British Standards Institution v RRR Manufacturing Pty Ltd, R (on the application of)

In paragraph 14, the Judge said that ‘The principles governing the grant of interim relief in judicial review proceedings are those in American Cyanamid Co v Ethicon Limited [1975] AC 396, modified as appropriate for public law cases’. She referred to the threshold test concerning the legal merits of the claim, and said that, consistently with R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin) (‘the Medical Justice case’), the test was higher than the arguability test which applies on an application for permission to apply for judicial review.

The court should then consider whether damages would be an adequate remedy for either side if interim relief were granted or refused. Damages would ‘rarely be an adequate remedy in the context of judicial review claims’ (paragraph 15). The next step for the court was to consider whether the ‘balance of convenience’ favoured the grant of an injunction or not. The court had to balance ‘the harm to the claimant and to any public interest which would be caused if interim relief is not granted and the claim later succeeds, against the harm which would be caused to the defendant, any third party and the public interest if interim relief is granted’ and the claim later fails (paragraph 16).

In paragraph 17, she added that ‘It is well established that the court will have regard to the principle that it is in the public interest that a decision of a public body should be respected unless or until it is set aside. The strength or weakness of the claim is likely to be a significant factor in assessing the balance of convenience’.

She summarised RRR’s four grounds of claim in paragraph 18. They were illegality (by reference to paragraphs 72-79 of the statement of facts and grounds (‘SFG’)), procedural unfairness (paragraphs 80-87 of the SFG), irrationality (paragraphs 88-91 of the SFG), and fettering of discretion (paragraphs 92-93 of the SFG).

In paragraph 19, the Judge recorded a concession by BSI, in the light of the remarks of Chamberlain J (see paragraph 18, above) that RRR had ‘passed the merits threshold, applying the American Cyanamid case’ but that it submitted, nevertheless, that the claim was not a strong one, and reserved its position to argue, in due course, that permission to apply for judicial review should be refused. Mr Johnston explained to us during the hearing of this application that BSI had not lodged its acknowledgement of service by the date of the hearing of the application for interim relief.

The Judge then said (paragraph 20) that she had carefully considered BSI’s evidence, the submissions in its skeleton argument and its response to RRR’s criticisms in correspondence. She added, ‘Whilst some of [RRR’s] points are stronger than others, I am satisfied that [RRR] has demonstrated that there is a serious question to be tried.’ Damages would not be an adequate remedy for either party. ‘Therefore, I turn to consider where the balance of convenience lies’.

In paragraph 21, she accepted that RRR would suffer ‘considerable commercial and reputational harm, both in the UK and in other countries, if its certificate is suspended, even if only up to the date of trial.’ She accepted that news of the suspension would spread quickly and that other regulators would be likely to start their own investigations as a result. The device is RRR’s only product ‘and so its entire business could be threatened’. If, as RRR claimed, the device is a ‘life-saving innovative product, it is not in the public interest to put it out of business’.

If BSI were restrained from suspending the certificate, it would be ‘deprived of its power to prevent [RRR] from operating in the UK’. She acknowledged that ‘public health and safety is obviously a paramount concern’. But, she added, ‘there is no evidence that the device is a current risk on health and safety grounds’. She referred to paragraph 8 of Mr Tunbridge’s witness statement for RRR. While he described ‘fundamental and overarching concerns for public safety when using the device’, ‘BSI has not identified direct evidence that the device is unsafe, and it was content to allow the product to continue to be marketed during the implementation of its CAP requirements. The device has previously been certified and approved by BSI and it is certified and approved in other jurisdictions as well. Certification denotes that the requirements of safety and efficacy have been met’ (paragraph 22).

She continued, in paragraph 23, that ‘if a risk to public health and safety were to be identified, the MHRA has a suite of powers at its disposal to protect the public’. She listed some of those. The MHRA could also utter warnings about devices. It had said that if an injunction were granted, it would keep the matter ‘under careful review’. It was suggested at the hearing that the MHRA might even take action because an injunction had been granted. ‘In my view that would not be a proper exercise of its powers’.

She concluded, in paragraph 24, that the balance of convenience favoured keeping the status quo by restraining BSI from suspending or withdrawing the certificate until after a decision on the claim. She foreshadowed that she would consider the renewal of the certificate shortly.

