Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
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The U.K. High Court denied a request to set aside an injunction obtained by an Islamic school against the publication of a negative report by Ofsted, the U.K.’s schools inspectorate. The school had initiated proceedings for judicial review of the report and obtained an interim injunction preventing publication until the outcome of the substantive application. The Court reasoned that in balancing the convenience between Ofsted’s power to publish and the public interest in the publication of such reports, against the potential damage to the school and the wider community, delaying publication was a temporary inconvenience balanced against the irreparable damage likely to befall to the school if the report was published but later quashed in the substantive proceedings.
The school was a voluntary aided school for boys and girls of ages 4-16 with an Islamic religious ethos. It had a policy of segregating children by sex from an early age which was advertised as part of the school’s admission policy and known to everyone, including parents and Ofsted.
The school had been put under special measures in 2014 as a result of Ofsted’s inspections and reports which had raised concerns regarding the school’s “Leadership, Governance, Teaching and Learning, and Financial Management”. [para. 6]
In December 2014 and March 2015 Ofsted conducted inspections of the school and issued reports which concluded the school was making progress towards the removal of the special measures. Another inspection in December 2015 resulted in a report that concluded, among other things, that the school’s “arrangements for safeguarding are highly effective in creating a safe culture in the school” and that “Safety of pupils is given a very high priority. Pupils know this and confirmed that they feel safe in school and know how to keep themselves safe such as when using the internet. They know the threats posed by extremist views and understand how to keep themselves safe from radicalisation. Pupils’ understanding of British values in increasingly promoted through the curriculum and a range of activities”. None of the reports raised concerns regarding the school’s segregation policy. [para. 11]
As a result of the December 2015 report, the school came out of special measures. However, on June 8, 2016 the school was visited by Her Majesty’s Chief Inspector of schools, Sir Michael Wilshaw who immediately expressed his opposition to the school’s segregation policy and asserted that the school had the traits of a “Trojan Horse school”. This visit triggered another inspection on June 13 and 14, 2016 conducted by a group consisting of four of Her Majesty’s Inspectors and three Ofsted inspectors. [para. 15]
According to witnesses, the June 2016 inspection was conducted in a manner in which “the inspectors appeared to be determined to find evidence to support predetermined views that the school requires special measures”. The inspection started as a Section 8 inspection but, during the course of it, was converted to a Section 5 inspection which happens when there are concerns that safeguarding is not effective or pupils are considered to be at risk in any way. According to a witness, the reason given for the change was “to explore further the choices made with regard to separate lessons and especially separate social times. Specifically to explore the educational value and the link between these decisions and the leadership and management of the school; and the social development of the pupils”. [para. 18]
The report from June 2016’s inspection concluded that the school was inadequate listing the following concerns:
The report was provided to the school under cover of a letter dated July 15, 2016 stating that the report would be published within five working days from the date of the letter, which coincided with the last day of the summer term. On July 19, 2016 the school’s council sent a letter to Ofsted stating its intention to bring Judicial Review proceedings and requesting Ofsted to delay the publication of the report until September 5, 2016. The council explained that they did not want the report published while the school was closed to pupils and staff were on leave, as this would prevent the it from dealing with any tensions in the community resulting from publication of the report. Ofsted replied on July 20, 2016 reaffirming its intention to publish the report on July 22.
Not content with this result, the school obtained an interim order from Wyn Williams J restraining the publication of the report. It also issued Judicial Review proceedings requesting that the report be quashed and Ofsted be prevented from publishing it. On July 27 Ofsted applied to set aside Wyn William J’s interim order. The High Court ruled on this application on August 1, 2016.
Ofsted’s application to set aside Wyn William J’s interim order was heard by Justice Stuart-Smith who had to decide whether maintaining the injunction on the publication of the report was justified.
