Cityfibre Ltd, R (on the application of) v Advertising Standards Authority

Permission for judicial review should be granted where the proposed challenge is sufficiently arguable to pass the threshold under the CPR. At the permission stage, the court should avoid conducting the substantive merits hearing or undertaking disproportionate factual and statistical analysis. A challenge may properly proceed where there is an arguable question whether a regulator materially misunderstood or inadequately considered research bearing on its decision. Permission to amend grounds may nevertheless be refused where the proposed amendment would add an unnecessary exegesis of the statistical adequacy or robustness of the evidence and would not assist the required intensity of review.

Cityfibre applied for permission to bring judicial review proceedings against an Advertising Standards Authority decision concerning the advertising of full-fibre and part-fibre broadband products. The ASA had concluded that part-fibre providers were not misleading consumers by failing to distinguish their products from full-fibre products. The proposed challenge relied, among other matters, on alleged misrepresentations and inadequate consideration of a consumer research report, and on the treatment of evidence about consumers’ likely purchasing choices. A single judge had refused permission on paper. The oral application concerned whether the claim was sufficiently arguable and whether additional grounds concerning the statistical adequacy or robustness of the report should be permitted.

1. The court granted permission to apply for judicial review. The proposed challenge was sufficiently arguable to pass the threshold laid down in the CPR.

2. The court did not determine the substantive merits at the permission stage. The allegations included an arguable case that the ASA had relied heavily on the executive summary of the Define Report while giving less or inadequate consideration to the report’s underlying findings. It was also arguable that the ASA had inadequately addressed the significance of evidence that consumers remained unable to distinguish the advertised products even after being given relevant information.

3. The court refused permission to amend the grounds to include issues concerning the statistical adequacy or robustness of the report. The intensity of review required on any substantive challenge would not be assisted by disproportionate statistical exegesis.

4. The court indicated that interested parties should limit their participation to the conceptual public-law issues where possible. Unnecessary factual detail and disproportionate involvement by all broadband providers should be avoided. Costs were costs in the case, with ordinary directions and liberty for the parties to inform the court if the estimated hearing length proved inappropriate.

High Court (Administrative Court): a single judge refused permission on paper. Mr Justice Turner, on the oral renewal, granted permission to seek judicial review but refused permission to amend the grounds concerning the statistical adequacy or robustness of the report.