When Will a Tribunal Not Refer Breaches of Directions for Contempt of Court?

NCN: [2026] UKFTT 00982 (GRC) Case Reference: FT/EJ/2025/0011 First-tier Tribunal (General Regulatory Chamber) Enforcement Heard on: 22 nd April 2026 by Cloud Video Platform Decision given on: 01 July 2026 Before JUDGE ARMSTRONG-HOLMES JUDGE SAWARD Between [APPELLANT] Applicant and THE NURSING AND MIDWIFERY COUNCIL Respondent Representation : For the Appellant: Professor Mark Engelman of counsel For the Respondent: Mr John Fitzsimons of counsel Decision: The application is refused. REASONS Background and Chronology 1. This is an application to certify an offence or offences to the Upper Tribunal relating to an information rights appeal in this Tribunal with the reference FT/EA/2025/0091. The application was first submitted on 21 st February 2025 following the Respondent’s failure to comply with a number of the Tribunal’s directions, which included the directions of 7 th April 2025, 7 th August 2025 and 18 th September 2025.

2. Permission was subsequently granted by the Tribunal on 24 th November 2025 and 23 rd February 2025 for the application to include subsequent breaches of the Tribunal’s directions of 6 th October 2025 and 24 th November 2025, and for the failure to attend a case management hearing before the Chamber President on the second of those dates.

3. The appeal itself, which was heard on 21 st April 2026, related to an appeal against the Information Commissioner’s (“the Commissioner”) decision that the Respondent did not hold any further information within the scope of the [APPELLANT]’s request for information in the following terms: “I am looking for historic details of registration of nurses for two individuals, specifically the date they left the register of nurses. One is [NAME] who registered on 1 Dec 1959 under her maiden name. For reasons of fact checking a biography, I would like to know when [NAME] deregistered as a nurse. The second name is [NAME], DOB Jan 1950. I do not have the date of registration but would like to know both the date of registration and the date of deregistration. This is for the same purpose of historical accuracy in fact checking biographical details.” 4. On 7 th April 2025, Judge Sanger issued case management directions which required that the Respondent was by 30 th April 2025 to provide the Tribunal with a witness statement and/or written submissions which answered a number of questions as follows: (i) What is the regulatory framework under which the requested information is or was held? (ii) How have you acquired records from previous regulatory bodies and how is that information held now? (iii) How is/was the information held and who has access to it? (iv) What records are held regarding nurses? How long are records held? (v) Does the answer to this question differ with considering information held prior to the introduction of the online register in 2008? (vi) What information do you hold on this named individual? (vii) Is the organisation under a duty to pass information of this nature onto the National Archives? 5. The Respondent failed to comply with those directions by 30 th April 2025 as required.

6. On 7 th August 2025, Judge Saward noted the failure of the Respondent to comply with the previous directions of Judge Sanger and granted a retrospective extension of time for the Respondent to comply with those directions by 29 th August 2025. Judge Saward further directed that a Compliance Hearing would take place on 18 th September 2025 at 11am. Judge Saward confirmed that the hearing would be cancelled if both parties provided the Tribunal with completed Certificates of Compliance by 12 th September 2025, which confirmed that the matter was ready for an appeal hearing. The directions confirmed that “All parties are required to attend or be represented at the Compliance Hearing unless and until they are notified that it has been cancelled.” .

7. The Responded failed to answer any of the questions by the extended date of 29 th August 2025 and additionally failed to provide the Tribunal with its completed Certificate of Compliance.

8. On 5 th September 2025, the Commissioner emailed the [APPELLANT] and the Respondent regarding the appeal and specifically addressed the lack of compliance with the Tribunal’s directions by the Respondent: “I note with concern however that, so far as I am aware, the NMC has not provided the submissions sought by the Tribunal in the attached directions, which were due on 29 August. I have certainly not received the same for inclusion in the hearing bundle for EA/2024/0359, and have chased this with both the NMC and the Tribunal today to no avail.” 9. Following a further email from the Commissioner to the Respondent, chasing a response, on 5 th September 2025, the Respondent’s Customer Information and Data Requests Manager replied on 8 th September 2025 , stating that “I have had a look at this and there are questions which I am unable to answer and have had to direct to our Archives team, I have expressed the urgency and have asked for a reply today if at all possible. I will come back to you as soon as I have heard from them.” . The Commissioner replied on the same date to stress the need for any response to the directions to be sent directly to the Tribunal.

10. Following the Respondent being chased by the Commissioner again on the morning of 9 th September 2025, the Customer Information and Data Requests Manager responded shortly afterwards and apologised for having been “unable to complete [the response] in full yesterday as planned.” . He then confirmed that he was now in a position to respond to the Tribunal’s directions in relation to the questions originally posed by Judge Sanger, and an emailed response was sent to the Tribunal shortly thereafter on the same date.

11. The [APPELLANT] submits that the answers provided by the Respondent to questions two, three, four and six amounted to breaches of the Tribunal’s directions, in that the responses given were inadequate or failed to answer the question posed. However, on 18 th September 2025, Registrar Bamawo held a Compliance Hearing as directed by Judge Saward on 7 th August 2025. The Respondent failed to attend that hearing where both the [APPELLANT] and the Commissioner attended, but having heard from those parties, and having considered the framing of question six, he took the view that “there may be some misunderstanding of the Judge’s directions.” . The Registrar directed the [APPELLANT] to “provide draft directions sought to clarify the issues raised in relation to the NMC submissions by no later than 03 October 2025.” , which were subsequently received by the Tribunal on 1 st October 2025 by email.

12. Judge Harris considered those proposed directions on 6 th October 2025 but ultimately decided to modify the questions to be answered by the Respondent by 5pm on 21 st October 2025 in relation to one of the named persons in the original request for information. Those further seven questions were as follows: “a. In addition to the records mentioned in the response of 9 September 2025, what records does NMC hold relating to [NAME] on any of the following: (i) The National Digital Archives of Datasets and/or (ii) digital audio tapes or look-up tables in .txt file format and/or (iii) SPRINT system and/or Workflow and Information Solution for Effective Regulation, (WISER) and/or (iv) Digital files from Central Midwifery Board. b. What searches of the microfilm referred to in answer 3 of the response dated 9 September 2025, including searches for PINs, were conducted for information about [NAME] by the Records & Archives team? c. What searches of records in digital format were undertaken? d. What, if any, additional information does the NMC hold about [NAME] which was not disclosed in the response dated 9 September 2025?” 13. On 25 th October 2025, and in the absence of any response from the Respondent in compliance with Judge Harris’s directions, the [APPELLANT] submitted her initial application to certify an offence to the Upper Tribunal. Following receipt of that application, the Chamber President, Judge O’Connor, directed that there was to be a Case Management Hearing on one of four proposed dates, namely 18, 19, 24 or 25 November 2025, and that all parties were required to attend the hearing. Both the [APPELLANT] and the Commissioner responded to inform the Tribunal of their preferred dates, but there was no communication from the Respondent. The hearing was subsequently listed on 24 th November 2025 before Judge O’Connor.

