Clements v Potto Parish Council [2026] UKFTT 681 (GRC)

[2026] UKFTT 00681 (GRC)Case Reference: FT/EJ/2026/0004
First-tier Tribunal
(General Regulatory Chamber)
Date 08 May 2026
Information Rights
Decided without a hearing
Before
JUDGE HARRIS
Between
MARTIN CLEMENTSApplicantPOTTO PARISH COUNCILRespondentDecision: The Applicant’s application to certify an offence to the Upper Tribunal is granted in respect of:1.Potto Parish Council’s failure to comply with the Substituted Decision Notice dated 17 December 2026; and2.The Council’s failure to comply with the Tribunal’s directions dated 20 February 2026.REASONS

Background to the application

[1]This application relates to alleged breach of compliance with the Tribunal’s decision issued on 17 December 2025 (the “Decision”) in appeal number FT/EA/2025/0154.[2]The issue in the Decision was whether the Information Commissioner (“IC”)’s decision that no further information was held by Potto Parish Council (the “Council”), which is the Respondent for the purposes of this application and was the second Respondent in relation to the original appeal, was in accordance with the law.[3]The Tribunal decided that the Council had breached section 10(1) of the Freedom of Information Act 2000 (“FOIA”) by failing to respond to Mr Clement’s information request dated 11 April 2024.[4]The Tribunal allowed the appeal and issued a Substituted Decision Notice (“SDN”) within the Decision. This read as follows:
“1. Potto Parish Council (the “Council”) breached section 10(1) of The Freedom of Information Act 2000 (the “Act”) by failing to respond to the above request for information within twenty working days. 2. The Council must make a fresh response to the first part of that request for information, item ‘1’, regarding information to support making a complaint about the Council’s auditor (the “Relevant Request”). 3. Subject to paragraph 4 below, the fresh response must: a. specify what further searches were undertaken, including details of what systems and records were searched and what key words were used as search terms in respect of any searches for information which is held electronically; b. specify what other enquiries (if any) were made to identify whether further information is held within the scope of the Relevant Request; c. make clear whether or not any further information (beyond that already disclosed) is held within the scope of the Relevant Request; and d. disclose any such further information if it is held, or claim any relevant exemptions to disclosure pursuant to the Act. 4. The Council is not obliged to respond in accordance with paragraph 3 above if and to the extent that the duty to confirm or deny does not arise in accordance with any applicable provision of the Act. However, if the duty to confirm or deny does not arise then the Council must cite the applicable exemption and its reasons in its fresh response. 5. The Council must issue the fresh response within 35 days of this decision being sent to it, or (if there is an application to appeal this decision) within 28 days after being notified of an unsuccessful outcome to such application or any resulting appeal. 6. The fresh response (and any applicable disclosure of further information pursuant to paragraph 3 above) will be subject to the rights given under section 50 of the Act to make a new complaint to the Information Commissioner. 7. Failure to comply with this decision may result in the Tribunal making written certification of this fact pursuant to section 61 of the Act and may be dealt with as a contempt of court.”
