City College Birmingham, R (on the application of) v Office for Standards in Education, Children Services and Skills

An injunction restraining a public body from publishing a report or decision engages considerations beyond the ordinary private-law test. Even where the claimant establishes an arguable public-law case, restraint requires exceptional circumstances, pressing grounds, or the most compelling reasons. The threshold is especially high where publication is required by statute and concerns information which the public is entitled to receive. Article 10 considerations and the reluctance to restrain one public body at the instance of another reinforce that approach. An alternative complaints procedure may provide a route for challenging maladministration, but it does not ordinarily justify preventing publication.

The claimant college sought an injunction preventing Ofsted from publishing an inspection report pending a proposed judicial review. The challenge concerned the continued Grade 4 assessment for overall Effectiveness of Provision after Ofsted had re-presented the grading of part of the college’s ESOL provision. The claimant alleged Wednesbury unreasonableness and breach of legitimate expectation, and argued that the relevant judgment should have been reconsidered by the inspection team collectively.

Publication was subject to a statutory duty under the Education and Inspections Act 2006. The issue was whether an arguable public-law challenge, together with the alleged harm to the college, justified restraining publication before permission had been determined.

1. Application dismissed. The claimant’s application for an injunction restraining publication of the Ofsted report was dismissed. The claimant was ordered to pay the defendant’s costs of the application, summarily assessed at £5,000.
2. The court accepted, for the purpose of the injunction application, that the claimant had an arguable public-law case. It did not determine permission because the defendant had not been given proper notice that permission would be sought at the hearing. The paper application for permission was to be considered after 31 July 2009, unless the claimant notified the court otherwise.
3. The ordinary private-law approach, reflected in American Cyanamid, asks whether there is an arguable case and where the balance of convenience lies. Public-law applications to restrain publication require additional considerations. The authorities identified a substantially higher threshold, expressed as pressing grounds, exceptionally strong grounds, exceptional circumstances, extreme circumstances, or the most compelling reasons.
4. The threshold was particularly demanding here. Ofsted had a statutory duty to publish inspection reports, and publication engaged the public’s interest in receiving information and the Article 10 right to freedom of expression. Courts should also be slow to grant an injunction sought by one public body against another.
5. The alleged procedural and rationality defects did not amount to the most compelling reasons or exceptional circumstances required to prevent publication. The Ofsted complaints procedure provided a possible route for investigating maladministration, but it did not provide a means of preventing publication.