Mr Tunbridge had helpfully told the court in his first witness statement that the existing certificate was, in any event, due to expire on 26 May 2024. Renewal was not automatic. The renewal of the certificate would have to be reviewed, and the device would have to be assessed again. In his second witness statement, Mr Tunbridge had said that BSI would not be able to renew the certificate ‘in the light of the identified non-conformities which remain unaddressed’. He had also said, in his first witness statement, that he had assumed that RRR ‘may also intend to seek a mandatory order compelling the BSI to renew the certificate’ (paragraph 26).

In paragraph 27 the Judge expressed her view that ‘it would defeat the object of the court’s order if [RRR’s] certificate was not renewed because of the decisions which are under challenge and before the court has had an opportunity to rule on their lawfulness’. She was ‘[t]herefore willing to extend the scope of the injunction to require [BSI] to maintain the certification in place until the determination of this claim’. She would hear submissions from BSI on the precise mechanism in due course.

She confirmed in paragraph 28 that the hearing was not listed as a hearing of the application for permission to apply for judicial review as neither BSI nor the MHRA has filed their summary grounds of resistance. She was not, therefore, able to consider the application for permission. She would give case management directions. Both the parties considered that it was an appropriate case for a ‘rolled-up’ hearing of the application for permission to apply for judicial review and, if permission were granted, of the application for judicial review (paragraph 29).

There is no transcript of the Judge’s decision on costs, but there is an agreed note of what she said. She is recorded as saying ‘D has forced C to come to court to obtain interim relief to which I found it is entitled. D could have agreed to interim relief of this nature and must take the costs consequences. RRR claimed to have paid £30,000 for work on documents and for attending the hearing. The Judge described the costs as being ‘incredibly high figures’. She ordered BSI to pay the costs but that the costs should be the subject of a detailed assessment.

The Judge refused permission to appeal. She did not think that the appeal had reasonable prospects of success or that there was a compelling reason for it to be heard. Her view was that it was ‘significant’ that BSI had conceded in its skeleton argument, on the basis of Chamberlain J’s conclusion that RRR’s grounds of challenge disclosed ‘a prima facie case that the decision was unlawful, sufficient to call for an answer’ that RRR had ‘passed the merits threshold, for the purposes of the first stage of the test in American Cyanamid…’. She added that, in the light of that concession, she had been able to ‘deal with the grounds relatively briefly. Whilst accepting that some of the grounds were stronger than others, I was satisfied that there was a serious question to be tried. The contentious issue was the balance of convenience’. She had weighed ‘the competing considerations’ and had concluded, in the exercise of her discretion, that the balance of convenience lay ‘in favour of preserving the status quo by the grant of interim relief…’ She had made the mandatory order requiring BSI to renew the certificate before it expired because the expiry of the certificate would ‘defeat the objective’ of the interim relief if the certificate were not renewed. BSI had not been able at the hearing, ‘to confirm how it could best give effect to the Court’s intention to preserve the status quo…’

BSI’s case on this appeal was that several principles governing the grant of interim relief against a public body in a case were not in dispute before the Judge. That seems to be confirmed by paragraph 13 of RRR’s skeleton argument for this appeal, which refers expressly to R (Governing Body of X) v Office for Standards in Education [2020] EWCA Civ 594; [2020] EMLR 22 (paragraph 66, per Lindblom LJ) (‘the OFSTED case’).

BSI submitted that there are three initial questions.

Three factors in particular are significant in the assessment of balance of convenience when a public authority exercises powers in a health-related context.

The court will be slow to grant a mandatory order to compel a public authority to act in a way which it considers to be contrary to public interest. A strong prima facie case must be shown: De Falco v Crawley Borough Council [1980] QB (CA) 460 at page 481. This is not part of the assessment of balance of convenience, but is a threshold test for the grant of a mandatory order against a public authority.

A court will not interfere with the exercise of the court’s discretion to grant interim relief unless the judge has erred in law, misunderstood the evidence, or, occasionally, even if no express error can be detected, if the ‘decision to grant or refuse the injunction is so aberrant that it must be set aside on the ground that no reasonable judge regardful of his duty to act judicially could have reached it’ (Hadmor Productions v Hamilton [1983] AC 191 at page 220B-220 C-E, per Lord Diplock).

