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

An injunction restraining a public authority from publishing an adverse regulatory decision requires compelling grounds, described in the authorities as pressing grounds, the most compelling reasons or exceptional circumstances. The public interest in receiving information from a regulator carries substantial weight under article 10 of the Convention, particularly where publication serves existing or potential users of the regulated service. That public interest does not depend on whether publication is required by a statutory duty or is undertaken pursuant to a statutory power. The court must intensely focus on the comparative importance of the competing Convention rights. Reputational harm, possible misunderstanding and anxiety will not ordinarily justify suppression where the claimant can explain the decision and the pending legal challenge.

The College applied to the Office for Students for registration as a higher education provider. The OfS refused the application, principally because the College did not satisfy registration condition B3 concerning successful student outcomes. The College issued judicial review proceedings challenging that decision and sought urgent interim relief restraining publication of the refusal.

The application concerned publication of the regulatory decision, not permission to apply for judicial review or the merits of the substantive claim. The central issues were whether section 12(3) of the Human Rights Act 1998 applied and whether the alleged errors, together with the claimed reputational and public-interest consequences, amounted to the exceptional circumstances required for interim relief.

1. Application refused. The College failed to establish the compelling grounds, most compelling reasons or exceptional circumstances required to restrain publication of an adverse decision by a public authority.
2. Section 12(3) of the Human Rights Act 1998 applied because publication would affect the article 10 rights of existing and potential students to receive information which the OfS wished to communicate in the exercise of its statutory functions. Although “likely” generally means more likely than not, and may mean less in cases involving very severe consequences, the court assumed in the College’s favour that the claim met the highest possible threshold without deciding the merits.
3. The court followed the established line of authority concerning interim relief against publication by public authorities. There is a significant public interest in publication, particularly where the authority has functions intended to inform a specific section of the public. The same principle applies where publication is pursuant to a statutory power rather than a statutory duty.
4. Articles 8 and 10 have no automatic precedence over one another. An intense focus on the comparative importance of the specific rights in the individual case is required. The right of students and prospective students to receive relevant regulatory information carried very substantial weight.
5. The circumstances relied upon by the College were insufficient. Existing students had a practical interest in knowing that their future access to student loans was contingent on a teach-out application. Prospective students were entitled to know of the refusal so that they could make alternative arrangements. Possible misunderstanding of the decision could be addressed by the College’s own explanation and by publicising the fact that the decision was under challenge.
6. The decision in R (Interim Executive Board of X School) v Ofsted was distinguishable. That case involved unusual evidence of inconsistency, antagonistic conduct, possible predetermination or prejudice, and exceptionally serious and irreparable consequences. The present grounds were mainstream judicial review grounds and involved no allegation of bad faith.
7. The application for interim relief was refused. The court would hear the parties on any further directions for management of the substantive claim.