Kirkham v UKRI: tribunal refuses contempt certification over meaning of "now"

The First-tier Tribunal has refused to certify an alleged contempt by UK Research and Innovation, holding that a single word in an Upper Tribunal decision did not displace the deadline in a substituted decision notice.

In Kirkham v United Kingdom Research and Innovation [2026] UKFTT 1389 (GRC), Judge Harris considered an application under section 61 of the Freedom of Information Act 2000 by Dr Reuben Kirkham. The underlying dispute concerns a 2017 request for scores, spreadsheets and feedback from a mid-term review of Centres for Doctoral Training. In March 2024 the tribunal allowed Dr Kirkham's appeal and substituted a decision notice requiring disclosure, subject to redaction of personal information, within 35 days. UKRI's appeal to the Upper Tribunal suspended that order.

On 17 April 2026, Upper Tribunal Judge Church confirmed the First-tier decision on the relevant appeal. His decision said that, to the extent information had not been disclosed, UKRI "shall now disclose" it. UKRI sent the material, with redactions, on 12 May 2026, 25 days later. Dr Kirkham argued that "now means now", that UKRI had already enjoyed time to comply before its appeal, and that late disclosure was itself a contempt.

The test for certification

Judge Harris set out the framework. The First-tier Tribunal cannot compel compliance or commit for contempt, but may certify an offence to the Upper Tribunal. Applying Information Commissioner v Moss, the tribunal is responsible for enforcing a decision notice it has substituted. Relying on Bence v Cornwall Council, the judge described two stages: first, whether there has been an act or omission capable of constituting contempt, and only then whether discretion should be exercised to certify. He noted that contempt is ordinarily proved to the criminal standard and that an order must be clear and unambiguous to found a breach, citing Navigator Equities v Deripaska. No penal notice had been attached to the order.

Preliminary points

Several procedural arguments were disposed of first. The application had been treated as proceeding against UKRI alone, and Dr Kirkham, who appeared in person, could have sought joinder of an individual earlier. The judge declined to refer the matter to the Chamber President for transfer to the Upper Tribunal, reasoning that it would benefit from the issues being distilled below, and that litigants should not lose a tier of appeal. No evidence of an earlier contempt had been put forward in the application itself. Disputes about the completeness of disclosure, including the searches carried out, were a matter for the Information Commission.

The meaning of "now"

On the central issue, the judge held that the operative order was the substituted decision notice, which the Upper Tribunal had confirmed rather than varied. The Upper Tribunal had found no error of law, and under section 12 of the Tribunals, Courts and Enforcement Act 2007 its power to give procedural directions is limited to cases where it sets aside a decision and remits it. It therefore had no power to impose a different timetable.

Read in that context, "now" meant "now that the appeal has been dismissed", not "immediately". The judge stressed that this was no criticism of the Upper Tribunal, but a construction of its decision alongside the notice. He considered it fair to give UKRI the same time to comply that it was originally granted, and said that demanding immediate compliance without a stated deadline would not have been clear and unambiguous.

The 35-day period therefore ran from 17 April 2026 and expired on 22 May 2026. UKRI's disclosure on 12 May 2026 came ten days early.

Because there was no breach capable of founding a contempt, the first limb was not met and the judge did not reach the question of discretion. The application was refused.