The first ground of appeal is that the Judge misunderstood both the burden of proof under the relevant regulations, and what it was that has to be proved. She was wrong to decide that ‘there is no evidence that the device is a current risk on health and safety grounds’. That was an error of law. First, BSI does not have to satisfy the court that the device is unsafe; RRR, rather, has to satisfy BSI that the device is safe. Mr Johnston relied on regulations 8 and 9(2) of the relevant regulations and Annex X (see paragraphs 27, 28 and 36, above). He submitted that, at every relevant stage, the manufacturer must show that the essential requirements are met. If it cannot do so, that itself is a safety concern. BSI will not authorise the sale of a device unless the manufacturer has shown that the device works and is safe ‘(in the sense that all risks have been identified and minimised)’. BSI does not ask whether a device is unsafe; it asks whether the manufacturer has shown that it has met all the essential requirements. Had the Judge understood the burden of proof correctly, and what had to be shown, she would have reached the opposite conclusion on interim relief.

The subsidiary points on which the Judge relied do not remedy these linked errors. First, BSI had not said that it would allow the device to be sold for a further 90 days. It had said, instead, that if RRR provides the CAPs for which BSI has asked, it might allow RRR to sell the device. BSI has not made any decision about this, because RRR has refused to provide CAPs which would address the disputed issues.

Second, the fact that BSI had certified the device in the past is not material, or barely material. The original certificate was the result of a limited review because the device had been certified in Germany. BSI then did a detailed file review when the MHRA identified serious concerns. BSI has now done a full review of the technical file and has decided that there is not enough clinical evidence to show that the device is effective and safe, or that it is clinically equivalent to other devices. The earlier certificate is, in effect, water under the bridge. The Judge overstated the significance of the earlier certificate. It does not show that the relevant requirements are met. The fact that the device is certified elsewhere is also irrelevant. RRR’s case rests on the asserted equivalence of the device to another defibrillator which is on the market. That is something which must be shown by evidence. That certification, if relevant to the balance of convenience, points against the grant of an injunction, as it would enable RRR to sell the device elsewhere.

A speedy trial has been ordered, and it may well be listed for June. If BSI’s decisions turn out to have been unlawful, RRR will only be prevented from selling the device in the United Kingdom for about two months. RRR could market the device under the CE certificate, unless the MHRA takes any steps in that regard, or RRR could apply to another approved body for a certificate. BSI’s decisions will have a commercial effect on RRR, but if RRR is right, and those decisions are unlawful, it should be easy for RRR to dispel any doubts about the device which other regulators might have as a result of the decisions.

The Judge was also wrong to hold that the public interest would be damaged if ‘a life-saving innovative product’ were lost. The market in such devices is very competitive and there are other portable defibrillators on the market, including the device to which RRR claimed that the device is equivalent (the Philips HeartStart HS1). I add here that the MHRA agreed with that proposition at the hearing of this appeal.

Ground 2 is that the Judge was wrong to grant a mandatory injunction, for four reasons. First, the principle that a public authority should not be restrained from discharging its functions in good faith applies a fortiori to a mandatory order which requires a public authority to act in a way which it considers unsafe and contrary to the public interest. Second, the Judge did not find that RRR had a strong prima facie case. Third, the harm which RRR would suffer would be considerably less if its certificate is not renewed. Fourth, the mandatory order puts RRR in a better position than it would have been in without the litigation. It also puts BSI in an invidious position, because it forces BSI to renew the certificate when it is not currently satisfied that the device is safe.

The third ground of appeal challenges the order for costs. The order pre-empted the decision on the lawfulness of the BSI’s decisions. RRR has not yet got all the relief it claims in the application for judicial review. The Judge should have reserved the costs of the interim application until the outcome of the claim was known. BSI relies on M v Croydon London Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 2607 (‘M v Croydon’) and R (Naureen) v Salford City Council [2012] EWCA Civ 1795; [2013] 2 Costs LR 257) (‘Naureen’).

