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"I've got the power…!" UK Court of Appeal refuses to grant an interim injunction which would prevent a public body from fulfilling its statutory power

15/09/2020

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Ireland

The UK Court of Appeal recently considered the case of 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.  In this case, the Court was tasked with deciding whether to grant an interim injunction which would prevent the Office for Standards in Education, Children’s Services and Skills (“Ofsted“)) in fulfilling its statutory duty. The injunction was refused and the Court held that Ofsted was entitled to publish a report pursuant to its statutory power under section 5 of the Education Act 2005 (the “2005 Act“).
 
Ofsted
 
Ofsted, is a non-ministerial department of the UK Government, which among other things is responsible for inspecting services providing education and skills for learners of all ages. Ofsted has a statutory duty under section 5 of 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).
 
Background
 
By way of background to the case:
 
  • On 05 December 2019, Ofsted issued the appellant school with an inspection report which graded the school as ‘inadequate’ (the "Report"). Amongst other things, the Report was particularly critical of the school's ability to safeguard students.
 
  • The school disagreed with the assessment and sought permission to apply for judicial review 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 (pursuant to its statutory power under s5 of the 2005 Act) before the main challenge had been concluded.
 
  • The application for an interim injunction was refused and the school appealed.
 
Court of Appeal Decision
 
The Court of Appeal reconstituted itself as the Divisional Court under sections 9 and 66 of the Senior Courts Act 1981 which enabled it to determine the appeal for interim relief and the application for permission to apply for judicial review at the same time.
 
Judicial Review
 
In respect of the application for permission to apply for judicial review, the Court found that the school had not established that it was "arguable that the conclusions in the inspection report [were] irrational or that the inspection itself was procedurally unfair."
 
Lindblom LJ found that an 'allegation of irrationality is never easy to establish.' He said that Ofsted's statutory role in carrying out school inspections involve issues which require the exercise of evaluative judgment which makes it a particularly difficult task. Lindblom LJ also referred to the case of R. (on the application of Durand Academy Trust) v Office for Standards in Education, Children's Services and Skills [2018] EWCA Civ 2813; [2019] E.L.R. 100, which found that Ofsted's inspection, evaluation and reporting process, and its procedure for handling complaints, were 'inherently procedurally fair.' Lindblom LJ. found that the contrary was not successfully argued in the present appeal.
 
The school also took particular issue with the weight the Report attached to the inspectors' discussions with pupils. In this regard, Lindblom LJ commented as follows:
 
"Dissatisfaction with the findings and conclusions of the inspection report does not, of itself, amount to a demonstration of irrationality. A central theme in these proceedings, reiterated in different forms with different examples, is the grievance that the inspectors placed too much or too little weight on certain evidence. That grievance, without more, has no traction in a claim for judicial review. The weight attached to a particular document – if available and relevant – was a matter for the inspectors, subject only to the traditional principles of public law. Disagreement on the appropriate weight is never, on its own, a proper basis for a public law challenge."
 
The application for permission to apply for judicial review was therefore refused.
 
Interim Relief
 
In respect of the application for interim relief, the Lindblom LJ. provided useful commentary as to the appropriate test for an interim injunction, which would prevent a public body from performing its statutory duty.
 
In his decision, Lindblom LJ. referred to the case of In Ex Parte Factortame Ltd (No.2). In this case, it was held that 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 deciding 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.
 
Lindblom LJ. also referred to case law that suggested the need for "powerful justification" for restraining the publication of a report of a statutory authority under a duty to prepare it and highlighted a number of decisions applying this principle to Ofsted reports.
 
Lindblom LJ. 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. He 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. Lindblom LJ. commented that 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, Lindblom LJ 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. Lindblom LJ found that in any event, the school could make parents and pupils aware of any disagreement it had with the report’s conclusions.
 
As such, Lindblom LJ found that the judge at first instance had not been wrong to refuse the application for an injunction on publication and the appeal was dismissed.
 
Conclusion
 
This decision will be of interest to public bodies in this jurisdiction, especially those who have statutory powers to carry out inspections and prepare reports on foot of those inspections. It is likely to provide comfort to those public bodies who may often publish negative reports about the services whom they regulate in accordance with their statutory powers. The full decision can be accessed here

Wriiten by Eimear Burke and Hannah Unger

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