Gary Spiers v Garstang Medical Practice

We have concluded that there was no failure to comply with the Tribunal’s Substituted Decision Notice in appeal reference EA/2019/0317 that would constitute a contempt of court if these proceedings were proceedings before a court having power to commit for contempt.

In the light of our decision above we have not gone on to decide whether or not to exercise our discretion to certify any offence of contempt to the Upper Tribunal.

The parties in this case consented to the paper determination of the application. We are satisfied that we can properly determine the issues without a hearing within rule 32(1)(b) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (as amended) (“the rules”).

We have considered the open bundle prepared by the Applicant that has 720 pages as well as his final submissions dated 11 March 2023.

We were also provided with and have considered a copy of the directions dated 7 March 2023 and a “closed bundle” containing one document. It is not clear to us whether the directions were acted upon by Dr Spiers in relation to disclosure of the closed bundle. However, we have reconsidered its contents, consistent with our ongoing duty of review and have decided that the document contained in the “closed bundle” is not relevant to the central issues before us. The document sets out the background which is summarised in the open bundle. It therefore carries little if any weight in our deliberations even if it were to be relevant.

We note that the open bundle contains personal information about the Applicant’s medical conditions and also other personal data relating to the parties in this case and other people whose correspondence is included in the bundle. It is necessary to make an order under rule 14(6) of the rules to protect that data. Thus it is ordered that the Tribunal will hold the documents contained in the open bundle not to be disclosed to any person who is not a party to this application without the leave of this Tribunal. An order will accompany this decision.

The parties in EA/2019/0317 were Dr. Gary Spiers and the Information Commissioner. The Information Commissioner is not a party to these proceedings. The Applicant in this case is Gary Spiers and the Respondent is the public authority, that is the Garstang Medical Practice (Footnote: ¹) (“the Practice”).

The background to the request for information is set out in EA/2019/0317 as follows

On 18 October 2018 the Dr Spiers made his request for information from the Practice under the Freedom of Information Act 2000 (“FOIA”) as set out below

The Practice informed Dr Spiers that it regarded his request for information as vexatious and applied section 14 FOIA in refusing to provide the information under FOIA. The Information Commissioner agreed with the Practice in their decision notice dated 8 August 2019 (reference FS50814768). The Tribunal did not agree with the Information Commissioner’s decision although they indicated that the question of whether the request was a vexatious one was finely balanced (see paragraph 32).

Thus in EA/2019/0317 the Tribunal allowed the appeal and substituted its decision for that of the Information Commissioner as follows

The decision in EA/2019/0317 was promulgated on 3 November 2020. On the same day it was sent by the Information Commissioner’s office by email to a person at the Practice, not one of the partners. The covering email drew attention to the terms of the substituted decision notice and the date for compliance being 14 December 2020.

On 10 November 2020 an email was sent to Dr Spiers in the name of the Practice that stated “The ICO have requested that we send you the attached.”. Although that was a misstatement of the origin of the request this is understandable since it was the Information Commissioner’s office that had notified the Practice of the Tribunal’s substituted decision. In any event we find that this was an action taken within the time period set for compliance with the substituted decision by the Tribunal in EA/2019/0317.

The attachment to the email of 10 November 2020 was identified in the documents by Dr Spiers as “SPIERS_5_12-03-19_P81006_GMS_Contract.pdf”. This document is a lengthy contract entitled the NHS England Standard General Medical Services Contract 2017/18 which was first published in January 2018. Schedule 1 to that contract includes the names of the partners at the date of signature and these provisions -

On 12 November 2020 Dr Spiers wrote to the Practice and the Information Commissioner (copied to the Tribunal) to raise the issue that in his opinion the email of 10 November 2020 did not satisfy the terms of the substituted decision (and purported to extend the terms of the request to the year 2020, see below). He wrote again on 21 November 2020 chasing a response and asking for contact details of the person to deal with.

At 09.31 on 14 December 2020 Dr Spiers followed up his two previous emails and drew attention to the impending deadline due to expire at close of business that day. He attached a further copy of the Tribunal’s decision in EA/2019/0317. He informed the Practice that if he did not hear further he would “escalate” the issue to the Tribunal and thus a prompt response would be welcomed in order to avoid “wasting the Tribunal’s time and Public money”.

At 21.32 on 14 December 2020 Dr Spiers wrote to the Tribunal and copied in the Practice and the Information Commissioner. In that email he requested enforcement of the Tribunal’s decision in EA/2019/0317.