RRR submitted that BSI’s appeal was an attempt to have ‘the proverbial “second bite of the cherry”’. The Judge did not err in law and there was simply a disagreement about where the balance of convenience lay. The need to show a ‘strong prima facie case’ is not a gateway test for the grant of interim relief: ‘…as this case illustrates, where the strength of the case is considered within the [balance of convenience], adding a gateway for mandatory relief adds nothing to the overall assessment’ (skeleton argument, paragraph 15). RRR nevertheless accepted (skeleton argument, paragraph 22) that a judge should assess whether there is a ‘strong prima facie case’ in evaluating the balance of convenience, not as a ‘condition precedent’ or ‘gateway’ but when considering what relief to give, including mandatory relief.

RRR submitted that De Falco had been doubted in some first instance decisions. Lord Hoffmann said in National Commercial Bank Jamaica Limited v Olint Corporation Limited [2009] UKPC 16; [2009] 1 WLR 1405 that when a court considers the balance of convenience an attempt to distinguish between prohibitive and mandatory injunctions is ‘barren’: although ‘the features which ordinarily justify describing an injunction as mandatory are often more likely to cause irremediable prejudice than’ cases in which a defendant is stopped from doing something (paragraphs 19-21).

What is now the first ground of appeal, RRR argued, is based on a selective approach. It is an over-simplification of the claim and was rightly dismissed by the Judge. BSI had certified the device in 2022 and had unreasonably changed its position in 2024. It did not give RRR a fair opportunity to address it on the issue. Ground 1 is a disagreement with the Judge’s assessment of the balance of convenience. It is factually accurate to say that BSI had not found any evidence that the device is unsafe. In any event, if there were any safety concerns, the Judge had rightly noted that they could be addressed by the MHRA.

Mr Heppinstall nevertheless accepted in oral argument that a manufacturer could only get a certificate if it met the obligations described in regulation 13(3) of the relevant regulations (see paragraph 29, above). He also submitted, by reference to Annex I of the relevant regulations, that the ‘central test is whether there is a positive risk/benefit balance’. It is never possible to say that a device is ‘safe’ or ‘unsafe’. Section 6.a, which requires a clinical evaluation in accordance with Annex X is ‘central’ to the dispute (see paragraphs 32-33, above). He accepted that if RRR made a claim under Annex I, that claim had to be true.

BSI had assumed that the device was equivalent to the Philips HeartStart HS1 and had then decided that it was not equivalent. The moment it was not equivalent, RRR had to ‘reinvent the wheel’. It had relied on the data for the Philips HeartStart HS1 and now it had to provide its own data. The device was clinically equivalent because it generates the same clinically equivalent waveform as the rest of the devices on the market. The significant factor is the current generated by the device. The reason for certification by equivalence was to avoid testing the same product over and over again. The device generates the same clinically significant peak to peak current as the Philips HeartStart HS1. The market response to the loss of the certificate would be very significant.

The Judge was not there to decide whether or not RRR complied with the regulatory requirements, but simply to apply the test in American Cyanamid. That involves the exercise of an equitable jurisdiction. If the Judge had concentrated on the legal merits, she would have fettered her wide equitable jurisdiction. RRR’s submissions showed a ‘category error’. Mr Heppinstall appeared to accept that the Judge had not assessed the strength of RRR’s legal argument when considering the balance of convenience. His response was that that was not an error of law and the Judge could not be ‘hide-bound’ by the legal regime or by one concept of public safety when considering balance of convenience. ‘American Cyanamid cannot be that narrow’. If BSI was right, public safety would always be a trump card, even when the process, as here, was unlawful. RRR accepted that the strength of the claim is relevant to the balance of convenience. Mr Heppinstall also accepted that the Judge had not gone further than asking whether there was a serious issue to be tried. She had, in any event, accepted his submission that the device was ‘life-saving’. This is not quite right, as the last sentence of paragraph 21 of the judgment is qualified by the phrase ‘if, as Mr Heppinstall submits’ (see paragraph 43, above).

He accepted that the public interest was relevant, and that if there is a ‘weighty public interest’ that is a ‘trump card’. If there was evidence that the device ‘kept electrocuting people, I would not be here’. RRR’s ‘equivalence stool had been kicked over and it does not have the clinical data’, although that was ‘on its way’. He used the phrase ‘equivalence stool’ more than once in his submissions.

