X Limited, R (on the application of) v Chief Inspector of Education, Children's Services and Skills & Anor

Permission for judicial review requires a properly arguable case, but the threshold is relatively low. A claim against a public authority is premature where the authority has made no decision and has neither threatened nor indicated impending unlawful action.

Interim relief restraining publication of a statutory inspection report requires pressing grounds, compelling reasons or exceptional circumstances. The court must give substantial weight to the public interest in timely publication and to the public’s Article 10 right to receive information. Serious commercial or reputational consequences will not necessarily justify restraint, particularly where the claimant may publicise the challenge and an expedited hearing can reduce the period of uncertainty.

X Limited challenged HMCI’s provisional assessment that its training provision was inadequate. It sought permission to apply for judicial review against HMCI and the Secretary of State, together with interim relief restraining publication of the inspection report and preventing detrimental contractual action by ESFA.

The court also considered whether the public and private law claims should be consolidated or heard together. Permission to amend the grounds and rely on further witness evidence was granted. The central issues were whether the claims were arguable, whether the claim against the Secretary of State was premature, and whether the stringent test for interim restraint of publication was satisfied.

1. Permission against HMCI. The test was arguability: whether the claimant had a properly arguable case to which the defendant could not deliver a knockout blow. Applying that low threshold, permission for judicial review was granted on all six grounds. The court expressed no view on the merits.
2. Permission against the Secretary of State. The claim was premature. ESFA had taken no decision affecting X Limited, had not threatened to do so, and had made clear that it would not act on provisional findings before publication of the final report. The Secretary of State was under no obligation to give the undertaking sought. ESFA was entitled to await the final report, the outcome of the challenge and any representations before deciding whether action was needed.
3. Interim relief against the Secretary of State. The proposed relief was substantially mandatory, requiring continuation of the contract and funding. Such relief required a high degree of assurance that the claimant would succeed at trial, which was absent: Quest v SS for Education [2023] EWHC 3578 at [85].
4. Restraint of publication. Under section 125(7) of the Education and Inspections Act 2006, HMCI had a statutory duty to arrange publication of inspection reports. Following Taveta Investments v Financial Reporting Council [2018] EWHC 1662, R (on the application of Barking and Dagenham College) v Office for Students [2019] EWHC 2667 (Admin) and R (Governing Body of X) v Office for Standards in Schools [2020] EWCA Civ 594, interim restraint required a high hurdle, described as pressing grounds, the most compelling reasons or exceptional circumstances. The public interest in publication, HMCI’s Article 10 rights, and the public’s right to receive information carried very substantial weight.
5. X Limited’s potential loss of funding and damage to its operations did not meet that threshold. Funding termination was uncertain, representations would be available, and X Limited could explain publicly that the report was challenged. An expedited judicial review hearing could further limit the period before the legality of the report was determined. The interim injunction was therefore refused against both defendants.
6. The application to consolidate or hear the public and private law claims together was not pursued.