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 [2020] EWCA Civ 594 athttps://www.bailii.org/ew/cases/EWCA/Civ/2020/594.html, 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.

Interim injunction

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 [1991] 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 [2016] 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 [2018] 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 [2019] 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 Knowles J which had 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.

Peter Oldham QC

In an earlier blog today, my colleague Jonathan Auburn posted a link to the new school admission appeal regulations, or (in full) The School Admissions (England) (Coronavirus) (Appeals Arrangements) (Amendment) Regulations 2020. You can also find them here:- https://www.legislation.gov.uk/uksi/2020/446/made.

The key (rather complicatedly formulated) change is in new reg 7 of, and Sched 2 to, the 2012 Regulations, which are introduced by regs 6-11 of the 2020 Regulations.  Para 2 of the new Schedule 2 applies where the coronavirus crisis means that it is not reasonably practicable for either party to the appeal to appear in person (as the School Admission Appeals Code would otherwise require). In such a case (emphasis added to bring out two points I refer to later on):-

2(1) An appeal panel may decide to hold an appeal hearing using remote access provided—

(a) the parties are able to present fully their case;

(b) each participant has access to the electronic means to allow them to hear and be heard and (where using a live video link) see and be seen, throughout the appeal hearing; and

(c) the panel considers that the appeal is capable of being heard fairly and transparently.

(2) Where any of the conditions prescribed in sub-paragraph (1)(a) to (c) are not met, an appeal panel may make their decision on the appeal based on the written information submitted

“Remote access” means:-

“access to an appeal hearing to enable those who are not all present together at the same place to attend or participate simultaneously in the hearing by electronic means, including by live audio and live video link.”

There are a couple of points here.

First, though para 2(1) says that a LA “may” (for Covid reasons) hold an appeal remotely if the three conditions (a)-(c) are met, does it really mean “must if an in-person appeal can’t be held because of the virus”?  The alternative to holding the appeal remotely is doing it on the documents (para 2(2)) which is said to be an option only if any of the three conditions in para 2(1) are not met.  It seems to me that this means that LAs which cannot hold a in-person appeal because of the virus have to hold it with remote access unless one of the three conditions (a)-(c) is not fulfilled.

Second, what does “remote access” require?  The phrase “including by live audio and live video link” might be ambiguous if you considered the definition on its own: does it mean a link allowing both audio and video access, or does it mean that either an audio and video link, or audio on its own, is enough?  It must mean audio alone is enough as that is implied by the words in brackets in condition (b) in para 2(1).  Whether audio alone would allow the conditions (a) and (c) to be met is a different issue.

The 2020 Regulations also include provisions allowing an appeal panel to have two members for Covid related reasons; and imposing new time limits for the appeal procedure.

Peter Oldham QC

The National College of Teaching & Leadership regulates teachers’ professional conduct on behalf of the Secretary of State. The Teachers’ Disciplinary (England) Regulations 2012 provide for the policing of “Teachers’ Standards”, a document published by SoS, which has a section entitled “Personal and Professional Conduct”. This includes the following:-

“Teachers uphold public trust in the profession and maintain high standards of ethics and behaviour, within and outside school, by: … not undermining fundamental British values, including democracy, the rule of law, individual liberty and mutual respect, and tolerance of those with different faiths and beliefs.” Read more »

There is a rare example of a successful challenge to an OFSTED nursery inspection in R ota Old Co-operative Day Nursery Ltd v OFSTED [2016] EWHC 1126, handed down last week, which can be found here.

In September 2013, the nursery received a glowing OFSTED report. Some months later, OFSTED received a complaint about a child at the nursery getting into the road, and it carried out what the nursery said was an investigation into the complaint, and an inspection.  OFSTED produced a very critical draft report, with a notice to improve. Some stipulations were held by the judge to be “so vague as to be meaningless” (though those in the field might not think that the one referred to in the judgment is very different from many they will have come across).  Further, OFSTED published on its website an “Outcome Summary”, which recorded that the investigation found that children’s safety had been compromised and that the provider had been sent a notice to improve. Read more »

In R ota Ben-dor v University of Southampton [2016] EWHC 953, a judgment handed down earlier this week, the Administrative Court dismissed a challenge that the University had breached s 43 of the Education (No 2) Act 1986 and Arts 10 and 11 of the ECHR in barring a conference entitled “International Law and State of Israel: Legitimacy, Responsibility and Exceptionalism” unless the organisers paid for the added security arrangements needed to meet assessed risks of disturbance to which the conference might give rise.

