The Interim Executive Board of X, R (on the application of) v Ofsted

The claimant sought judicial review to quash an Ofsted inspection report and to restrain its publication. The court applied the high threshold applicable to interim public law injunctions (drawing on American Cyanamid principles as adapted in public law cases such as R (Birmingham City College) v Ofsted and Vernons), and recognised the public interest in publication under the Education Act 2005 (s.11(1)).

The judge held that, on the material before the court, there was a plausible and arguable case that the process leading to the July 2016 report was infected by a pre-determined mindset or prejudice (including concerns arising from HMCI's visit of 8 June 2016 and the conversion of a Section 8 inspection into a Section 5 inspection). The lead inspector's evidence was held to be unspecific on key points. Given the marked and unexplained inconsistency between the July 2016 report and earlier monitoring reports, and the risk of serious and potentially irreparable harm to the school and community if publication were immediate, the balance of convenience favoured maintaining the interim injunction granted by Wyn Williams J until the question of permission for judicial review had been determined or further order.

Background and parties: The Interim Executive Board of a voluntary aided school (the claimant) challenged an Ofsted inspection report dated July 2016. Wyn Williams J had granted an interim order on 21 July 2016 restraining publication. Ofsted applied to set that interim order aside. The claimant sought, ultimately, quashing of the report and an order preventing publication, together with ancillary relief and declarations. The proceedings were at first instance in the Administrative Court.

Facts: The school had been in special measures in 2014, an IEB had been appointed and, by December 2015, three subsequent monitoring reports recorded improvement and removal from special measures. On 8 June 2016 HMCI visited the school; shortly afterwards Ofsted carried out an inspection on 13–14 June 2016 led by an inspector who had prior involvement in earlier inspections. The inspection was converted from a Section 8 to a Section 5 inspection. The resultant July 2016 report assessed overall effectiveness as "Inadequate" and criticised segregation of boys and girls, safeguarding, governance and equality of opportunity (citing s.149 Equality Act 2010 and the Specific Duties Regulations 2011). The school objected to a number of assertions in the draft and made a formal complaint about the conduct of the inspection.

Nature of the claim and relief sought: The claimant sought judicial review: interim relief to restrain publication (already granted by Wyn Williams J) and, as final relief, quashing of the report and injunctive and declaratory relief preventing publication.

Issues framed by the court: (i) whether there was an arguable public law case that the inspection and report were irrational, lacked evidential basis, were biased or predicated by an improper motive; (ii) whether the high threshold for restraining publication by a public body was met; (iii) whether publication would cause irreparable harm and where the balance of convenience lay; and (iv) the relevance of prior inspection reports and statutory powers to publish (Education Act 2005 s.11(1)).

Reasoning and decision: The judge recognised the elevated burden for a claimant seeking to restrain publication by a public body and reviewed authorities requiring "pressing" or "compelling" reasons. The court found a striking and apparently irreconcilable discrepancy between the July 2016 report and earlier monitoring reports. The evidence of a confrontational HMCI visit on 8 June and subsequent events gave rise to a plausible inference of a pre-determined mindset that could have infected the inspection. The witness statement of the lead inspector was held to be unsatisfactory and insufficiently specific to rebut the claimant's case at this interim stage. The court accepted evidence that publication on the planned timetable risked serious and in some respects irreversible harm to the school and community cohesion, particularly given the timing (end of term). Balancing the public interest in publication against the risk of irreparable harm, and having regard to the exceptional nature of restraining a public body's publication, the judge concluded that the claimant had established pressing grounds and social need to maintain the interim injunction. The application to set aside Wyn Williams J's interim order was refused and the interim injunction was continued until determination of permission or further order.

Contextual note: The judgment records the rarity and high threshold of the remedy of restraining publication by a public body and emphasises that the decision was based on the material before the court at an urgent interim hearing, not on final findings of fact.

The defendant's application to set aside Wyn Williams J's interim injunction was refused. The court concluded that, on the material before it, there was an arguable case of a pre-determined mindset or prejudice affecting the inspection and that publication would risk serious and potentially irreparable harm. For these reasons the interim injunction granted on 21 July 2016 was to be maintained until the question of permission to bring judicial review proceedings had been determined or until further order.