[5]The Decision was sent to the parties on 17 December 2025, so the period for complying with the SDN expired on 21 January 2026.[6]The Applicant made an application to the Tribunal by way of form GRC4 dated 12 February 2026 for the Tribunal to certify a contempt to the Upper Tribunal under section 61 of FOIA. In this, he stated that he had not received any response to his request pursuant to the SDN and that the period for doing so had now expired.[7]I issued directions in the application on 20 February 2026, which directed that the Council should respond to the Applicant’s allegations within 28 days. No response was received either by the Tribunal or the Applicant, within that time period or at all, and no application for extension was received by the Tribunal.[8]The application was determined without a hearing. No request for an oral hearing was received from the Council in response to the Tribunal’s directions, so I consider it to be fair and just to determine the matter on the papers. Applicable law[9]Where the First-Tier Tribunal (“FTT”) has substituted a decision notice for that of the IC, the FTT is responsible for enforcing that substituted decision. This was decided by the Upper Tribunal in Information Commissioner v Moss and the Royal Borough of Kingston upon Thames [2020] UKUT 174 (AAC) (“Moss”).[10]The relevant law is contained in section 61 of FOIA:
“(1) Tribunal Procedure Rules may make provision for regulating the exercise of rights of appeal conferred by sections 57(1) and (2) and 60(1) and (4). …… (3) Subsection (4) applies 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, an (b) if those proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court. (4) The First-tier Tribunal may certify the offence to the Upper Tribunal. (5) Where an offence is certified under subsection (4), the Upper Tribunal may – (a) inquire into the matter, and (b) deal with the person charged with the offence in any manner in which it could deal with the person if the offence had been committed in relation to the Upper Tribunal.” …… (3) Subsection (4) applies 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, an (b) if those proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court. (4) The First-tier Tribunal may certify the offence to the Upper Tribunal. (5) Where an offence is certified under subsection (4), the Upper Tribunal may – (a) inquire into the matter, and (b) deal with the person charged with the offence in any manner in which it could deal with the person if the offence had been committed in relation to the Upper Tribunal.”
[11]As confirmed in Moss, the FTT does not have power to compel a public authority to comply with a substituted decision notice or to actually commit for contempt, but does have the power under these provisions to certify an offence to the Upper Tribunal. Under section 61(4) FOIA, the FTT has a discretion to certify an offence to the Upper Tribunal only where it is satisfied that the requirements of both limbs of section 61(3) have been met i.e. that “a person” has done something or failed to do something in relation to proceedings before the Tribunal in appeals brought pursuant to sections 57 or 60 of FOIA and, if the proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court.[12]There is no mention in FOIA as to the required standard of proof by which the allegation of contempt must be judged. In the ordinary course, given the seriousness of contempt proceedings, the standard of proof by which the contempt must be demonstrated is the criminal standard of beyond reasonable doubt.[13]If such an offence is proven to the required standard, the Tribunal must then consider whether, in all the circumstances of the case, discretion should be exercised so as to certify the offence to the Upper Tribunal.[14]In Navigator Equities Limited v Deripaska [2021] EWCA Civ 1799, the Court of Appeal set out a helpful summary of general propositions of law in relation to contempt, which it considered to be “well-established”: (i). The bringing of a committal application is an appropriate and legitimate means, not only of seeking enforcement of an order or undertaking, but also (or alternatively) of drawing to the court's attention a serious (rather than purely technical) contempt. Thus, a committal application can properly be brought in respect of past (and irremediable) breaches. (ii). A committal application must be proportionate (by reference to the gravity of the conduct alleged) and brought for legitimate ends. It must not be pursued for improper collateral purpose. …… (v) It is generally no defence that the order disobeyed (or the undertaking breached) should not have been made or accepted. (vi) Orders and undertakings must be complied with even if compliance is burdensome, inconvenient and expensive. If there is any obstacle to compliance, the proper course is to apply to have the order or undertaking set aside or varied. (vii) In order to establish contempt, it need not be demonstrated that the contemnor intended to breach an order or undertaking and/or believed that the conduct in question constituted a breach. Rather it must be shown that the contemnor deliberately intended to commit the act or omission in question. Motive is irrelevant. (viii) Contempt proceedings are not intended as a means of securing civil compensation. (ix) For a breach of order or undertaking to be established, it must be shown that the terms of the order or undertaking are clear and unambiguous; that the respondent had proper notice; and that the breach is clear (by reference to the terms of the order or undertaking).[15]A Substituted Decision Notice issued by the FTT may be endorsed with a penal notice, which warns the parties that failure to comply may result in the tribunal making written certification of this fact to the Upper Tribunal and this may be dealt with as a contempt of court. If there is no penal notice, a party can still make an application to certify for contempt. The absence of a penal notice is relevant to whether the Tribunal should exercise its discretion to certify, in circumstances where a contempt has been found.[16]The Upper Tribunal case of Penny Bence v Cornwall Council & Anor [2025] UKUT 420 (AAC) summarised the role of the FTT in relation to an application for contempt in paragraph 96 as follows:
