South East Water Limited, R (on the application of) v Water Services Regulation Authority

Interim relief restraining a public authority from publishing a proposed regulatory decision requires more than a serious issue to be tried. Under Human Rights Act 1998, section 12(3), the claimant must be likely to establish that publication should not be allowed. In the usual case, this means showing that success is more likely than not. The court must also balance the claimant’s interests against the Article 10 rights of those entitled to receive the information, the interests of affected persons, the public interest in effective regulation and open justice. Relief is exceptional and requires pressing grounds or the most compelling reasons. The existence of arguable public-law grounds and possible commercial harm will not suffice where publication facilitates further representations and the countervailing public and third-party interests carry greater weight.

South East Water Limited challenged Ofwat’s proposed enforcement order and financial penalty arising from an investigation into its compliance with statutory duties and licence Condition P12. It sought an interim injunction preventing publication of Ofwat’s proposed decision pending determination of the judicial review. South East Water relied on alleged jurisdictional errors, predetermination, procedural unfairness, failure to take relevant considerations into account, absence of an enforcement policy and breach of property rights. The central issue was whether the statutory and Convention-based threshold for restraining publication had been met and, if so, whether the balance of convenience favoured relief.

1. Application refused. The court declined to restrain Ofwat from publishing its proposed decision.
2. Because publication by a public authority engages the public’s Article 10 right to receive information, section 12(3) of the Human Rights Act 1998 required South East Water to show that it was likely to establish at trial that publication should not be allowed. Given the short interim hearing, likely meant more likely than not. The case therefore required an assessment of the apparent merits as well as the balance of convenience.
3. The proposed grounds did not make out a compelling case. The suggested causal link between breach of section 37 and specific Part III duties had no obvious statutory basis, and the proposed decision provisionally identified specific breaches. The allegations of predetermination were weak: decision-makers may form provisional views during lengthy investigations, provided they remain open to changing their minds. A further confidential opportunity to comment was not obviously required where a minded-to process had already occurred and publication would trigger further representations.
4. There was no obvious failure to take relevant considerations into account. Ofwat had referred to its general duties, and the decision whether to permit a late expert report was not obviously irrational. Nor was there a general duty to formulate an enforcement policy. Any proportionality challenge under A1P1 would face the generous margin accorded to an expert regulator.
5. The balance of convenience strongly favoured refusal. Publication might cause South East Water harm, but lenders, investors, customers and the public interest could suffer greater harm if material information were withheld. Delay could postpone remedial action affecting 286,645 customers, distort credit assessments and undermine open justice. The evidence did not establish the pressing grounds or most compelling reasons required for this exceptional relief.

This was a first-instance judicial review application for interim relief. The judgment states that South East Water confirmed to the Court of Appeal on 3 March 2026 that it did not intend to seek permission to appeal.