14. On 11 th November 2025, the Respondent provided its answers to the seven questions posed by Judge Harris in her directions of 6 th October 2025 by email. The [APPELLANT] submits that each of those answers either failed to answer or did not sufficiently answer the specific question posed.

15. On 24 th November 2025, a case management hearing, attended by both the [APPELLANT] and the Commissioner, was heard by Judge O’Connor. The Respondent failed to attend the hearing. Judge O’Connor made a number of directions at that hearing, including that appeals FT/EA/2024/0359 and FT/EA/2025/0091 were to be heard together, and that the application for certification for contempt was to be heard following the hearing of the two appeals. At that time, the listing window for the appeals and the hearing in respect of the application to certify an offence was confirmed to be between 2 nd February to 20 th March 2026, and the parties were required to provide the Tribunal with any dates to avoid by 5 th December 2025. Judge O’Connor additionally directed as follows (at paragraph 10): “By no later than 14 days before the date set for the hearing, the NMC must file and serve a witness statement from an appropriate person within the organisation, providing detailed evidence addressing the asserted failure to comply with the Tribunal’s directions, and the failure to attend the hearing of 24 th November 2025. The author of the statement must be available to attend the hearing and be prepared to provide oral evidence to the Tribunal, if the Tribunal considers this necessary.” 16. Judge O’Connor additionally directed as follows (at paragraph 15): “By no later than 28 days before the date set for hearing, the NMC must send to the [APPELLANT] a copy of any witness statements, other evidence, written submissions, case law or guidance it seeks to rely upon in responding to the contempt application.” 17. On 27 th November 2025, the Customer Information and Data Requests Manager of the Respondent replied to an email from the Commissioner of 20 th November 2025, stating “Thank you for your email. I only saw this on Mon as I was engaged with other tasks last Fri. We have not heard anything further from the Tribunals Service and wondered if you were able to confirm if the hearing went ahead on Monday and assuming it did, was there any indication of when a decision would be communicated.” . The Commissioner responded to that email on 28 th November 2025, confirming that the case management hearing went ahead and provided the cases management directions, which had previously been sent to the Respondent and the other parties to the appeal by the Tribunal on 28 th November 2025. The Commissioner advised the Respondent to refer the matters to its legal department in view of the proceedings relating to the application to certify an offence to the Upper Tribunal. The Respondent did not reply until 1 st December 2025, but confirmed that this matter had now been referred to the Head of Service and would be referred to its legal department.

18. On 5 th December 2025, the Respondent’s General Counsel wrote to the Tribunal and the parties to explain that the matter has only just been brought to their attention. They apologised for the failure to comply with a number of the Tribunal’s directions and stated that they were currently investigating the reasons why this had occurred and would provide a “full and frank explanation” for this at the next hearing. The letter went on to explain that the matter was now being handled by the Respondent’s General Counsel team, and they were now in the process of reviewing all of the documents and correspondence and would ensure that all directions were complied with from this point. It was additionally explained that dates to avoid for the purposes of listing a hearing would be provided separately. The Tribunal was provided with those dates shortly thereafter on the same date.

19. On 29 th January 2026, having sought further dates to avoid from the parties, the Tribunal listed the hearing of the two appeals on 21 st April 2026.

20. On 23 rd March 2026, the Respondent provided the Tribunal with its written submissions and a number of other supporting documents, including the witness statement of Ben Wesson and his exhibits, in response to the application to certify offences to the Upper Tribunal.

21. The Application alleges that the Respondent is guilty of twenty-three acts or omissions which are capable of constituting a contempt of court, and applies for these offences to be certified to the Upper Tribunal. The Law 22. Section 61(3) and 61(4) of the Freedom of Information Act 2000 (“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.

23. Section 61(5) FOIA provides that where an offence is certified to 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.

24. Under Rule 7A(2) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, an application to certify an offence to the Upper Tribunal “must be made in writing and must be sent or delivered to the Tribunal so that it is received no later than 28 days after the relevant act or omissions (as the case may be) first occurs.”. Rule 7A(3) provides that an application must include – (a) details of the proceedings giving rise to the application; (b) details of the act or omissions (as the case may be) relied on; (c) if the act or omission (as the case may be) arises following, and in relation to, a decision of the Tribunal, a copy of any written record of that decision; (d) if the act or omission (as the case may be) arises following, and in relation to, an order of the Tribunal under section 166(2) of the Data Protection Act 2018 (orders to progress complaints), a copy of the order; (e) the grounds relied on in contending that if the proceedings in question were proceedings before a court having power to commit for contempt, the act or omission (as the case may be) would constitute a contempt; (f) a statement as to whether the applicant would be content for the case to be dealt with without a hearing if the Tribunal considers it appropriate and (g) any further information or documents required by a practice direction.

25. 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.

26. In Moss v Royal Borough of Kingston-upon-Thames and the Information Commissioner [2023] EWCA Civ 1438 , the Court of Appeal considered the test to be applied by the First-tier Tribunal when deciding whether to certify an offence to the High Court (now the Upper Tribunal), and determined that there was a two-stage test [32-52], which is as follows: (1) The First-tier Tribunal must determine firstly whether a person is guilty of an act or omission which is capable by its nature of constituting a contempt; and (2) Secondly, if it determines that a person is guilty of an act or omission which by its nature is capable of constituting a contempt, it will then decide whether to exercise its discretion to certify and send the matter to the Upper Tribunal.

27. The Court of Appeal gave further guidance at [44] as to how the First-tier Tribunal should approach this exercise, which was as follows: “In deciding whether an act or omission is something which would be capable by its nature of constituting a contempt, the FTT is not intended to undertake a detailed analysis of the law relating to contempt, nor the application of the law of contempt to the facts. Rather the FTT is considering simply whether the act or omission would be capable of constituting a contempt. In this context, the acts or omissions are ones involving breach of rules, directions or orders of the FTT governing the conduct of an appeal. It should be relatively straightforward in most cases to determine whether the act or omission (i.e. a breach of a rule, direction or order) is by its nature such as would be capable of constituting contempt. In the present case, for example, the omission (admitted by Kingston) was the failure to comply with an order of the FTT. Such an omission, by its nature, would be capable of constituting a contempt. The FTT was not required to deal with the questions of whether service of the order on Kingston as a party was required for the omission to be capable of constituting a contempt or whether notice of the order was sufficient for those purposes. Nor was it necessary for the FTT to determine whether or not individuals within Kingston had the mens rea necessary for the omission to amount to a contempt by Kingston. Those factual matters, and in particular, the final determination of those matters were for the High Court (now the Upper Tribunal).” 28. In Penny Bence v Cornwall Council [2025] UKUT 420 (AAC) , Mrs Justice Williams DBE, Chamber President of the Upper Tribunal (Administrative Appeals Chamber)) at [94] confirmed that although the decision in Moss considered the position before the amendments to section 61 FOIA were brought in by the Data Protection Act 2018 , when the exercise of the First-tier Tribunal’s certification power led to transfer of the case to the High Court (rather than the Upper Tribunal), “There is no doubt that Lewis LJ’s careful and detailed analysis (a paragraphs 35-52) applies equally to the current power to certify the contempt for transfer to the Upper tribunal. As I have noted the legislative powers are materially the same and during his discussion of this issue, Lewis LJ made multiple references to the same position applying under the new section 61 FOIA.”.