“a. The role of the FTT when deciding whether to exercise the certification power in section 61(4) FOIA is, firstly, to determine whether the relevant person has done something or failed to do something in relation to the appeal before it that by its nature is capable of constituting a contempt had it occurred in proceedings before a court or a tribunal with power to commit for contempt. It is not the FTT’s role to decide whether a contempt has been committed; b. If the FTT concludes this is the position, then, secondly, it will proceed to consider its discretion to certify. In exercising this discretion it will consider, in particular, whether the conduct in question is sufficiently serious as to warrant a contempt inquiry and possibly sanction; c. At the first stage, in assessing whether the act or omission in question is capable of constituting a contempt had it occurred in proceedings before a court or a tribunal with power to commit for contempt, the FTT will bear in mind the ingredients of a civil contempt (which I address at paragraphs 104 – 114 below); d. At the second stage, in exercising its discretion and forming a view as to the seriousness of the matter, the FTT will bear in mind the observations of Lewis LJ (paragraph 91 above); that whether the order was intentionally breached will be relevant to the way the conduct is viewed when it comes to the question of sanction (paragraphs 110 – 114 and 127 below); that applications for contempt should not be disproportionate (paragraph 85 above); the other factors that may impact on the sanction that could be imposed (paragraphs 127 – 128 below); and (where applicable) the role of contempt proceedings where orders are breached by public authorities (paragraphs 98 – 101 below); e. The potential contempt described in the FTT’s certification in effect identifies the “charge” that the Upper Tribunal will then inquire into. Accordingly, it should be formulated with as much clarity as is reasonably possible, albeit not in a way that unduly circumscribes the latter’s role of inquiring into the contempt (as the Upper Tribunal has no jurisdiction to inquire into matters that go beyond the terms of the FTT’s certification).”
Witness evidence

Witness evidence

[17]Mr Clements submitted a witness statement from Gerry Woodhouse dated 22 April 2026. Mr Woodhouse has also in the past appealed against a number of decisions concerning the Council and provided a witness statement in the appeal leading to the Decision. This statement detailed a number of examples of conduct by the Council which he says demonstrate disrespectful and contemptuous behaviour. None of the circumstances described pertain to this appeal, so I found this to be of limited use in deciding the application. Applicant’s submissions[18]The Applicant made submissions on 3 April 2026 in relation to the application. In summary, he made the following points:a. The Council has not contacted him since the Decision was issued, whether by way of response to the SDN or otherwise.b. This is non-compliance with direction 5 of the SDN and an act of contempt. The terms of that direction were clear, unambiguous and sufficiently detailed.c. It must follow that the Council is “guilty of an act or omission in relation to proceedings before the Tribunal which, if those proceedings were proceedings before a court having power to commit for contempt, would constitute a contempt of court”.d. The Council is a “prolific and serial offender” in not responding to the Tribunal’s decisions or directions and the Tribunal should exercise its discretion to certify it for contempt.e. The Council’s failure to respond appears to be “a wilful act of non-compliance”.[19]The Applicant also made submissions on 22 April 2026. In these, he noted that the Council has not responded to the Tribunal’s directions dated 20 February 2026. He also notes that the Council has not denied or disputed that it is in contempt and has not challenged the application for certification. Discussion and conclusions[20]Following the decision of the Upper Tribunal in Bence, I have adopted the stages of consideration for deciding whether to exercise the certification power summarised in that decision.[21]The first step is to determine whether the relevant person has done something or failed to do something in relation to the appeal before it that by its nature is capable of constituting a contempt had it occurred in proceedings before a court or a tribunal with power to commit for contempt. The Tribunal has to decide whether the conduct is capable of constituting a contempt. In considering this, I need to take into account the ingredients of a civil contempt which were discussed by the UT at paragraphs 104-114 of Bence. These include that the order to be enforced should not be ambiguous. The key elements are quoted at paragraph 108 of Bence as follows:
“In FW Farnsworth Ltd v Lacy [2013] EWHC 3487 (Ch) paragraph 20, Proudman J explained the elements that are to prove as follows: “A person is guilty of contempt by breach of an order only if all the following factors are proved to the relevant standard: (a) having received notice of the order the contemnor did an act prohibited by the order or failed to do an act required by the order within the time set by the order; (b) he intended to do the act or failed to do the act as the case may be; (c) he had knowledge of all the facts which would make the carrying out of the prohibited act or the omission to do the required act a breach of the order.”
