Press Standards Board of Finance Ltd, R (On the Application Of) v The Secretary of State for Culture, Media And Sport

In a procedural fairness challenge, the court must assess whether the claimant had a fair and effective opportunity to present its case. A decision-maker need not disclose all third-party responses, consult on provisional reasons, or provide a further opportunity to address a proposed adverse decision unless fairness requires it in the circumstances. A procedural defect will not justify relief where the court concludes that a lawful procedure could not realistically have produced a different outcome. For interim injunctive relief in matters of substantial public interest, the court should exercise caution. There is no general threshold requiring a strong prima facie case, although public-interest considerations are relevant to the balance of convenience.

The claimant sought permission to apply for judicial review of a Privy Council committee’s recommendation that its proposed press-regulation charter be rejected and of the resulting Order in Council. It alleged procedural unfairness, inadequate consultation, breach of procedural legitimate expectation, irrationality, and infringement of Article 10 of the European Convention on Human Rights.

The claimant also sought an interim injunction preventing consideration of the Government’s competing press-regulation charter. The central issues were whether the decision-making process was arguably unfair and whether interim relief should be granted pending determination of the proposed judicial review.

1. Permission and injunction. The court refused permission to apply for judicial review and refused the interim injunction. The claimant was ordered to pay the defendant’s costs, summarily assessed at £13,545.50. Permission to appeal was refused.
2. Procedural fairness. The published criteria, the extensive background debate, and the Government’s known policy informed interested parties of the issues requiring comment. The claimant’s petition itself constituted its representations on the appropriate framework. There was no arguable denial of a fair opportunity to present its case.
3. The claimant had no legitimate expectation, or freestanding right arising from fairness, to be consulted on responses from other interested parties. Nor was the committee required to disclose provisional reasons for rejection and allow a further round of representations before deciding the petition. It was entitled to decide on the material before it.
4. The various formulations of the challenge—right to be heard, consultation, legitimate expectation, conspicuous unfairness and procedural irrationality—added no substantive point. Article 10 of the European Convention on Human Rights did not materially alter the analysis, and there was no arguable infringement.
5. Even assuming some procedural deficiency, the evidence disclosed no realistic possibility that a different procedure would have produced a different result. The reasons for rejection were founded on stated Government policy and made a different outcome inconceivable. This conclusion did not depend on a closed mind or fettering of discretion.
6. As to interim relief, the court rejected the suggested general threshold of a strong prima facie case. The authority relied upon, R v Secretary of State for Health, ex parte Scotia Pharmaceuticals [1997] Eu LR 626, did not establish such a threshold. Nevertheless, caution was required because the injunction concerned an important public-interest decision. The balance of convenience strongly favoured allowing consideration of the Government’s charter to proceed.

First-instance decision of the Divisional Court. Permission to appeal was refused by the court.