The Judge began his analysis by reviewing the principles set out by precedent that he considered applicable to the case. First he noted that “a Claimant seeking to restrain publication in a public law injunction case has additional hurdles to overcome over and above those posed in a purely private law case adopting normal American Cyanamid principles”. He also noted that a distinction should be made between the cases in which a public entity has a statutory duty to publish a report and those in which the entity has the power but not the duty to publish. Ofsted fell into the second category. [para. 31]
The judge acknowledged that there was a public interest favoring publication of Ofsted’s report. He referred to R (Birmingham City College) v Ofsted where Burton J had reviewed a number of earlier decisions to extract principles concerning injunctions against public entities. These principles included that the Court would “have less readiness to grant an injunction in favour of one public body against another” also that “the defendant should only be prevented from publishing its opinions in a manner and time that was appropriate on ‘pressing grounds’”, and that “if restraint of the expression of private opinions is justified only in exceptional circumstances, then the grounds for restraining the publication of an adjudication by a public body exercising a quasi-judicial function must be all the more compelling if they are to succeed”. [para. 33]
Based on his review of this precedent the judge identified the following as the elements that need to be taken into account when a court is deciding on whether to restrain allegedly defamatory statements from public law bodies: “the existence of a public duty (or power) to publish; the likelihood that damage caused by publication may be irreparable; and, viewed more generally, the existence or absence of a pressing ground or pressing social need to restrain publication”. [para. 35]
He also identified as a principle “that the apparent strength of the case or the nature of the circumstances which are alleged to underpin the Claimants’ complaint may be brought into account when considering whether or not to grant an injunction in the public law field”. Applying this principle to the case before him he considered that “the arguable existence of bias or other reprehensible behaviour can properly be taken into account when deciding whether or not to grant an injunction restraining publication”. [para. 37]
The judge accepted that there was a very pronounced difference between the report that had been enjoined and the previous reports by Ofsted. However, he said that it could not “be said that a subsequent Ofsted report is unlawful simply because it is inconsistent with a previous one, however stark the inconsistency”. He also acknowledged that the facts of the case were disputed and he was therefore unable to assume that the witness evidence provided by the claimant was correct. Despite this, he considered that there was clear evidence of antagonistic behavior on the part of Her Majesty’s Chief Inspector of Schools during his June 8, 2016 visit to the school. [para. 38]
The judge also noted that, despite Ofsted’s assertion that the school’s sex segregation policy was illegal, the reality was that a number of other mixed schools without an Islamic ethos also had segregation policies. While noting that it was not his place to rule on the legality of the segregation policy he highlighted that “if the degree of segregation practised at the School is illegal, it has been illegal for years and there is no credible evidence or submission before the Court at this stage to explain why successive inspections failed to mention it even though they were critical enough to put the School into special measures at a time when Ofsted must have been sensitised to the issue of segregation in schools with an Islamic ethos”. [para. 43]
While Ofsted claimed the report’s conclusion would have been the same even if the concerns regarding segregation had not been present, the judge noted the reality was that such concerns dominated the report and that a biased mindset determined to find fault would have impacted all aspects of the report. Based on these considerations, the judge concluded that there was an arguable case that “the process leading to the production of the July 2016 report was infected by a pre-determined mindset or prejudice that would be quite alien to the proper and independent inspection process upon which the education system and the public at large rightly depends”. [para. 45]
The judge proceeded to note that the publication of the report could have an “extremely adverse and irreparable” effect on the school. He also acknowledged that publishing the report on the last day of the term would maximize the difficulties for the school in respect of managing the publication’s fallout. While Ofsted submitted that the school could always tell parents that they disagreed with its report, the judge considered that this would do little to mitigate the potential damage. [para. 46]
The judge said he was satisfied that the school’s case went beyond arguability noting that he was “substantially influenced by the evidence that the damage caused by the publication of the report may be widespread and irreparable, at least in the medium term” and that “If the validity of the report is upheld, it will be published (and published soon) and adverse consequences will then follow; but if the report were to be quashed it can readily be foreseen that the consequences of its having been published would be highly regrettable”. [para. 50]
Based on the above, the judge concluded the school had “established a pressing ground and pressing social need in exceptional circumstances” for enjoining the publication of the report. Thus the judge decided to maintain the interim injunction that had been granted by Wyn Williams J until the question of permission to bring the Judicial Review proceedings had been decided. [para. 50]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision prioritized the school’s right to reputation over the public interest in being informed of Ofsted’s findings. However, the decision also establishes that a claimant seeking to enjoin the publication of a report from a public body has to establish “a pressing ground and pressing social need in exceptional circumstances” for preventing publication. This sets a high bar for claimants seeking such injunctions.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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