Barking & Dagenham College, R (on the application of) v The Office for Students

The College sought interim relief restraining publication of the Office for Students' decision to refuse its application for registration as a higher education provider. The OfS had refused registration principally on the basis that the College did not meet Condition B3 (deliver successful outcomes for all students), having regard to data indicators including continuation rates and graduate progression, and after applying technical algorithms. The claimant argued that the OfS had adopted a narrow rules-based approach, had given insufficient weight to contextual factors (including student characteristics), had changed or failed to disclose material criteria and algorithms, had failed to take relevant matters into account, and that publication would cause irreparable reputational and other harm.

The court applied section 12(3) of the Human Rights Act 1998 because the grant of relief would affect the public right to receive information. The authorities require "pressing grounds" or "exceptional circumstances" to restrain publication by a public body. The judge concluded that the claimant had not shown such exceptional circumstances. Key reasons included the public interest in disclosure (and the OfS's statutory emphasis on transparency), the legitimate and substantial interest of existing and prospective students in being informed, the absence of allegations of bad faith or predetermination, the availability of judicial review and subsequent court remedies (including quashing), and the lack of evidence that reputational harm would be irreparable. The application for interim relief was therefore refused.

Background and parties:

• The Claimant, Barking & Dagenham College, applied to the Office for Students (OfS) on 23 May 2018 for registration as an English higher education provider. The OfS notified a "Minded to Refuse" decision and, after representations, issued a final refusal on 14 August 2019 with detailed reasons. The refusal rested principally on non-compliance with Condition B3 of the OfS initial registration conditions, based on data indicators (continuation, outcomes and graduate progression) and the application of OfS algorithms.
• The College issued judicial review proceedings and applied for urgent interim relief restraining publication of the OfS decision; the OfS sought to publish the refusal. The application for interim relief was heard before Chamberlain J on 8 October 2019.

Nature of the claim / relief sought: The claim is for judicial review of the OfS decision. The interlocutory application was for an injunction restraining publication of the decision pending determination of the claim.

Issues framed:

• Whether section 12(3) Human Rights Act applied so that the court could only grant prior restraint if the claimant was likely to establish at trial that publication should not be allowed.
• Whether the high threshold for restraining publication of a public body's report ("pressing grounds"/"exceptional circumstances") could be met here.
• Whether the OfS had unlawfully narrowed its assessment of Condition B3, failed to take relevant contextual factors into account (including duties under HERA to promote equality of opportunity and transparency and the public sector equality duty), failed to disclose or fairly apply algorithms and criteria, or otherwise acted unfairly or unlawfully in reaching the Decision.
• Whether publication would cause irreparable reputational or other harm, including to students and local regeneration projects, justifying interim relief.

Court's reasoning and conclusions:

• The judge held that section 12(3) HRA applied because the relief sought would affect the public's right to receive information, so the court (unless otherwise deciding not to grant relief on other grounds) must be satisfied the claimant is likely to establish at trial that publication should not be allowed. The judge nevertheless assumed, for the purposes of the interim application, the highest threshold (that the claim was more likely than not to succeed) but proceeded to apply the established common law approach to public-body publication injunctions.
• The court surveyed authorities (including Taveta, Vernons, Cambridge Associates, City College Birmingham and others) and emphasised the strong public interest in publication of regulatory decisions, particularly where a statutory regulator is involved and where publication assists existing and prospective users of a service (here students and employers).
• The judge found the College's asserted grounds fell within mainstream judicial review pleadings and did not exhibit the exceptional features present in cases where interim relief has been granted (for example, allegations of predetermination, clear procedural infection or compelling evidence of irreparable harm). The court gave weight to the direct informational interest of affected students who should know their position with respect to loan eligibility and course continuity, and prospective students who need accurate information when making choices.
• The judge concluded there were no "pressing grounds" or "exceptional circumstances" to restrain publication: the public interest in disclosure, the existence of corrective judicial processes, the absence of bad faith, and the assessable nature of the alleged errors dictated refusal of interim relief. The application was refused. The court also invited OfS to consider more precise wording in any press release identifying which courses were affected.

Procedure and context note: The judgment records the procedural history, the College's six pleaded grounds of challenge, an additional dataset point raised shortly before the hearing, and the judge's consideration of the likely audience and consequences of publication. The court emphasised that interim relief to restrain publication by a public body is an exceptional remedy and rare.

Application for interim relief restraining publication refused. The judge applied section 12(3) Human Rights Act 1998 and the established authorities requiring "pressing grounds" or "exceptional circumstances" to restrain publication by a public body; concluded that the public interest in disclosure, the information needs of existing and prospective students, absence of bad faith or predetermination, and the availability of judicial remedies meant the high threshold was not met.