The Court of Appeal has maintained the heightened hurdle test when it comes to seeking an injunction over an Ofsted report, says Peter Oldham QC.
The normal Cyanamid test for granting an interim injunction is whether there is a serious issue to be tried; if so, whether damages would be a sufficient remedy; and if not, where the balance of convenience (or balance of injustice) lies. Sometimes these stages, particularly the last two, get compressed together.
But where a party brings a judicial review claim against a draft report produced by a public body under its statutory duties, and seeks an interim injunction to prevent it being published pending the outcome of the claim, the Court will apply a heightened test, making it harder for the claimant to get the injunction. This is the approach which the Courts have uniformly applied to applications for interim injunctions against the publication of OFSTED reports.
In R (X School) v OFSTED  EWCA Civ 594 at, in a judgment handed down on 7th May 2020, the Court of Appeal considered a secondary school’s appeal against Julian Knowles J’s refusal of an interim injunction to prevent publication, pending trial, of an OFSTED report of an inspection in October 2019.
Whilst the Court of Appeal outcome (as we will see) applied a long established test, the procedure was slightly unusual. Knowles J had refused the application for the interim injunction, but he had not determined whether permission to apply for judicial review should be granted. The Court of Appeal constituted itself as a Divisional Court under ss 9 and 66 of the Senior Courts Act 1981 to determine the application for permission to apply. The grant of permission would be the first issue, since if permission were not granted, there would be no claim to which the application for the interim injunction could attach. If permission were granted, and there was therefore a live claim, the next question would be whether to grant the interim injunction. To determine the injunction issue, the Court of Appeal would sit as the appeal court.
Permission to apply
The facts were that the draft report grades were a mixed bag, but safeguarding and overall effectiveness were “inadequate”, with the very serious criticism that “a large minority of pupils do not feel safe in school. They are concerned that leaders do not tackle issues such as bullying well enough … .” The school’s main ground of claim was that it was irrational for OFSTED, on the evidence before it, to grade the school as “inadequate” when it had been graded “good” in 2016 (there was also a claim that OFSTED’s procedures were unfair, which was given short shrift).
Lindblom LJ gave the only reasoned judgement; the Chancellor and Henderson LJ agreed with him. Lindblom LJ said that irrationality was difficult to establish, and that the school failed to do so. Accordingly permission to apply was refused.
Because permission to apply was refused, Lindblom LJ said that it “may be academic” for the Court to deal with the interim injunction appeal, but it did so because “the law may require some clarification from the Court of Appeal”.
He referred first to the Cyanamid test, and said that in public law proceedings these principles had been applied in a modified way. In Factortame No 2  1 AC 603, Lord Goff said at 674:
“In the end, the matter is one for the discretion of the court, taking into account all the circumstances of the case. Even so, 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.”
Against that general background, Lindblom LJ turned to the cases about interim injunctions to prevent a report by a public body. He referred to a number of the OFSTED injunction cases, saying:-
“67 There is also support for the proposition that the court will require a powerful justification for restraining the publication of a report of a public body under a duty to prepare it, including reports prepared by Ofsted.”
He enumerated a number of cases where such an such an application had failed, and one where it had succeeded – R (Interim Executive Board of X) v Ofsted  EWHC 2004, where the judge had found that the draft report was “frankly inconsistent” with an earlier draft, that there was “clear evidence of antagonistic behaviour” by inspectors during the inspection, and “compelling evidence” that the effect of publication could be “extremely adverse and irreparable”.
Lindblom LJ referred to Taveta Investments Ltd. v Financial Reporting Council  EWHC 1662 (a defamation case) in which Nicklin J had applied the high hurdle test, but had questioned whether it was correct, wondering whether it could be justified in the light of ECHR Art 8 (right to privacy). In R (Barking and Dagenham College) v Office for Students  EWHC 2667 Admin, Chamberlain J said that, unlike Nicklin J, he had no reservations about applying the long established high hurdle test. Lindblom LJ said that Chamberlain J’s judgment was correct, and that there was no inconsistency between the approach in Factortame No 2 and Arts ECHR Art 8 and 10 (right to freedom of expression). He continued:
“79. Chamberlain J. was therefore right to refer to the concept of a “high hurdle”, and the various phrases corresponding to it that one sees in the authorities. As the case law shows, the facts will vary from case to case. But it is, I think, highly unlikely that the kind of circumstances justifying the grant of injunction that arose in Interim Executive Board of X will often occur; they were indeed exceptional. In striking the balance overall, the court will keep in mind that only if the factors weighing in favour of an order to restrain publication are nothing less than compelling should such relief be granted.”
This was the approach of Knowles J which had been correctly applied. The Court of Appeal said that he had been “clearly entitled” to regard the considerations in favour of interim relief as being outweighed by the “very strong factors against”. Accordingly the appeal was dismissed for these further reasons.