29. 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 civil contempts at [81], 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) Issues and Evidence 30. The Tribunal had been provided with a number of documents in advance of the oral hearing, which have been read and considered, in addition to the oral submissions advanced at the hearing. The documents were as follows: i. [APPELLANT]’s GRC4 applications of 21 st February 2025 and 6 th April 2026; ii. [APPELLANT]’s ‘Sheet to 4.1 of Amended GRC4 dated 6 April 2026’ (9 pages); iii. Respondent’s written submissions of 23 rd March 2026 (21 pages); iv. Respondent’s case law bundle (302 pages); v. Respondent’s Annex A – Schedule of allegations and NMC Responses (21 pages); vi. Witness Statement of Ben Wesson, dated 23 rd March 2026, and accompanying Exhibits (17 pages);

31. The issues for the Tribunal to determine are therefore firstly, whether the Respondent is guilty of any acts or omissions which are capable by their nature of constituting contempts, and secondly, if the Tribunal determines that there are any such acts or omissions, it will then need to decide whether to exercise its discretion to certify and send the matter(s) to the Upper Tribunal.

32. In summary, the [APPELLANT] alleges that the twenty-five relevant acts or omissions of the Respondent are as follows: (1) Failing to comply with Judge Sanger’s directions of 7 th April 2025 by 30 th April 2025. (2) Failing to comply with Judge Saward’s directions of 7 th August 2025 by the extended deadline of 29 th August 2025. (3) Failing to provide the Tribunal with a completed Certificate of Compliance by 12 th September 2025. (4) Failing to attend or be represented at the Compliance Hearing of 18 th September 2025. (5) Following the expiry of the extended deadline set by Judge Saward for responses to the 7 questions posed by the Tribunal, the Respondent failed to disclose all of the records it had acquired in response to Question 2. The [APPELLANT] avers that the only record which the Respondent claims to have acquired from previous bodies were of two types, namely ‘Red Books’ and microfilm. However, The National Archives, which received records from the Respondent, refers to: a SPRINT register, two digital audio tapes (DAT), seven .txt ‘look up tables’ and an email containing a database received from the Respondent. (6) Following the expiry of the extended deadline set by Judge Saward for responses to the 7 questions posed by the Tribunal, the Respondent failed to properly answer Question 3, in that the Respondent refers only to two of its many records. (7) Following the expiry of the extended deadline set by Judge Saward for responses to the 7 questions posed by the Tribunal, the Respondent provided an answer to Question 4 which conflicted with the answers provided to Question 2. (8) Following the expiry of the extended deadline set by Judge Saward for responses to the 7 questions posed by the Tribunal, the Respondent failed to properly answer Question 6, in that the answer required was either “some” or “none”. (9) Following the issuing of Registrar Bamawo’s directions of 19 th September 2025, the Respondent did not take any steps to cooperate with the [APPELLANT], despite being directed to do so. (10) Following Judge Harris’s direction of 6 th October 2025 that the Respondent was to provide answers to her modified Questions by 5pm on 21 st October 2025, the Respondent failed to comply with that direction. (11) Following Judge O’Connor’s directions of 29 th October 2025, the Respondent failed to comply with those directions by not providing any dates to avoid for the purposes of listing a Case Management Hearing in November 2025. (12) That the Respondent breached Judge Harris’s directions of 6 th October 2025 by providing answers to the modified questions 21 days after the after the deadline for doing so had passed. (13) That the Respondent failed to sufficiently answer Question a(i) of Judge Harris’ modified questions of 6 th October 2025. (14) That the Respondent failed to sufficiently answer Question a(ii) of Judge Harris’ modified questions of 6 th October 2025. (15) That the Respondent failed to sufficiently answer Question a(iii) of Judge Harris’ modified questions in relation to the SPRINT and WISER systems of 6 th October 2025. (16) That the Respondent breached Judge Harris’ directions of 6 th October 2025 by stating that it did not hold information on [NAME] on its “current computerised NMC register” in response to question a(iii). (17) That the Respondent failed to sufficiently answer Question a(iv) of Judge Harris’ modified questions of 6 th October 2025. (18) That the Respondent failed to answer Question (b) of Judge Harris’ modified questions of 6 th October 2025. (19) That the Respondent failed to answer Question (c) of Judge Harris’ modified questions of 6 th October 2025. (20) That the Respondent failed to sufficiently answer Question (d) of Judge Harris’ modified questions of 6 th October 2025. (21) Failing to attend or be represented at the Case Management Hearing of 24 th November 2025 as directed. (22) Following the Case Management Hearing of 24 th November 2025, the Respondent failed to comply with those directions by not providing any dates to avoid for the purposes of listing a hearing of the application by 5 th December 2025. (23) That although the Respondent provided the Tribunal with the witness statement of Ben Wesson in compliance with Judge O’Connor’s directions of 24 th November 2025 for the purposes of the application to certify an offence to the Upper Tribunal, the Respondent failed to submit that witness statement, as directed, with the bundle and papers associated with the [APPELLANT]’s other application for costs against the Respondent. (24) That Ben Wesson’s witness statement of 23 rd March 2026 fails to address “the asserted failure to comply with the Tribunal’s directions” in breach of Judge O’Connor’s directions of 24 th November 2025. (25) That Ben Wesson’s witness statement of 23 rd March 2026 fails to address “the failure to attend the hearing of 24 th November 2025” in breach of Judge O’Connor’s directions of 24 th November 2025.

33. The Respondent’s ‘Annex A – Schedule of allegations and NMC Responses’ sets out its position in respect of these various allegations. The Respondent admits that allegations 1, 2, 3, 4, 11,12 and 21 are each capable of constituting a contempt, but it disputes that allegations 5, 6, 8, 9, 10 and 13 to 20 are capable of constituting contempts. In respect of allegation 7, the Respondent did not consider that there was such an allegation contained within the [APPELLANT]’s list of allegations, but this is set out under paragraph 18 of the [APPELLANT]’s ‘Sheet to 4.1 of Amended GRC4 dated 6 April 2026’, which accompanied the GRC4 form of 6 th April 2026.

34. At the oral hearing of this matter, Professor Engelman, on behalf of the [APPELLANT], confirmed that any occasions when the Respondent failed to provide dates or dates to avoid for the purposes of listing a hearing were no longer being pursued in the application. That effectively removed allegations 11 and 22 from the Tribunal’s considerations. Other Procedural Matters 35. A costs application had been submitted by [APPELLANT] against the NMC on 3 rd April 2026 (Good Friday). It was re-submitted with amendments on 8 th April 2026, accompanied by a schedule of costs and a ‘sheet’ consisting of 11 pages of reasons. At the hearing, Professor Engelman said that the costs application related to both appeals (0359 and 0091) but primarily this application for certification of a contempt.