The Judge was also entitled to make the mandatory order. Mr Heppinstall nevertheless accepted that the grant of what was, in effect, a mandatory quia timet injunction was a completely new step. It was ‘utterly unreal’ to suppose that RRR could ‘re-create the clinical evidence’ in a short time. It was wrong to say that RRR had not supplied a CAP, as RRR had provided CAPs ‘on some things’. RRR’s preference was a confidential arbitration. Equivalence is ‘designed’ to get innovative products on the market while the manufacturer gets data. The purpose of the mandatory injunction was to support the prohibitive injunction. Without the mandatory injunction, the prohibitive injunction would be in vain. It was ‘novel but appropriate’.

His submission on ground 3 was that costs generally follow the event. Decisions about costs are discretionary. The Judge was right to order BSI to pay the costs of the application for the reasons which she gave. Mr Heppinstall accepted, nevertheless, that the order was an ‘unusual exercise of discretion’.

By the date of the hearing of the application for interim relief, the MHRA had not yet exercised any of its relevant powers. It had been keeping the device under ‘active review’. By the time of the appeal, the MHRA had ‘identified potential safety and performance issues with [the device]’. It had written to RRR on 9 April 2024 to ask it voluntarily to suspend sales of the device, while the MHRA considered those questions. It invited RRR to provide it with ‘any data, relevant technical information, or interim clinical investigation data’ on which it wanted to rely. In its skeleton argument, the MHRA described RRR’s response to its letter of 9 April as ‘ill-tempered’, for the reasons given in paragraph 11 of that skeleton argument. It is not necessary for me to describe those reasons in this judgment. RRR did not agree voluntarily to suspend sales of the device. The MHRA’s position is that it will keep the device under review.

I have already indicated that I would give BSI permission to appeal. All the grounds of appeal are arguable.

There are three issues on this appeal.

Mr Heppinstall referred repeatedly during his submission to the court’s equitable jurisdiction to grant an injunction. When the court grants an injunction in the course of an application for judicial review, it does not exercise an equitable jurisdiction. The court’s jurisdiction in judicial review is derived from its powers in relation to the prerogative writs. It is now found in section 31 of the Senior Courts Act 1981 (‘the 1981 Act’). It is true that, when considering whether or not to grant interim relief in an application for judicial review, the court applies the principles in American Cyanamid by analogy. That fact, does not, by a form of reverse logic, mean that when the court does so, it is exercising a free-standing equitable jurisdiction. It is exercising the powers described in section 31. It applies private law principles to that exercise by analogy.

I therefore reject Mr Heppinstall’s submission that the Judge was not ‘hide-bound’ by the legal framework, or by a particular view of public safety. She was required to approach all the relevant questions in the context of the regulatory framework which applies to the sale of medical devices. She had to ask whether there was a serious legal issue to be tried in that framework, and if so, as part of the balance of convenience, she had to consider the strength of RRR’s legal arguments, again, in that framework. Mr Heppinstall was right effectively to accept that the Judge had not answered the second of those questions. In failing to answer that question, she erred in law.

Two cases about the public interest and the balance of convenience were cited to the Judge (see paragraph 54.i., above). I note that the observations in the first case were obiter, as Andrew Baker J refused permission to apply for judicial review. The Monsanto case was a very different case from this case, and the relevant observations might also be considered to have been obiter.

Paragraph 12 of the judgment of Cranston J in the Medical Justice case is more clearly in point, other things being equal, even though it was a challenge to the lawfulness of an executive policy, not a challenge to a particular decision taken in the exercise of powers conferred by secondary legislation. It supports the obvious proposition that the court will not readily restrain a public authority in the exercise of its functions. He clearly distinguished between the gateway to the assessment of the balance of convenience (‘Is there a serious question to be tried?’) and the issues which are relevant to the assessment of that balance. He pointed out that damages are not generally payable in applications for judicial review and that a public authority will not suffer financially if it is stopped from implementing its policy. He said ‘The public interest is strong in permitting the public authority to continue to apply its policy when ex hypothesi it is acting in the public interest’. That interest cannot simply be measured by reference to ‘financial or individual consequences to the parties’. He cited the judgment of Browne LJ in Smith v Inner London Education Authority at [1978] 1 All ER 411 at page 422h. He pointed out that the weight to be given to the public interest in part turns on the juridical basis of the policy, by reference to R v Secretary of State for Transport ex p Factortame [1991] AC 603 at page 674C-D. Lord Goff there referred to ‘apparently authentic law’. He took three factors into account in his decision in that case to grant interim relief (judgment, paragraphs 15 and 16). A challenge to an executive policy is closer to a challenge to a particular decision than it is to a challenge to primary or delegated legislation.

