Chief Inspector of Education, Children's Services And Skills v The Interim Executive Board of Al-Hijrah School

A body with knowledge of proceedings should apply to join or intervene before an appeal is concluded. An application made after the appeal and sealing of the order will ordinarily be refused where the claimant could appeal, accepts the decision and is implementing it. A concluded appeal should not be reopened to address wider arrangements or provide general guidance on future inspections where the proceedings concerned a specific report and specific arrangements. Permission to appeal may also be refused where the proposed appeal has no real prospect of success and would prolong uncertainty.

The Court of Appeal had handed down judgments allowing Ofsted’s appeal from the Administrative Court and dismissing the School’s judicial review claim. The underlying decision was reported at [2016] EWHC 2813 (Admin). The order was sealed, and the School accepted and was implementing the decision. The Association of Muslim Schools, which had known of the proceedings and appeal, applied after the appeal had concluded to be joined as a respondent, interested party or intervenor, principally to seek permission to appeal. The central issue was whether it should be permitted to enter the concluded proceedings.

1. Application refused. The Court of Appeal refused the Association of Muslim Schools’ application to be joined as a respondent, interested party or intervenor.
2. The Association had been aware of both the proceedings and the appeal but had not applied to participate until after the appeal had concluded and the order allowing the appeal and dismissing the claim had been made and sealed. That delay was decisive in context.
3. The School was the claimant, had the resources to appeal, and had consciously accepted the Court of Appeal’s decision. It was working with the Council to implement it. The Association could not use joinder to pursue an appeal which the losing party itself did not support.
4. The judgments concerned the legality of an Ofsted report about the particular segregation arrangements at the School. Although they touched on matters of general application, they did not determine other arrangements, such as separation for particular activities, or the precise arrangements in schools organised around other faiths. The Association had provided no sufficiently specific evidence about those matters.
5. The proposed uncertainty about what schools might expect during future Ofsted inspections did not justify joinder. Directing Ofsted on future inspections had not formed part of the claim or appeal and would not have formed part of any appeal to the Supreme Court.
6. Even if joinder had been granted, the court would have refused permission to appeal, among other reasons because the appeal would have had no real prospect of success and would have prolonged uncertainty for the Council and the School.

1. Court of Appeal (Civil Division): On 7 November 2017, the court refused the Association of Muslim Schools’ post-judgment application for joinder or intervention.
2. Court of Appeal (Civil Division): On 13 October 2017, the court allowed Ofsted’s appeal and dismissed the School’s judicial review claim. The School did not seek permission to appeal to the Supreme Court.
3. High Court of Justice, Queen’s Bench Division, Administrative Court: The underlying judicial review proceedings were decided by Mr Justice Jay, at [2016] EWHC 2813 (Admin).