36. During the hearing the Tribunal delivered an extempore decision agreeing to hear the costs application limited to 0359 and 0091. It refused the costs application insofar as it related to these certification proceedings. The reasons articulated by the Tribunal concerned procedural fairness.

37. The costs application purported to respond to the Case Management Directions of the Chamber President dated 24 th November 2025. If that was so, the application was late. Under the heading of “Costs application against the NMC (0359)”, those Directions permitted [APPELLANT] to vary her costs application against the NMC dated 10 th November 2025 to include ‘wasted costs’ caused by NMC’s failure to attend the hearing before the Tribunal on 24 th November 2025. The Chamber President ordered the appellant to serve a schedule of costs and bundle containing all evidence, submissions and case law no later than 21 days before the date set for hearing. As the hearing opened on 21 st April 2026, this meant that the last day to submit the costs evidence was 31 st March 2026. Thus, the costs application was late.

38. It was anticipated by the Directions that the varied costs application would be for 0359 only. While the Tribunal acknowledged in its extempore decision that a costs application could be made at any stage of the proceedings, the timing of the renewed and expanded application had the effect of reducing the timescale for the NMC to respond.

39. The Directions of 24 th November 2025 required the NMC to file its costs bundle in response by no later than 14 days before the hearing i.e. 7 th April 2026. This was the same day that the application was received by the NMC after the Easter Bank Holiday weekend. In any event, the basis of the costs application was so unclear as to the cases it related to that it could not fairly be responded to.

40. In refusing this part of the costs application, the Tribunal confirmed that the [APPELLANT] is at liberty to renew the application in due course following this certification decision. Rule 10 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 requires any costs application to be made not later than 14 days after the date on which this Decision was sent to the parties. Should the application be renewed, a revised costs schedule will be required identifying costs specific to FT/EJ/2025/0011. Evidence of Ben Wesson 41. The Respondent’s Chief of Staff, Mr Wesson, had provided the Tribunal with a witness statement, dated 23 rd March 2026, which states that it was made “pursuant to paragraphs 10 and 15 of the Directions of Judge O’Connor dated 24 November 2025.” . It was therefore purporting to comply with the directions requiring a witness statement to be served in relation to both of the [APPELLANT]’s applications, namely in respect of costs against the Respondent and certification of offences to the Upper Tribunal. Although Judge O’Connor’s directions of 24 th November 2025 envisaged a possibility that different witness statements might be provided in response to each of these applications, we see no reason why a single witness statement, where there is a significant overlap of the matters being considered across the two applications, could not be dealt with in this manner.