On 5 February 2021 the Practice wrote to the Tribunal in response to case management directions and stated

A further email dated 22 March 2021 from NHS England, addressed to the Practice, states

The email of 22 March 2021 was in answer to an exchange in which the Practice was querying whether there had been any substantive change to the standard “core” contract between 2014 and 2018. In that exchange of correspondence a primary care manager stated

On 10 February 2023 the Practice wrote again to the Tribunal enclosing the exchange of emails referred to above and stating

On the basis of this evidence we find that the contract provided to Dr Spiers on 10 November 2020 by the Practice was in substance the same that had applied in the years 2014-15, 2015-16 and 2016-17.

Dr Spiers sent a Notice of application for certification of a contempt of court to the Upper Tribunal on 22 December 2020. That notice sought enforcement of the decision in EA/2019/0317 pursuant to rule 7A of the Tribunal rules and s61 FOIA.

The act or omission relied upon in the grounds that Dr Spiers said would constitute contempt of court (rule 7A(3)(e)) was an allegation that the Practice had not provided the information ordered by the Tribunal in EA/2019/0317 even though he had reminded them more than once by email of their obligations.

Dr Spiers stated that the outcome he sought was the provision of documents and asked that the dates of his request be extended to 2020 due to the delay in providing the information. He later asked for the dates to be extended to 2021. As pointed out by District Judge Worth, sitting as a Tribunal judge in her directions of 7 March 2023, the only information which was within the scope of the FOIA request and thus the scope of the Tribunal’s decision in EA/2019/0317 was that which was held on the date of the request, therefore that held on 18 October 2018. We agree with DJ Worth that later documents, if any, dating from the period after 18 October 2018 are not part of this Tribunal’s consideration.

The only power of this tribunal is to decide whether or not to certify an offence of contempt to the Upper Tribunal

Throughout the documentation Dr Spiers referred to the Pharmacy that was attached to the Practice, as well as the Practice itself. However, the public authority to whom the substituted decision was directed was the Practice. We again agree with DJ Worth who said “The only provider involved is the Practice, namely Garstang Medical Practice. This is the Public Authority from whom Dr Spiers requested information and the Practice is the only public authority from whom the Tribunal could require compliance with the Freedom of Information Act 2000.” The substituted decision was directed to the Practice and not the Pharmacy and thus the Pharmacy were not subject to any duty to comply.

The reason Dr Spiers says that the document provided by the practice on 10 November 2021 is insufficient to comply with the Tribunal’s substituted decision was that it is the NHS England Standard General Medical Services (GMS) Contract 2017/18 (emphasis added). It is suggested by Dr Spiers that as the document is the ‘standard’ contract for 2017/18 it did not meet the terms of the request which was for the full contract(s) that the Garstang Medical Practice had with the NHS from 2014 to 2018, which he says would have been signed by them. Dr Spiers drew attention to paragraph 28 of the Tribunal’s decision which stated “It may be that the standard obligations from a GMS contract are already publicly available, but it is arguable that the full contracts with the Practice are relevant to assessing if there has been a breach of those specific contracts.”

Dr Spiers suggests that the Practice has failed to comply with the substituted decision because the Practice:

The Practice has submitted that it could not have complied further as it provided the only document relevant to the terms of the request.

The Practice has not provided a final written submission to us, albeit the provision of such a document was not mandatory. Although the Practice appeared at a case management hearing before the Chamber President, its engagement in the substance of the process before us is encompassed in the emails summarised above.

The Upper Tribunal ruled in the case of Information Commissioner v Moss and the Royal Borough of Kingston upon Thames[2020] UKUT 174 (AAC) that it was a matter for the First-tier Tribunal (FTT) to enforce its decisions and not the Information Commissioner.

There is no power to compel a public authority to comply with a substituted decision notice but the power to certify an offence of contempt may operate as an incentive to comply.

The FTT’s jurisdiction as regards certification of offences of contempt to the Upper Tribunal is set out in section 61 FOIA. This section reads, as relevant

This section came into force on 25 May 2018 and therefore applies in this case.

Section 61 FOIA is supplemented by rule 7A of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (the Tribunal rules) as follows

No order will be enforced by committal unless it is expressed in clear, certain and unambiguous language: Harris v Harris [2001] 2 FLR 895 per Munby J at paragraph 288. So far as is possible, the person affected should know with complete precision what it is that they are required to do or abstain from doing.

The application notice should be sufficiently particularised to ensure that the person alleged to be in contempt knows exactly what they are said to have done or have omitted to do, so as to properly defend themselves: Kea Investments Ltd v Eric John Watson & Ors [2020] EWHC 2599 (Ch) per Lord Justice Nugee at paragraph 23.

