In R (on the application of the Governing Body of X) v Office for Standards In Education, Children’s Services and Skills & Anor [2020] EWCA Civ 594 the Court of Appeal considered whether to grant an interim injunction that would prevent a public authority from doing its statutory duty.
In December 2019, the claimant school was graded ‘inadequate’ in an inspection report prepared by the Office for Standards in Education, Children’s Services and Skills (“Ofsted“). The school disagreed with the assessment and applied for an order to quash the report on grounds of irrationality and procedural unfairness. To protect its reputation, it also sought an interim injunction to prevent Ofsted from publishing the report before the main challenge had been concluded. The application for an interim injunction was refused and the school appealed.
The Court of Appeal determined the appeal for interim relief and the application for permission to apply for judicial review at the same time by reconstituting itself as the Divisional Court. Whilst the court refused the application for permission to apply for judicial review, the court decided to clarify the appropriate test for an interim injunction which would prevent a public body from performing its statutory duty.
Ofsted has a statutory duty under section 5 of the Education Act 2005 (the “2005 Act“) to inspect schools and prepare a report on its findings. Under section 11 of the 2005 Act it may publish the report in such a manner as it considers appropriate, and must make copies of the report available to any person upon request under section 14(4).
In civil litigation, American Cyanamid Co. v Ethicon Ltd sets out the principles to apply in an application for an interim injunction. The court must ask itself whether there is a serious issue to be tried and, if there is, whether the claimant would be adequately compensated by damages. Where there is ‘doubt as to the adequacy of damages for both parties the court must determine where the balance of convenience lies’. If matters are evenly balanced, the court may be appropriate to take ‘such measures as are calculated to preserve the status quo’.
The test in American Cyanamid applies in a modified form in public law proceedings. In Ex Parte Factortame Ltd (No.2),Lord Goff said the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.
In civil claims, it is necessary to determine whether there is a serious question to be tried in demining the grant of an injunction. When the decision concerns public bodies, there has to be a strong prima facie case to justify granting an interim injunction.
The Court of Appeal also referred to case law that suggested the need for powerful justification for restraining the publication of a report of a public body under a duty to prepare it and highlighted a line of decisions applying this principle to Ofsted reports.
In this case, the Court emphasised the importance of the scope of Ofsted’s functions under sections 5, 13 and 14 of the 2005 Act, including their powers and duties to secure the timely publication and dissemination of their inspection reports. It noted that the inherent purpose of those provisions is to promote the public interest in parents, pupils and local communities knowing, without delay, the results of school inspections, and to uphold the rights of those entitled to receive that information. The considerations that would warrant impeding these functions would have to be very powerful.
Although the inspection report contained conclusions that could have severe reputational consequences for the school, it could be said that the greater the possible reputational damage, the greater the public interest in parents, pupils and the local community being made aware swiftly of Ofsted’s concerns. In any event, the school could make parents and pupils aware of any disagreement it had with the report’s conclusions.
As such, the judge at first instance had not been wrong to refuse the application for an injunction on publication and the appeal was dismissed.