42. Mr Wesson’s was in attendance at the oral hearing and was cross-examined by Professor Engelman on behalf of the [APPELLANT]. A summary of Mr Wesson’s evidence is as follows: (i.) That there are 7 acts or omissions which it is accepted are capable of constituting a contempt. (ii.) On 11 th March 2025, the Respondent confirmed to the Tribunal that it did not wish to be joined as a party to the appeal. The Customer Information and Data Requests team (CIDR) continued to receive directions and correspondence from the Tribunal, and the Respondent was eventually joined as a party to the appeal by the Tribunal of its own initiative. (iii.) Until the Respondent was notified on 28 th November 2025 of an application for certification for offences to the Upper Tribunal, nobody from the senior management, General Counsel team, or indeed the CIDR manager were informed about these directions and correspondence. (iv.) The FOI and DPA Request inbox is a public-facing inbox which can receive a high volume of emails which are wrongly directed to the team or may not require action. It is likely that the inbox administrator (the CIDR Assistant) failed to recognise the importance of the messages and the mandatory nature of the Tribunal’s directions and so did not flag this up to the CIDR manager. (v.) On 28 th November 2025, the CIDR manager forwarded the Tribunal’s directions of 24 th November 2025 to the Head of the Customer Enquiries and Complaints team (CE&C) and informed him of the certification application being made. On 1 st December 2025, the Head of CE&C informed the General Counsel team of these matters. This was the first time that the General Counsel team or anyone outside the CIDR team had been made aware of these matters. (vi.) The Respondent’s General Counsel wrote to the Tribunal and the other parties, apologising for the previous lack of compliance with the Tribunal’s directions, and giving assurances that there would be compliance with all directions from that point onwards. (vii.) Following an an investigation by way of a “Log and Learn” process, issues were identified with the lack of collaboration between the CIDR team and the General Counsel team; the General Counsel team should have been informed of the Tribunal proceedings and their legal advice requested, at the latest, when the Respondent was first notified of the appeal to the Tribunal on 13 th September 2024. (viii.) The failure to notify the General Counsel team may be partly explained by the fact that although the Respondent regularly receives requests under FOIA which are routinely dealt with, the Respondent has rarely been involved in proceedings of this type in the First-tire Tribunal, and Mr Wesson was not aware of any other such cases in at least five years prior to the date of his statement. (ix.) To avoid any other issues like this arising, the Respondent has reintroduced regular meetings between the CIDR team, the General Counsel team and relevant teams in the Communications and Engagement directorate where complaints, enquiries and information requests can been discussed and the CIDR can seek advice on cases that are complex or may give rise to legal risk, including Tribunal proceedings. (x.) The following additional steps taken by the Respondent include: (a) Changing the allocation process for information requests so that there is no delay between triage and allocation. (b) Creation of a checklist to assist in identifying cases requiring expertise or oversight by the legal, safeguarding or communications and engagement teams. (c) Transferred internal review documents to a different digital platform to facilitate better reporting. (d) Introduced a weekly meeting between the Head of CE&E and the CIDR team to better manage risk, obtain information for responses at an earlier stage, and to ensure continual senior management oversight of the CIDR team’s work and the CIDR manager’s decisions. (e) Reviewed and updated Standard Operating Procedure to stress the importance of requesting legal advice from the General Counsel team at the earliest opportunity (i.e. when receiving an ICO decision, when contacted by a legal representative, and if the First-tier Tribunal becomes involved. (f) Carrying out quality assurance reviews of response letters to check quality and accuracy of wording. (g) Training being provided by the General Counsel team and the Head of CE&C to the CIDR team, covering when and how to seek legal advice on information requests, and the importance of doing so when the relevant circumstances arise. Additional training is to be provided by external solicitors on a date to be determined. (h) Fostering a ‘culture of curiosity’ in the CIDR team to enable members to deviate from or challenge standard processes where circumstances justify this. (i) Providing continuous learning within the team, both retrospectively following ICO feedback and proactively by taking advantage of published guidance and information from the ICO and other relevant sources. (xi.) As part of an efficiency programme the Respondent lost over 10% of its workforce and the CIDR Assistant role no longer exists. There is now a combined role that supports two departments. The Parties’ Submissions [APPELLANT]’s Submissions 43. In addition to the written submissions of the parties’ the Tribunal had the benefit of listening to their respective oral submissions at the hearing. The specifics of each of the 25 alleged breaches (referred to at paragraph 32 above) are set out in some detail in the [APPELLANT]’s application and continuation sheet (Sheet to 4.1 of Amended GRC4 dated 6 April 2026) of 6 th April 2026. However, a summary of the [APPELLANT]’s further submissions is set out below: i. That there is no benefit to the [APPELLANT] in bringing this application. It is simply to uphold the rule of law and it is the Tribunal’s orders which have been breached. ii. The Respondent’s replies to the questions posed by the Tribunal in its directions of 7 th April, 7 th August 2025 and 6 th October 2025 were defective, in that they failed to answer or sufficiently answer the questions posed. An example of this is that when the Respondent was asked what records it had acquired from previous regulatory bodies which came before the Nursing and Midwifery Council, its response referred to ‘red books’ and microfilm, but at the appeal hearing relating to the requests for information, the [APPELLANT] was shown a ‘screen grab’ which showed a number of other records, including a Sprint Register, DATs, emails and iii. To purge a contempt, a party needs to do what the Tribunal has asked of it. iv. That the responses to the questions posed by the Tribunal in the two series of questions (i.e. those as set out in the directions of 7 th April 2025 and 6 th October 2025) are capable of constituting acts of contempt. v. That the Respondent remains in breach of the Tribunal’s directions by committing the 23 rd to 25 th breaches. vi. The Respondent’s breaches comprise of three categories: firstly, the Respondent has failed to comply with deadlines; secondly, the Respondent has failed to adequately answer the Tribunal’s questions; and thirdly, the Respondent has failed to supply evidence concerning those failures. vii. None of the steps proposed by Mr Wesson will cure the Respondent’s belligerent attitude to the Tribunal. Respondent’s Submissions 44. The individual responses to each allegation are set out in the Respondent’s ‘Annex A – Schedule of allegations and NMC Responses’. However, a summary of the Respondent’s further submissions is as follows: i. That it is admitted that 7 of the pleaded allegations are matters which by their nature could be a contempt if that conduct had occurred in proceedings before a court or tribunal empowered to punish a person for contempt. ii. That it is denied that the remaining allegations are capable of constituting a contempt. iii. That the Respondent has issued an unreserved apology to the [APPELLANT], the Commissioner and the Tribunal in its letter of 5 th December 2025 and via the statement of Mr Wesson. That apology is repeated in the Respondent’s submissions. iv. The Respondent has provided explanations for the defaults and failures as best it can. v. The witness statemen of Mr Wesson sets out how the Respondent’s ‘Log and Learn’ process identified causal factors that contributed to its failures. These focus particularly on a failure to engage the General Counsel team when legal proceedings were progressing, and a failure in understanding by the FOIA and CIDR teams about the nature and seriousness of Tribunal proceedings. vi. The failure to comply was unintended and appears to have arisen as a result of the CIDR manager and wider FOIA and CIDR teams failing to appreciate the seriousness of the Tribunal’s orders and the need to prioritise compliance with them above other work. The CIDR Manager’s regular responses to the Commissioner and the actioning of specific requests demonstrates this lack of intention as there were clear efforts to assist the Commissioner. The failures were borne out of a genuine naivety on the part of the CIDR manager, rather than any wilful breach on their part or the wider organisation. vii. The Respondent has implemented a number of steps (as set out by Mr Wesson) to ensure that such failings never happen again, and the decision has been taken to always accept party status when offered this by the Tribunal in future proceedings. viii. As soon as the General Counsel team was made aware of these matters it acted with alacrity, sending the apology letter within a matter of days, instructing counsel for the hearing, providing urgent advice, and triggering the ‘Log and Learn’ investigation. ix. The question of whether a question has been properly answered is one of judgment and degree rather than a binary question of compliance or non-compliance. The questions posed by the Tribunal were answered appropriately and in a good faith attempt at responding, but even if this is wrong, inadequacy or insufficiency of a response is qualitatively different from an act or omission that is capable of constituting a contempt. Discussion 45. As the Court of Appeal identified in Moss v Royal Borough of Kingston-upon-Thames and the Information Commissioner [2023] EWCA Civ 1438 , it “should be relatively straightforward in most cases to determine whether the act or omission (i.e. a breach of a rule, direction or order) is by its nature such as would be capable of constituting contempt.” . In the present matter there are a number of occasions where the Respondent either failed to comply with directions or orders of the Tribunal within the specified timeframe or failed to attend a hearing which it had been directed to attend. Those omissions are, by their nature, capable of constituting contempts, and the Respondent does not seek to dissuade us from that conclusion. We are therefore satisfied that breaches 1 to 4 and 10 (as identified at paragraph 32 above) are omissions which are capable of constituting contempts. Breach 12 relates to the breach of Judge Harris’s directions of 6 th October 2025, but the act or omission in question is already caught by breach 10, and there would be an element of double counting should the Tribunal go on to consider this breach further. Breach 12 will therefore not be considered further by this Tribunal.

46. Taking account of the fact that the [APPELLANT] no longer pursues the application in respect of alleged breaches 11 and 22, which relate to failures to provide dates to avoid for the purposes of listing hearings, that leaves alleged breaches 5 to 9, 13 to 20, and 23 to 25 to be considered. However, it is right to state that the Respondent did in fact provide the Tribunal with dates to avoid on 5 th December 2025 in compliance with Judge O’Connor’s directions of 24 th November 2025 (alleged breach 22).

47. Alleged breaches 5 to 8 relate specifically to the responses provided by the Respondent to the questions which were first posed by Judge Sanger on 7 th April 2025. Although Judge Saward subsequently issued further directions on 7 th August 2025, the questions drafted by Judge Sanger were not altered at that time and were simply restated in Judge Saward’s directions, with the deadline for compliance being extended to 29 th August 2025. The Respondent eventually provided its responses to those questions on 9 th September 2025. Alleged breaches 5-8 48. The seven questions, as originally drafted by Judge Sanger in her directions of 7 th April 2025, and thereafter replicated by Judge Saward in her directions of 7 th August 2025, followed an ineffective substantive hearing of appeal FT/EA/2024/0359 where the [APPELLANT] had submitted a skeleton argument which she considered was “lengthy and its focus was unclear” . That skeleton argument was not simply focused on the aforementioned appeal, but made reference to three information requests, yet “only defined the parameters of two” . Judge Sanger referred to there being a lack of clarity at that time which made it “impossible for the Tribunal to separate the issues which related to the appeal before [the Tribunal] from issues which related to the other request(s)” . In those circumstances, the Tribunal adjourned the substantive hearing of that appeal, and two of the appeals, FT/EA/2024/0359 and FT/EA/2025/00091 were later joined by the Tribunal to be heard together. Judge Sanger’s directions required both the [APPELLANT] and the Respondent to provide answers to certain questions, and in the case of the [APPELLANT], to additionally provide a written chronology to clarify matters. The [APPELLANT] duly provided her responses and the requested chronology by email on 28 th April 2025, and as I have referred to above, at paragraph 41, the Respondent provided its answers on 9 th September 2025, albeit in breach of the two orders of the judges on account of this being done outside of the stipulated timeframes.

