On 5 March Ofwat announced its intention to fine South East Water £22m for repeated supply failures.
It transpires that South East Water has applied for permission for judicial review of the proposal, and also that it sought an injunction to restrain Ofwat from publishing its announcement, pending the outcome of the JR application.
Mr Justice Chamberlain’s dismissal of the application for the interim injunction strikes me as an important one in relation to the principle of open justice. The judgment notes that, although Ofwat, as a public authority, would not generally enjoy the benefit of Convention rights, Article 10 confers on members of the public not just the right to freedom of expression (ie to impart information) but also to receive information which a public authority wishes to publish. An order which prevented Ofwat from doing so would interfere with those Article 10 rights. By s12(3) of the Human Rights Act 1998, the court cannot make such an order on an interim basis unless it is “satisfied that the applicant is likely to establish that publication should not be allowed”.
On the facts, the judge was very far from satisfied. The allegations of public law unfairness and predetermination on the part of Ofwat appeared to have strong potential defences. And the argument that publication would have negative effects on South East Water’s credit rating, although it had some merit, had to be balanced against three other types of harm which would be caused in the scenario where interim relief was granted but the claim later failed: one harm would be to potential investors; one harm would be to South East Water’s customers, many of whom had already suffered from repeated supply issues, and who would be delayed in hearing about the proposed enforcement action by at least four months; and the final harm would be that the substantive JR proceedings would have to proceed in private, thus denying any other party (e.g. a group representing customers or consumers) to apply to file evidence or make submissions as an intervenor – that would be a “very substantial derogation from the principle of open justice, which itself would give rise to significant damage to the public interest”.
For all these reasons, interim relief was refused. As South East Water confirmed it did not intend to appeal, the notice of intent was published, as was the judgment.
The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.
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