R v Inspectorate of Pollution, Ex parte Greenpeace Ltd (Greenpeace Ltd, Ex parte)

Where a judicial-review stay would in substance prevent a third party from acting under an impugned public decision, the court should apply the ordinary principles for interlocutory injunctions. The balance of convenience may include the likely effect on the third party, the extent of any public harm, and the availability of a cross-undertaking in damages.

Fresh evidence on appeal does not itself permit a fresh exercise of discretion. It must undermine the reasons for the first-instance decision before an appellate court may substitute its own discretion.

Greenpeace obtained leave to seek judicial review of a decision by the Inspectorate of Pollution and the Ministry of Agriculture, Fisheries and Food to vary an authorisation under the Radioactive Substances Act 1960. The variation permitted British Nuclear Fuels plc to begin a stage of commissioning tests for the THORP plant at Sellafield.

Brooke J refused Greenpeace a stay pending the expedited substantive judicial-review hearing. Greenpeace appealed only against that refusal. The central issue was whether the Court of Appeal should interfere with the exercise of discretion, particularly in light of fresh evidence identifying stages of the testing programme.

1. By a majority, the appeal was dismissed. Glidewell and Scott LJJ held that Brooke J had correctly refused a stay. Evans LJ dissented on the effect of the fresh evidence and would have granted a short stay before the second testing phase.

2. Glidewell LJ held that, although the relief was framed as a stay of the departments’ decision, its practical effect would be to restrain British Nuclear Fuels, a third party, from commissioning the plant. The court should therefore apply the ordinary interlocutory-injunction principles in American Cyanamid [1975] AC 396. Scott LJ agreed, adding that the more suitable procedure would ordinarily be to join the third party and seek an injunction, but the court must look to substance rather than form.

3. The judge had properly weighed the regulator’s expert view, the very limited additional discharges, the possible financial loss to British Nuclear Fuels, and Greenpeace’s failure to offer a cross-undertaking in damages. Scott LJ held that where a judicial-review stay would prevent a third party exercising rights granted by the impugned decision, a cross-undertaking was a permissible and, absent special features, normally expected condition of interim relief.

4. The later evidence divided the proposed testing into phases, but did not invalidate Brooke J’s reasons for refusing an immediate stay. Applying Hadmor Productions Ltd v Hamilton [1983] AC 191, the majority held that fresh evidence did not warrant the Court of Appeal exercising an original discretion. Evans LJ considered that the transition to phase 2 was a materially different question and would have restrained it briefly pending the substantive hearing.

5. The appeal was dismissed. Costs were awarded to both respondents and British Nuclear Fuels.

• Court of Appeal: Appeal dismissed, by majority, from the refusal of interim relief: [1993] EWCA Civ 9.

• High Court (Brooke J): Leave to apply for judicial review was granted, but a stay of the variation of the authorisation was refused on 1 September 1993.