49. The allegations made in respect of the Respondent’s answers to the various questions posed by the Tribunal in these directions are not premised on the basis that there was a failure to provide answers, but instead, it is effectively asserted that the Respondent did not provide answers to the satisfaction of the [APPELLANT], or that the answers provided failed to sufficiently answer the question posed. The Tribunal would have little difficulty in finding that there had been an act or omission capable of constituting a contempt where there has been a failure to comply with a direction or order, as we have in respect of breaches 1 to 4 and 10. However, in our view, we agree with the Respondent’s submission that whether a question has been properly answered is not simply a binary question of compliance or non-compliance, but instead it requires a careful assessment of the response, having regard to the specific question posed.

50. In respect of the original questions posed by Judge Sanger, the Registrar identified at the case compliance hearing of 18 th September 2025, having heard from the parties present, which at that time did not include the Respondent, that there may be some ambiguity or misunderstanding on the part of the Respondent in relation to question six, at the very least, and it was for this reason that the Registrar directed the [APPELLANT] to submit ”draft directions sought to clarify the issues raised in relation to the NMC submissions” . Those directions were provided by the [APPELLANT], but Judge Harris did not consider that the questions, as they had been drafted, were suitable to be asked in the form they were. Judge Harris clarified that “This is an appeal which is concerned primarily with whether information is or is not held by the NMC and the questions asked in my view are aimed at trying to elucidate exactly what searches have been undertaken by the NMC. I have therefore pulled together from the [APPELLANT]’s requested directions what I believe to be the key questions which it appears to me need to be answered in order for the Tribunal to consider the appeal properly.” . Having regard to the general propositions of law stated in Navigator Equities Limited v Deripaska , it must be the case, in our view, that there was some ambiguity in what was being asked of the Respondent in Judge Sanger’s directions of 7 th April 2025 (as repeated in Judge Saward’s Directions of 7 th August 2025). It is therefore doubtful that a breach of an order or direction could be established in these circumstances. Nevertheless, we go on to consider each of the alleged breaches in turn.

51. Question 2 asked, “How have you acquired records from previous regulatory bodies and how is that information held now?” . The response provided by the Respondent was as follows: “What we have referred to as the ‘Red Books’ and GNC Registers in previous responses are paper records and were just passed on to us by the GNC as legacy archives and records. This would have been in 1983 when the when the United Kingdom Central Council for Nursing (UKCC) relaced [sic] the GNC as the Regulator for Nurses and Midwives. Our Archives Team have advised that we are not aware of anybody at the NMC who would recall any specifics around this arrangement nor would it be stored in our systems given that this dates back to 1983. We hold such records in paper format via the paper Registers. We also have micro-film records which contains UKCC records for registrants from 1983 – 2001 however, we would need PIN numbers to search micro-film records for registrants’ data. We again acquired the micro-film records as legacy data, this time from the UKCC but they are held offsite on our behalf by Restore. As they are legacy data it was the UKCC, our predecessor, that scanned the data onto the microfilm not the NMC.” 52. The allegation advanced by the [APPELLANT] in respect of that response is as follows: “The only records the NMC claims to have acquired from previous bodies were of 2 types: Red Books & microfilm however from The National Archive, (“TNA”), which received records from the NMC, speaks of: a SPRINT register, 2 digital audio tapes, (DAT), 7 .txt look up tables & an email containing a database which it received from the NMC. The NMC failed to disclose to the FTT all the records it had acquired.” 53. The Tribunal had had the benefit of hearing the joined appeals FT/EA/2025/0091 and FT/EA/2024/0359 on the previous day, when it was explained by the Respondent that the dataset for SPRINT-UK (Single Professional Register and Index of Training) from 1984 to 2002 was held by the UK Central Council for Nursing, Midwifery and Health Visiting (UKCC). That was the last dataset produced by the UKCC before its functions were taken over by the Respondent. The record held by the Respondent confirms that the dataset was transferred to The National Archives by the Respondent on 27 th May 2002 and that it was held on two DAT tapes. The Tribunal accepted this evidence and additionally that seven additional lookup tables in .txt format were transferred and attached to an email sent on 31 st May 2002 to The National Archives, and that this information was not held by the Respondent.

54. The specific allegation made by the [APPELLANT] is that the Respondent failed to disclose all the records it had acquired. The question of whether or not the Respondent held any further information for the purposes of FOIA was, of course, a matter which was determined at the hearing of the substantive appeal in FT/EA/2024/0091, but in any event, we are satisfied that the answer which was eventually provided by the Respondent was a considered response which provided detail in answering the Tribunal’s question. We are therefore not satisfied that there has been an act or omission in this instance which is capable of constituting a contempt.

55. Queston three asked, “How is/was the information held and who has access to it?” . The Response provided was as follows: “As above, the information is held in Red Book GNC registers and micro-film. The Red Books can be inspected at our offices at 23 Portland Place, London if desired by a member of the public but as microfilm records contain extensive personal data related to multiple registrants and are not published records like the GNC registers, these can only be accessed by the Records and Archives Team at the NMC.” 56. The allegation advanced by the [APPELLANT] in respect of this answer is as follows: “As to Judge Saward’s Qu.3, the NMC having answered Qu.2 falsely, failed to properly answer Qu.3 because, in its response, the NMC only refers to 2 of its many records.” 57. This application replicates the allegation made in respect of Question 2, and makes the same point, which is that the Respondent has failed to provide any information in relation to the other records which the [APPELLANT] suggests were held by the Respondent. For the reasons set out in paragraph 45 above, the Tribunal does not accept this proposition and considers that the response to this question complied with the Judge’s directions. We are therefore not satisfied that there has been an act or omission in providing this response which is capable of constituting a contempt.

58. Question 4 asked the Respondent, “What records are held regarding nurses? How long are records held?” . The Respondent provided the following answer to this question: “As above the GNC registers from 1921 – 1968 in hardcopy format and, the UKCC records related to registrants from 1983 – 2001. The microfilm tapes contain additional details such as qualifications. Our GNC registers are held permanently and the Microfilm records for 70 years from the date of registration. The National Archives (TNA) also contains some electronic records related to GNC registrants from the 1970s until 1983. Plus TNA also holds the SPRINT UK UKCC dataset with registration details about practitioners, their qualifications, training courses, declarations of good character and financial information etc. Those are also held permanently we believe.” 59. The [APPELLANT] alleges as follows: “As to Saward’s Qu. 4, the NMC appears to refer to 3 records concerning nurses: (i) GNC registers; (ii) UKCC records & (iii) microfilm tapes. Its’ answer therefore differs from that to it provided to Qu.2. Both Qu.s concern what records the NMC held.” 60. Whilst the [APPELLANT] has criticised the Respondent for its response to this question, the responses were not provided in a piecemeal fashion, but were provided together in an email to the parties and the Tribunal of 9 th September 2025. The responses must therefore be read together, and any suggestion that the Respondent has tried to mislead the Tribunal or the parties in any way is therefore unhelpful. Certainly, given the Tribunal’s findings in appeal FT/EA/2025/0091 in relation to the SPRINT UK dataset being held by The National Archives and not the Respondent, we are not satisfied that there is any act or omission present here which is capable of constituting a contempt.

