London Borough of Brent, R (on the application of) v FED 2000 & Ors

For interlocutory relief, a claimant must show a serious question to be tried and that the balance of convenience favours relief. A body subject to public-law duties arising from its promotion of a voluntary aided school may remain obliged to support and co-operate in implementing that status after the school’s establishment. Failure to resist, or seek to prevent, termination of premises essential to the school may arguably amount to surrender or termination of the lease by the body itself or by others. Closely connected entities may be joined where their collaboration and involvement in the alleged breach are arguable. Joinder may also be justified where an entity’s public-law status remains uncertain but its presence is desirable for resolving the issues.

The London Borough of Brent sought urgent interlocutory relief concerning the Avenue School, a Muslim primary and nursery school which had become a voluntary aided school pursuant to an earlier order of Lloyd Jones J. The order required FED 2000 to implement the proposals and restrained it, whether by itself or others, from surrendering or terminating the school premises lease until 16 January 2007.

The premises’ landlord, the Charity Islamic Trust Elrahma, had served notice terminating the lease and later prevented access to the premises. Brent alleged that FED 2000 and Elrahma had acted together to undermine the school’s voluntary aided status, and sought relief against both entities. The central issues were whether FED 2000 had arguably breached the earlier order, whether Elrahma should be joined, and whether interim relief was justified.

1. Interlocutory threshold. Brent had shown a serious question to be tried. The evidence disclosed an arguable case that FED 2000 and Elrahma had acted together in relation to the school premises, having regard to their overlapping trustees, shared premises and other links, the timing of the decisions, and FED 2000’s failure to resist or challenge termination of the lease.
2. FED 2000’s obligations. FED 2000 was arguably bound by paragraph 5 of the earlier order even though the lease termination was effected by Elrahma. Its failure to do anything to resist termination or persuade Elrahma to relent could arguably amount to surrender or termination by FED 2000 itself or “by others”. The duty to co-operate also arguably required FED 2000 to keep Brent informed of developments threatening the continuation of the school.
3. Continuing statutory duties. The public-law obligations arising from FED 2000’s promotion of voluntary aided status did not necessarily end when the premises were first made available. The implementation obligation under paragraph 5(1)(a) of Schedule 6 to the School Standards and Framework Act 1998 was arguably continuing, and the effect of FED 2000’s acts and omissions could arguably constitute a failure to implement the proposals. Section 29 did not itself apply to FED 2000 as promoter, although trustees who were also foundation governors could arguably be failing to comply with their public-law duties.
4. Elrahma. It was arguable that Elrahma had procured or was intimately involved in FED 2000’s breach. Its close involvement with the school and FED 2000 could also arguably give it sufficient public-law status for joinder. Alternatively, if it had not acquired public-law duties, joinder as an interested party was arguably justified on the principles identified in R v Secretary of State for Health, ex p Scotia Pharmaceuticals Ltd [1997] Eu LR 625.
5. Relief and order. The balance of convenience favoured short-term relief. Elrahma was joined, the former temporary governing body was removed from the proceedings, and both defendants were restrained until 18 September 2006 from preventing or hindering access to the premises. The order created no tenancy, and costs were reserved.