S 43 provides:-

43.— Freedom of speech in universities, polytechnics and colleges.

(1) Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.

Under s 43(3), the University had to have a code for facilitating the exercise of the s 43(1) duty.

Art 10 concerns freedom of expression, and Art 11 freedom of assembly and association.  Neither are absolute rights, but the Supreme Court in R ota Lord Carlile of Berriew v SSHD [2014] 3 WLR 1404 unsurprisingly said that freedom of expression was an essential foundation of democracy.

The judge dismissed the claim.  The University had relied on evidence-based risk assessments, both internal and from the police, which had warned of a real risk of disturbances.  It had not barred the conference absolutely.  It had followed its s 43(3) code. In short it had acted proportionately in the interference of rights of freedom of speech and assembly.

Peter Oldham QC

The Local Government Association and the DfE are in a row about school places.   The LGA says that there is a looming crisis, with huge numbers of secondaries oversubscribed and primaries hard pressed to meet growing population trends.  The DfE has accused the LGA of scaremongering, and says that sufficient places can be assured through appropriate planning. It says that it allocates funding well in advance so that local needs can be met.

This throws the spotlight on authorities’ powers and duties to provide school places. They have to ensure a sufficiency of places in their area under section 14 of the Education Act 1996.  That power has to be exercised with a view to securing diversity in the provision of schools: section 14(3A).  Section 14A requires them to consider parental representations as to the exercise of the section 14 power. 

Section 6A(1) of the Education and Inspections Act 2006 provides:-

6A  Requirement to seek proposals for establishment of new Academies

(1)     If a local authority in England think a new school needs to be established in their area, they must seek proposals for the establishment of an Academy.

The effect of this section, along with sections 7 and 10 of the 2006 Act, is that authorities cannot publish proposals of their own to set up a maintained school unless (1) SoS’s consent is obtained and (2) the proposed school would replace another school or there has been no response, or no approved response, to an invitation for proposals from anyone else.

Peter Oldham QC

On Tuesday this week, the Education and Adoption Bill completed its passage through Parliament, with the Commons considering the Lords’ proposed amendments. Some were agreed.  These were largely clarifications of the Secretary of State’s powers to take action on “coasting schools”.

The Bill gives a new power of intervention in such schools by adding to the grounds on which SoS can take action in the Education and Skills Act 2006.

Peter Oldham QC

Yesterday’s decision in R ota HA v Hampstead School concerns the power to transfer a pupil to off-site provision for behavioural reasons in section 29A of the Education Act 2002 and the Education (Educational Provision for Improving Behaviour) Regulations 2010.  Section 29A says that the power rests with the governing body, but relying on DFE Guidance the judge held that the headteacher can exercise the power under delegated authority.  However the claim succeeded because the school breached notification provisions under the Regulations, and failed to conduct a review.

Peter Oldham QC

Following Clive’s interesting and informative post just now, a word or two more. The highly fact sensitive approach adopted in R ota X v Y School is also apparent in the employment case of Azmi v Kirklees BC [2007] IRLR 434. Here a primary school teaching assistant wished to wear the niqab in the classroom. The school declined her request. Many of her pupils had English as a second language and the school believed that they should be able to see the teacher’s face as she spoke, so as to increase their proficiency. Applying the same sort of approach that Silber J applied in R ot a X v Y School, the employment tribunal rejected her claim that the school had discriminated against her on grounds of her religion or belief in declining to let her wear the niqab in the classroom. The Employment Appeal Tribunal upheld the ET’s decision.

Peter Oldham QC – Peter appeared in both Azmi v Kirklees BC and R ota X v Y School

by Peter Oldham QC

A Social Market Foundation report entitled “Educational inequalities in England and Wales” has just been published and it’s available here. It contains a great deal of fascinating information, though quite of a lot of it (as you might expect) is not great news.

The SMF looked at inequalities in educational attainment at ages 11 and 16 and how changes in patterns of inequality have evolved over time, by reference to the influence of region, family income, gender and ethnicity.

Regional inequalities are reported to have “remained stubborn and in some cases worsened”, with London and the South East out-performing the rest of the country in GCSEs. The difference in achievement between the richest and the poorest stayed “persistently large” between the 1980s and the 2000s. Patterns of ethnic inequality have greatly changed but a “similar level of unevenness” between ethnic groups remains. Girls outperform boys, and the gender gap has widened.

Peter Oldham QC