The burden of proof lies on the Applicant and the standard of proof is the criminal standard: JSC Mezhdunarodniy Promyshellnniy Bank v Pugachev [2016] EWHC 192 (Ch).

In Navigator Equities Ltd & another v Deripaska [2021]EWCA Civ 1799 (hereinafter “Navigator”) the Court of Appeal set out the principles to be applied and the relevant considerations see para 70 et seq. At paragraph 82 the Court of Appeal stated

If a contempt is proven to the required standard, the Tribunal must then consider whether, in all the circumstances of the case, the discretion in section 61(4) FOIA should be exercised to certify the contempt to the Upper Tribunal.

In Rotherham Metropolitan Borough Council v Harron & The Information Commissioner's Office and Harron v Rotherham Metropolitan Borough Council & The Information Commissioner's Office [2023] UKUT 22 (AAC) Farbey J pointed out that

Farbey J went on to emphasise that where an order has not been complied with the FTT should consider all the circumstances in deciding whether certification is a proportionate step. She said that “The interests of the administration of justice are not served by disproportionate contempt orders”, see paragraph 82 of the Harron decision (supra).

Section 50 FOIA gives the Information Commissioner the power to issue a decision notice determining whether a request for information made to a public authority has been dealt with in accordance with FOIA:

A complainant may appeal against the Commissioner’s decision notice, under section 57 FOIA:

The Tribunal’s jurisdiction in any appeal under FOIA is to consider the Commissioner’s decision notice:

Under section 58 FOIA the Tribunal conducts a full merits appeal (de novo) of the Commissioner’s handling of the decision under appeal. The Tribunal does not have jurisdiction to consider and determine whether requests for information that are not part of the decision notice under appeal were dealt with properly by the public authority as recognised by the Upper Tribunal in Birkett v Defra and IC[2012] AACR 32, paragraph 50 “The consideration is limited by the terms of the request for information”.

Thus there are two stages to any decision to certify an offence of contempt. The first is to decide whether we are satisfied that the alleged contemnor has done something, or failed to do something, in relation to proceedings before the First-tier Tribunal on an appeal under those provisions, which if those proceedings were proceedings before a court having power to commit for contempt, the act or omission would constitute contempt of court. The second is to decide whether to exercise the discretion to certify the offence to the Upper Tribunal pursuant to s61(4) FOIA.

The standard of proof to be applied is the criminal standard of beyond reasonable doubt. In other words we must be satisfied so that we are sure of any fact before finding it proved. This reflects the serious nature and potential consequences of allegations of contempt of court.

In considering whether to exercise the discretion to certify the contempt the Upper Tribunal the circumstances of any proven act or omission will be relevant. In this regard if the Tribunal is satisfied that the conduct was intentional or reckless may be a factor tending towards certification while on the other hand accidental, or unintentional non-compliance will not carry the necessary quality of contumacy.

This application has been before the Upper Tribunal in relation to interlocutory matters. In dealing with those matters Upper Tribunal Judge Wright said as follows

Dr Spiers referred us to the case of JS (by her litigation friend KS) v Cardiff City Council [2022] EWHC 707. That case involved breaches of a mandatory order which the Court found amounted to a contempt of court. Steyn J referred with approval to a decision of Collins J in R (JM) v Croydon London Borough Council [2009] EWHC 2474 (Admin), to the effect that a penal notice is not necessary to enable the court to deal with public bodies by means of proceedings for contempt as public bodies would seldom find themselves in the position where committal would be contemplated.

This is consistent with the words of Farbey J in Moss v Royal Borough of Kingston-upon-Thames and the Information Commissioner [2023] EWHC 27. At paragraph 128 Farbey J said in the context of an application made before the coming into force of section 61(3) and (4) FOIA,

This case is about whether the Practice has complied with the substituted decision notice in the case of EA/2019/0317. Dr Spiers alleges that the Practice’s email of 10 November 2020 was insufficient to comply and that the non-compliance was of such degree that the Tribunal should certify an offence of contempt to the Upper Tribunal.

There are therefore two questions for the Tribunal to decide

Within the first question above the Tribunal considered

Question 2 encompasses consideration of whether any breach or failure to comply that has been proven was accidental or wilful.

Dr Spiers made the following submissions as regards the contract provided by the Practice, compliance with the Tribunal’s substituted decision, and the Practice’s email of 5 February 2021, in summary that:

Dr Spiers also made many submissions about aspects of his care, the way in which prescribing decisions were taken, management of the Practice’s list of patients, his records and his concerns that arise about adherence to the various regulatory frameworks he has brought to our attention. None of these matters are issues for us to decide.