61. Question six asked the Respondent. “What information do you hold on [NAME]?” . The Response provided was as follows: “There were two individuals which the [APPELLANT] was interested in. For the first nurse, we disclosed everything we could find. For the second nurse, we checked the GNC registers for information and could not find anything and we have no PIN, this means we can’t check what is called the DP2000 catalogue for records held at Restore. We cannot run any further searches on [NAME]. The National Archives might have something about them in their SPRINT dataset or some electronic GNC records that could be relevant but the requester would need to contact TNA to look into that and search their catalogue.” 62. The [APPELLANT] alleges as follows: “As to Qu.6, when asked what information it holds on [NAME], the NMC variously discusses [NAME], the search it, the NMC, performed for [NAME]’s information, discloses the existence of yet another record, the DP2000 catalogue. The NMC fails to answer the said Qu.6 which simply requires the answer “some” or “none”.” 63. The [APPELLANT] is clearly dissatisfied with the response provided, and suggests that the existence of the ‘DP2000 catalogue’ was previously being withheld by the Respondent. In providing the [APPELLANT] with a detailed explanation of what searches it had carried out in respect of the two named individuals who were the subjects of concern to the [APPELLANT] in their original request for information, the Respondent has proffered a route by which further information might be obtained. This does not appear to the Tribunal that there is any obstruction on the part of the Respondent, and we do not accept that the suggested responses of ‘some’ or ‘none’ would have adequately addressed the question which is an open-ended rather than a closed question which would ordinarily necessitate a binary answer. As we have already referenced, the Tribunal has been greatly assisted by hearing the two appeals before this application. During the appeal hearing, the Respondent explained that DP2000 is a legacy database from its predecessor, the United Kingdom Central Council for Nursing, which cannot be searched without a PIN. The Tribunal accepts that it is simply not possible to search that database with any other search terms other than a PIN. We are not satisfied that there has been an act or omission which is capable of constituting a contempt. Alleged breach 9 64. This allegation relates to Registrar Bamawo’s directions of 19 th September 2025, which provided a reminder to the parties in the following terms: “The Parties are reminded that they are required by the overriding objective to cooperate with each other, and with the Tribunal, as confirmed by the Upper Tribunal in Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) , (paragraph 13). This includes a requirement to liaise with each other concerning procedural matters; to identify and clarify issues; to agree a course of action; and to identify and agree any additional directions required, before they refer a matter to the Tribunal.” 65. Issue is taken with the Respondent on the basis that it took no steps to cooperate with the [APPELLANT], though it had nonetheless been in contact with the Commissioner (see paragraphs 8-12 above). The evidence of Mr Wesson was that it was not until 1 st December 2025 that the Respondent’s General Counsel team were first notified of the certification application being made, or of the ongoing Tribunal proceedings. This was not in dispute, and thereafter the Respondent’s legal team issued a full and unreserved apology to the Tribunal and the parties, explaining that there would be adherence to all of the Tribunal’s orders or directions from that point. Although we do not accept that the abovementioned reminder to the parties was a specific direction made by the Registrar, having regard to the lack of any legal input from the Respondent’s General Counsel team prior to 1 st December 2025 and the legal nature of the Registrar’s statement, we do not consider that any failure to cooperate with the [APPELLANT] prior to the involvement of the General Counsel team would be of such nature as to be capable of constituting a contempt. Alleged breaches 13 to 20 66. These matters relate to Judge Harris’s directions of 6 th October 2025 (see paragraph 12 above) and the responses provided by the Respondent, which the [APPELLANT] alleges either failed to answer the question posed or failed to sufficiently answer the question.

67. Question ‘a(i)’ of Judge Harris’s directions asked. “In addition to the records mentioned in the response of 9 September 2025, what records does NMW hold relating to [NAME] on any of the following: (i) The National Digital Archives of Datasets.” . The response provided by the Respondent was as follows: “ The NMC response stated: “We do not hold The National Digital Archives of Datasets. It is held by The National Archives (TNA) and can accessed it here: https://discovery.nationalarchives.gov.uk/details/r/C18822 or, at the UK Government Web Archive here https://webarchive.nationalarchives.gov.uk/ukgwa/timeline/http://www.ndad.nationalarchives.gov.uk/ to see what information is held relating to [NAME].” 68. The [APPELLANT] asserts that the Respondent failed to answer this question as it stated that it did not hold these archives. It was, however, accepted by the Tribunal at the appeal hearing that the Respondent did not hold information, which was being held by the National Archives, and as such, it is unclear how it could be said that this response did not answer the directed question. We are therefore not satisfied that there has been an act or omissions which is capable of constituting a contempt.

69. Similarly, in respect of Question ‘a(ii)’ which asked the same question, but as regards records held on “digital audio tapes or look-up tables in .txt file format” , this has already been dealt with at paragraph 46 to 48 above, as the Tribunal concluded at the appeal hearing of FT/EA/2025/0091 that this information was not held by the Tribunal and was instead held by The National Archives. The [APPELLANT]’s submission that the response provided did not answer the question is therefore flawed. We are not satisfied in these circumstances that there has been an act or omissions capable of constituting a contempt.

70. In respect of questions ‘a(iii)’ which related to information held on the SPRINT and WISER systems, the Respondent provided an answer as follows: “The SPRINT system is held by The National Archives (TNA) and can be accessed here https://discovery.nationalarchives.gov.uk/browse/r/r/C15886 to see what information it holds about [NAME]. No records held on our current computerised NMC register.” 71. The Respondent has explained that WISER is its previous system, which has been incorporated into Microsoft Dynamics, its “current computerised NMC register”, which it referred to in that response when stating that no records were held on it. Having regard to the findings of the Tribunal at the appeal hearing, we do not consider that the Respondent has failed to answer this question, and consequently we are not satisfied that there has been an act or omission capable of constituting a contempt.

72. The Respondent confirmed in its answer to Question a(iv), which asked what information was held on ‘Digital files from Central Midwifery Board’, that these files are held by The National Archives and could be accessed using the link provided. Additionally, the Respondent stated that in-person visits to The National Archives can be arranged to see information which is relevant to questions a(i), a(iii) and a(iv). The [APPELLANT]’s assertion that this did not answer the question seems somewhat at odds with the answer given, which effectively stated that these were also records which were held for the purposes of FOIA by The National Archives and not the Respondent. Given that the Respondent had already stated in its response to Question a(iii) that it did not hold any records on its ‘current computerised NMC register’, and had confirmed where the Central Midwifery Board records were being held (i.e. by The National Archives), this, in our view, provided a clear answer that the Respondent did not hold any information relating to [NAME] on its digital system. In these circumstances, we are not satisfied that there was any act or omission which is capable of constituting a contempt.

