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

A public body’s power to publish a report does not prevent interim restraint, but the claimant must overcome heightened public-law hurdles in addition to the ordinary American Cyanamid principles. The court must consider the public interest in publication, the nature of the power or duty to publish, and whether there are pressing grounds or exceptional circumstances for restraint. The apparent strength of an arguable case, including credible evidence of bias or a predetermined approach, may be relevant. Previous inspection reports should be taken into account, although later inspectors are not bound by them and inconsistency alone does not establish unlawfulness. Interim publication may be restrained where the challenge is unusually strong and publication risks widespread, irreparable harm, particularly where the report may have been produced through an improper inspection process.

The claimant, an interim executive board, sought judicial review of an Ofsted report which assessed the school as inadequate and proposed its publication. The claim alleged irrationality, lack of evidential basis, lack of independence, bias, unequal treatment, and use of inspection powers for improper statutory purposes.

Ofsted applied to set aside an interim order made by Wyn Williams J restraining publication. The court considered the application on incomplete evidence, before service of an acknowledgement of service and before the merits could reliably be determined. The central issue was whether the claimant had established sufficient grounds to maintain interim restraint of publication pending determination of permission or further order.

1. Interim restraint in public law. A claimant seeking to restrain publication by a public body faces additional public-law hurdles beyond the ordinary interlocutory injunction principles under American Cyanamid. The court must account for the public interest in publication and the nature of the body’s statutory power or duty to publish. The applicable threshold has been described in terms including pressing grounds, exceptionally strong grounds, and most compelling reasons (paras [31]-[37]).
2. The different formulations do not create a separate rigid test. The apparent strength of the claimant’s case and the circumstances alleged to underpin it may be considered. Credible evidence of bias, predetermined thinking, or other reprehensible conduct may materially strengthen the case for interim restraint (para [37]).
3. Previous Ofsted reports are relevant to subsequent inspections, but later inspectors remain independent and are not bound by earlier conclusions. A later report is not unlawful merely because it is inconsistent with an earlier report, even where the inconsistency is stark (para [38]).
4. The documentary evidence showed an extraordinary and apparently irreconcilable divergence between the challenged report and three recent reports. The evidence concerning the Chief Inspector’s visit, the timing and conduct of the inspection, and the removal of unsupported material from the draft report gave rise to an arguable case that the process had been affected by a predetermined mindset or prejudice. The court made no final findings on disputed facts (paras [39]-[45]).
5. Publication before determination of the substantive claim could cause serious and irreparable damage, including community tensions and harm to the school’s ability to respond. Delay would cause only temporary inconvenience to Ofsted and would not undermine the general public interest in publishing a valid report (paras [46]-[50]). The interim injunction was therefore maintained until the question of permission for judicial review had been determined or further order (para [50]).

First-instance ruling on Ofsted’s application to set aside an interim order made by Wyn Williams J. The interim injunction restraining publication was maintained.