Dr Spiers made at least one subject access request to the Practice and others to various bodies including the Information Commissioner. This Tribunal is not seized of those matters. The material requested would be most unlikely to assist the Tribunal in determining the issues in this case because it relates to those bodies’ dealings with Dr Spiers rather than compliance with the substituted decision notice.

There was no issue in this case between the parties that the terms of the Substituted Decision Notice in EA/2019/0317 were sufficiently clear and unambiguous so as to be capable of founding a finding of contempt for breach thereof. The Practice were ordered to disclose the information Dr Spiers had requested under FOIA unless it sought to rely on another exemption under FOIA. The deadline set by the Tribunal was clearly stated.

The obligation imposed by the order was to disclose the requested information by 14 December 2020 or to notify Dr Spiers that the Practice was refusing to disclose the information requested pursuant to another exemption, not section 14.

It is not in dispute that the Practice responded to the obligation imposed upon them and we have found that information was provided to Dr Spiers before the expiry of the deadline for compliance, in the form of the NHS England Standard General Medical Services Contract 2017/18.

The heart of Dr Spiers’ case is that the information that was disclosed pursuant to the substituted decision was not that which he had requested. He submits that the Practice’s email of 10/11/20, and/or the further information provided about the way the contract was constructed and updated, was insufficient to comply with the decision of the Tribunal in EA/2019/0317.

We have reminded ourselves that the request made by Dr Spiers that was the subject of his successful appeal in EA/2019/0317 was as follows -

Dr Spiers was sent a digital copy of the contract for the Practice that was the contract in force at the date of his request. The Practice had worked with NHS England to find out if there was any other version of the contract that could be sent to Dr Spiers. As a result of those enquires by the Practice Dr Spiers was told that any changes during the time period of his request would have been amalgamated into the contract he was provided. He was directed to online sources of the contract. He was told there was no negotiation of that contract on a local or individual level. There was no requirement for what are sometimes know as “wet” signature(s), that is handwritten signatures on a printed copy on paper.

It is not a matter for this Tribunal to determine whether the contract provided would be sufficient to enable regulatory action to be taken against the signatories if appropriate. Our function is solely to determine whether the information provided was that requested and subject of the substituted decision. The request under FOIA dated 18 October 2018 did not include a request for the names of the signatories and referred to the Practice as opposed to the individuals who comprise the Practice at any given time. Thus we find that provision of those names was not necessary to fulfil the FOIA request he made.

The contract was the standard general medical services contract and Dr Spiers is correct in his submission that sections are struck out, but this does not demonstrate that specific variation was made only for this Practice; these are variants of the standard contract to allow for the provisions of different aspects of the service and the reason for the striking out of those passages are explained in footnotes that form a part of the document he has been sent. In so far as those struck out passages demonstrate specific variation for this practice he has the contract as varied for the Practice and thus there is no more to be provided.

We have found that the contract provided to Dr Spiers on 10 November 2020 by the Practice was in substance the same that had applied in the years 2014-15, 2015-16 and 2016-17.

We conclude that the Practice’s email of 10/11/20, was sufficient to comply with the substituted decision of the Tribunal in EA/2019/0317. The later information provided by the Practice and NHS England clarified that there was no further information to be provided to Dr Spiers. We accept that he has been sent all the information within scope of his request made under FOIA on 18 October 2018. As explained earlier in this decision Dr Spiers is not able to extend the dates of that request to bring subsequent information within its scope. There was no breach of the order and no failure to comply with the substituted decision.

Given the decision above there is no need for us to consider whether the Applicant, had a right to complain to the Information Commissioner pursuant to section 50(1) of the Freedom of Information Act 2000 (“FOIA”) in relation to an assertion that the Practice’s response to the Substituted Decision Notice was not in accordance with Part I of FOIA.

We have concluded that the Practice is not 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.

In the light of our decision above there is no need for us to go on to consider the second question about whether we should exercise our discretion to certify a contempt to the Upper Tribunal. Thus we do not deal with Dr Spiers’ submissions as summarised in paragraph 58(c) to (e) above which are relevant only to that aspect of the application before us.

In this case there was no penal notice included in the substituted decision notice. Given our decision that there was no act or omission capable of amounting to a contempt of court it is not necessary for us to consider in this case how that would, if at all, affect our discretion to certify a proven contemptuous act or omission.

The application is refused.