GB News Limited, R (on the application of) v Office of Communications

Permission for judicial review does not automatically or presumptively justify a stay of administrative proceedings. A stay and an injunction producing the same practical effect are subject to the same threshold.

Where interim relief would prevent publication of a regulatory decision, the court must account for the public authority’s public functions and the Article 10 rights of those entitled to receive information. Where the process is close to completion and the claimed harm principally arises from publication, relief requires pressing grounds, the most compelling reasons or exceptional circumstances. The public interest in completing and publishing the regulatory process may outweigh the applicant’s commercial and reputational interests.

GB News Limited sought permission to challenge an Ofcom decision that a programme featuring the Prime Minister breached rules 5.11 and 5.12 of the Broadcasting Code. It argued that Ofcom had acted unlawfully in assessing due impartiality, interpreting the provision for clearly linked and timely programmes, and treating the breach as serious and repeated.

The court granted permission on the first two grounds. The third ground was withdrawn after Ofcom confirmed that its assessment of seriousness and repetition was provisional. GB News also sought a stay or equivalent interim injunction preventing Ofcom from completing its sanctions process. By the hearing, that process was nearly complete and Ofcom had undertaken not to enforce any monetary sanction or broadcasting requirement pending determination of the judicial review claim.

1. Permission. Grounds concerning the fairness, proportionality and interpretation of the Broadcasting Code were reasonably arguable and raised matters of considerable public importance. Permission was granted on those grounds. The challenge to the finding that the breach was serious and repeated was withdrawn after Ofcom confirmed that the finding was provisional.
2. Same threshold for equivalent relief. A stay under CPR rule 54.10(2)(a) and an interim injunction producing the same practical effect are governed by the same threshold. Granting permission is a necessary condition for a stay, but it does not automatically or presumptively justify one.
3. Interim relief and public interest. The court rejected the submission that a stay would usually follow once permission had been granted. The balance of convenience in public law includes the public interest in allowing a regulator to perform its statutory functions. That interest may include the Article 10 rights of persons wishing to receive information published by the regulator.
4. Although the heightened approach used where relief restrains publication may not apply at the very start of an administrative process, it was appropriate here. The sanctions process had continued for nearly three months, was close to completion, and the claimed harms principally arose from publication of the forthcoming decision rather than from continuation of the process itself.
5. The Communications Act 2003 imposed a statutory duty of transparency on Ofcom. Completing and publishing the sanctions decision could promote confidence in the regulatory regime, reinforce compliance by market participants, and inform viewers and advertisers. Those public and private interests outweighed the claimed commercial, reputational and procedural prejudice. The claimant had not shown pressing grounds, the most compelling reasons or exceptional circumstances.
6. The court would have refused relief even under the ordinary American Cyanamid balance of convenience test, modified for the public law context. Relief was therefore refused.

First-instance judicial review proceedings in the Administrative Court. No appellate history is stated in the judgment.