[22]In the circumstances of this case, I consider that there is clear evidence of failure to act in accordance with the SDN; the Council was ordered to provide a fresh response to the Applicant within 35 days by the SDN and has failed to do so.[23]The second element to consider is whether the Council intended to fail to do the act. Fraser LJ in Buzzard-Quashie v Chief Constable of Northamptonshire Police[2025] EWCA Civ 1397 at paragraph 62 observed that “Intention to commit contempt, or intention specifically to disobey an order, is relevant to the sanction for contempt. It is not a pre-condition to a finding of contempt. This has been the common law for a very long time.” Fraser LJ went on at paragraph 64 to say that the requisite intention is “simply the intention to do the act or omission that constituted the breach of the order, not any intention to interfere with the administration of justice or to commit contempt”. There is no direct evidence of what the Council’s state of mind in relation to the SDN was, but given the fact it has not responded to the application or SDN and has not indicated that there is another reason for non-compliance by making an application for extension of time, I consider the only reasonable explanation is that the Council chose or intended not to comply.[24]As to the third element, the inclusion of paragraph 7 of the SDN made it very clear what the consequences of failing to comply would be. The position is much less clear in relation to the failure to comply with the directions dated 20 February, as these did not carry any such warning.[25]Considering this in the context of the FTT’s role in certifying contempt, I find that the conduct of the Council in not responding to the SDN and Tribunal’s directions is conduct which is capable of constituting contempt; whether in fact it is contempt is a matter for the UT.[26]The first part of the test is therefore satisfied in my view, so I must proceed to consider whether to exercise the Tribunal’s discretion to certify.[27]The Court of Appeal in Moss (Lewis LJ), cited at paragraph 91 of Bence, made it clear that “If the FTT is satisfied that the act or omission is one which by its nature is capable of committing a contempt had it occurred in proceedings before a court or tribunal with power to commit for contempt, then it “will decide whether to exercise its discretion to certify...because, for example the act or omission is sufficiently serious to warrant inquiry and possibly sanction” (paragraph 43, emphasis added).”[28]I must also bear in mind:a. That whether the order was intentionally breached will be relevant to the way the conduct is viewed when it comes to the question of sanction. Here there has been no apology or explanation for the Council’s conduct and this appears to me to be pertinent;b. That applications for contempt should not be disproportionate. In the circumstances of this case, I consider that the application is proportionate and brought for legitimate ends in that there is no other avenue open to Mr Clements to get a reply to his request as the SDN has failed to elicit this;c. the other factors that may impact on the sanction that could be imposed. In the circumstances of this case, it appears from the evidence of Mr Woodhouse that there might be a wider pattern of non-compliance which may merit further enquiry. The failure to respond to the FTT’s directions dated 20 February 2026 is potentially relevant to sanction, as it may indicate a propensity towards non-compliance; andd. the role of contempt proceedings where orders are breached by public authorities. In this context, I consider that there is a strong public interest in the Council (and any authority) complying with both FOIA and the decisions of the Tribunal.[29]For these reasons, I consider that the conduct of the Council in not responding to the SDN is conduct capable of constituting contempt and that it is appropriate for the FTT to exercise its discretion to certify the conduct to the Upper Tribunal for further enquiry and, if appropriate, a decision on sanction. The conduct which I certify to the Upper Tribunal isa. The Council’s failure to comply with the SDN; andb. The Council’s failure to comply with the Tribunal’s directions dated 20 February 2026.