Written by Hannah Blake, Trainee Solicitor
(Interim Executive Board of X) v Ofsted  EWHC 2004 (Admin), Stuart-Smith J
This recent case provides a useful guide for public authorities and claimants who may be involved in public law injunctions. The case sets out what a claimant must establish to restrain publication of potentially contentious reports, on an interim basis, and how there are additional hurdles to overcome compared to private law cases.
The Claimant school ('the School') applied to quash a negative Ofsted report and prevent its publication on the basis of irrationality, procedural fairness and the Defendant using its statutory powers improperly. At the same time, the Claimant sought (and obtained) an interim injunction preventing publication until the outcome of the substantive application The Defendant sought to set aside the interim injunction.
After being placed in special measures in 2014, Ofsted inspected the School on a regular basis. The inspection reports acknowledged improvement and as a consequence of the December 2015 report, the School was taken out of special measures. However, following a visit from Her Majesty's Chief Inspector of Schools in June 2016 a 'no-notice' Ofsted inspection was ordered, apparently due to HMCIS's concern over segregation of boys and girls at the School.
The School was highly critical of the nature of the visit and subsequent inspection. The resultant report, in the view of the judge, "was different from the December 2015 report to a degree that might suggest that they were reports on two completely different schools, not the same school separated by a distance of one term and with the history of progress outlined in the earlier reports."
The Council sent a pre-action letter to Ofsted stating their intention to bring judicial proceedings and asking to delay the report's publication. On Ofsted's refusal, the Claimant applied to the court for interim relief and issued proceedings for judicial review. An interim injunction was granted and Ofsted applied to have the order set aside.
Interim injunctions in public law cases
Stuart-Smith J emphasised that he was not there to judge upon the facts of the case which led to the report in question, but to determine whether the Claimant had succeeded in overcoming the additional hurdles in public law cases. He acknowledged that these hurdles are accepted to be higher than those in American Cyanamid v Ethicon Ltd (No. 1)  A.C. 396 which govern ordinary civil proceedings, and which require the court to ask whether the claimant has an arguable case and, if so, where the balance of convenience lies.
Stuart-Smith J relied heavily on the dicta of Laws LJ in R v Advertising Standards Authority ex p Vernons Organisation Ltd  1 WLR 1289, underlining that the case establishes that the following considerations apply when deciding whether to restrain publication on public law grounds:
The courts' approach to restraining allegedly defamatory statements in private law cases;
The existence of a public duty or power to publish;
The likelihood that the damage caused by the publication may be irreparable; and
The existence or absence of a pressing ground or pressing social need.
In applying the above considerations the Claimant had a case beyond mere arguability. The balance of convenience weighed up Ofsted's power to publish and the public interest in the publication of such reports, against the potential damage not only to the school but in this case the wider community, which the judge viewed as irreparable. In addition he described the discrepancies between earlier reports and the one in question, and noted that the school's concerns that led to issuing judicial review proceedings were credible.
In Stuart-Smith J's view delaying publication in these circumstances was a temporary inconvenience balanced against the irreparable damage likely to befall to the claimant. The application to set aside the injunction was refused.
If your organisation is affected by the publication of reports, either as the publisher or the body reported upon, and you want to explore the range of approaches that can affect whether a contentious report should be published, do not hesitate to get in touch.