73. Question ‘b’ of Judge Harris’s directions asked, “What searches of the microfilm referred to in answer 3 of the response dated 9 September 2025, including searches for PINS, were conducted for information about [NAME] by the Records & Archives team?”. The response provided by the Respondent was as follows: “We would have needed a PIN to conduct the search. We never received a PIN number for [NAME] from the requester so our Records & Archives team could not conduct the search. We fully appreciate that the requester didn’t have a PIN to give us but sadly, the PIN is what would have been required to conduct. Just for clarity, question 3 for our previous response asked: How is/was the information held and who has access to it? Our answer was: As above, the information is held in Red Book GNC registers and micro-film. The Red Books can be inspected at our offices at 23 Portland Place, London if desired by a member of the public but as microfilm records contain extensive personal data related to multiple registrants and are not published records like the GNC registers, these can only be accessed by the Records and Archives Team at the NMC. This answer was basically explaining that if we held information, it would be in the Red Book GNC registers and micro-film. We would have needed the PIN to conduct the micro-film search. Below is an extract from a response sent to the requester on 13 November 2024 with similar advice: ‘I have been advised that without providing a the [sic.] nurses PIN there is nothing further we can do ‘in house’ as we have already exhausted the searches which could be done with the information given. I appreciate that you did submit an FOI previously asking for the PIN numbers but thought I would check if you have obtained [NAME] PIN through any other avenues of your research/enquiries as if you have, we would be able to search again on the microfilm tapes’.” 74. The [APPELLANT] submits that this question would attract either a response of “none”, or that it should have identified what searches were in fact undertaken by the Respondent in respect of the microfilm, rather than explaining, as it did, that it needed a PIN to be able to conduct any search. Given the explanation accepted by the Tribunal in the appeal, which was that the microfilm can only be searched by PIN rather than by a name, the [APPELLANT]’s suggestion that this response was, in any way, seeking to avoid answering the question or insufficiently answering it is, in our view, without foundation. We are therefore not satisfied that there was any act or omission, in relation to this response, which is capable of constituting a contempt.

75. Question ‘c’ of Judge Harris’s directions asked, “What searches of records in digital format were undertaken?” . The response provided was as follows: “I have been advised that the only searches for records in digital format by our Records & Archives Team would have been on the microfilm if we had a PIN but as stated, we did not have this so could not. The Red Book GNC registers are in paper format so would not come under the category of a digital search.” 76. The [APPELLANT] submits that the Respondent did not directly answer this question and suggests that any answer should have either detailed the searches or have been answered with “none”. We do not accept this proposition, as the answer given by the Respondent does answer this question in the negative, but it explains why it could not search the only digital searches which it would have been able to search if it were not for the absence of a PIN. We do not accept this this answer amounts to a breach of Judge Harris’s directions, and we are not satisfied that there was any act or omission which is capable of constituting a contempt.

77. Judge Harris’s last question, namely Question ‘d’ asked the Respondent, “What, if any, additional information does the NMC hold about [NAME] which was not disclosed in the response dated 9 September 2025?” . The Response provided was as follows: “As far as we are aware we hold no additional information about [NAME] not disclosed in the response dated 9 September 2025. Although we do not hold any further information not already disclosed about [NAME], it is possible that The National Archives GNC computerised register and roll may hold some information about [NAME]. The GNC Computerised Register and Roll dates from 1973-1983 and details about it can be accessed here https://discovery.nationalarchives.gov.uk/browse/r/h/C6418. Again, the requester can view it with a reader’s card by appointment at The National Archives in Kew, London.” 78. The [APPELLANT] is critical of the use of the words “As far as we are aware” in this response and suggests that the Respondent failed to give a direct answer to the Tribunal’s question. The Tribunal’s conclusion in the appeal was that on the balance of probabilities the information being sought by the [APPELLANT] was not ‘held’ for the purposes of FOIA, but regardless of that conclusion, the Respondent has, in our view, answered the question posed, and has not sought to obfuscate or evade doing this, despite the suggestion to the contrary. Accordingly, we are not satisfied that there was any act or omission, in answering this question, which is capable of constituting a contempt. Alleged breaches 23 to 25 79. The remaining allegations relate to the witness statement of Ben Wesson, which the [APPELLANT] submits fails to address “the asserted failure to comply with the Tribunal’s directions” and “the failure to attend the hearing of 24 th November 2025” as required by Judge O’Connor’s directions of 24 th November 2025. It is additionally suggested that because the Respondent served this witness statement in relation to the certification application and not specifically in respect of the costs application that this was a breach of Judge O’Connor’s directions of 24 th November 2025. We see no force in that argument, as the Tribunal is permitted to regulate its own procedure under Rule 5(1) of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber Rules) 2009 (“The Rules”), and it would, it appears to us, be counter to the overriding objective of the Rules which is to deal with cases fairly and justly, if we were to be so inflexible as to hold this against a party when the applications were inter-related, and the witness statement clearly addressed both matters. Having considered the evidence of Mr Wesson, we are satisfied that his witness statement did provide an explanation which addressed the Respondent’s failure to comply with the Tribunal’s directions and the failure to attend the case management hearing on 24 th November 2025. We are not satisfied that any of these purported breached are acts or omissions which are capable of constituting a contempt. Should the Tribunal exercise its discretion to certify and send these matters to the Upper Tribunal? 80. Having determined that breaches 1, 2, 3, 4 and 10 of the Tribunal’s directions were acts or omissions which by their nature are capable of constituting contempts, the Tribunal must go on to consider whether it should exercise its discretion to certify and send these offences to the Upper Tribunal for determination. These were clear breaches of the Tribunal’s directions, where compliance was required by a specified date in each instance. The Respondent admits these breaches and apologised to the Tribunal in its letter of 5 th December 2025, in which its General Counsel explained that the lack of compliance with the various directions had only just been brought to their attention, and that any discourtesy to the Tribunal or the parties had been wholly unintentional. It was further stated that an investigating was being carried out to find out how and why this had occurred, and that a full and frank explanation would be provided at the next hearing. That hearing, as it transpired, was the substantive hearing of the two appeals. Mr Wesson was equally apologetic in his evidence, both in his witness statement, and when giving evidence at the oral hearing. That apology was directed not only towards the Tribunal, but additionally towards the [APPELLANT] in this matter, and we consider that these apologies were sincere in their intention.

81. We have considered the explanation provided by the Respondent, and we accept that no legally qualified eyes were cast upon any of the correspondence which was sent by the Tribunal prior to the General Counsel team being notified on 1 st December 2025. Having been brought up to speed with these various failings, and having considered its position, the letter was then sent to the Tribunal relatively promptly, within a matter of days. In essence, this has been a telling example of how a lack of communication between departments, which in this instance involved the CIDR and General Counsel teams, led to serious failures in adhering to the Tribunal’s numerous directions. Had there been a deliberate intention on the part of the Respondent to ignore the Tribunal’s directions, we would have had no hesitation in finding that these offences should be certificated and sent to the Upper Tribunal. However, we recognise that the Respondent has fallen on its sword in admitting the 7 breaches that it did, though for the reasons set out above we are only now dealing with 5 of those breaches, and we accept that the steps now taken by it should serve to avoid there being any repetition of these matters. In the circumstances, and taking into account all of the evidence that we have read and heard, we are not persuaded to exercise our discretion to certify and send these matters to the upper Tribunal.

82. The application is dismissed. Signed: Date: Judge Armstrong-Holmes 25 th June 2026