The Judge accepted, in paragraph 17, that this consideration was relevant, but there is no sign that she took it into account in her assessment of balance of convenience, and in this respect, she also erred in law.

Mr Heppinstall accepted that RRR’s claims in support of its application for a certificate had to be true. He was right to do so. I accept Mr Johnston’s submission that the Judge reversed the burden of proof, and wrongly asked whether BSI had shown that the device was ‘a current risk on health and safety grounds’. The question for her, rather, was whether, on the available material, it was arguable to the relevant extent that BSI had erred in law in suspending the certificate because it was no longer satisfied that the device met the essential requirements. That approach is supported by BSI’s power to require relevant information from the manufacturer (regulation 47(2)), and the terms of the duty imposed on BSI by regulation 47(4) (see paragraph 31, above), by the duty imposed on the manufacturer by paragraph 4.2 of Annex V (see paragraph 35, above), and by the obligation imposed by Annex V which I describe in paragraph 36, above.

The Judge’s approach was wrong in law in two respects. First, she gave decisive weight, in paragraph 21, to the commercial damage which the suspension of certificate would inflict on RRR. Second, she balanced, against that damage, BSI’s ‘power to prevent RRR from operating in the UK’. She relied on the lack of direct evidence that the device is unsafe, and on the facts that BSI had allowed the device to be sold while the CAP requirements were being implemented, and that it had previously been certified: ‘Certification denotes that the requirements of safety and efficacy have been met’. She should have put, on the other side of the balance, BSI’s concern, on the basis of a more detailed review, that RRR had not shown that it met the essential requirements. None of the factors on which the Judge actually relied was relevant to the correct balance. In fairness to the Judge, she might have meant was that there was no evidence that the device was actually dangerous. That might have been relevant on different facts, but in this case, I consider that she should have given that factor little or no weight, as there was an alternative device on the market which did meet the regulatory requirements.

It is true that in the Eastside Cheese case (see paragraph 54.iii., above), there was a direct link between cheese sold by the applicant and the admission to hospital of a child suffering from E-coli. It was also a case in which the effect of the measure which was challenged was to ‘paralyse’ the applicant’s business, and to interfere with the business of other companies. I accept, also, that some risks to public health and safety are self-evidently more serious than others, and should be given greater weight in the balance of convenience than others. That case is not authority for the proposition, however, that, if there is commercial damage to a claimant, it is only where a regulator shows that there is a direct and serious risk to health that interim relief will be refused.

The underlying principles which apply to the facts of this case are, first, that great weight must be given to the protection of public health, and, second, in this regulatory framework, that the manufacturer must satisfy the approved body that a device is safe and effective. A third principle is that the court should also give great weight to the assessment of the relevant material by the expert regulator. Mr Heppinstall’s oral submissions on this appeal came close to an acceptance that RRR did not have the material to satisfy BSI that the device was safe and effective.

The Judge’s errors of law mean that this court must exercise the relevant discretion afresh. In short, the commercial damage which RRR feared was obviously outweighed by BSI’s concern that RRR had not provided it with material to satisfy it that the device was safe and effective and that another relevant device was available (see paragraph 82, above). It follows that there should be no interim relief. I also consider, for what it is worth, that had the Judge assessed the balance of convenience correctly, she would have been bound to conclude that it favoured the refusal of interim relief.

There are three sub-issues in ground 2.

Has De Falco v Crawley Borough Council been overruled in later cases?

Mr Heppinstall suggested that the approach in De Falco is no longer good law. He did not identify any case in which it had been overruled, but relied on some obiter observations in one case in this court, first instance decisions in the Administrative Court and two decisions in private law cases. One of the first instance decisions, which concerned a dispute about age assessment, is not relevant, as such disputes are a rare example of disputes in which the Administrative Court (or the Upper Tribunal) makes a factual decision on an application for judicial review, and, as a result, the test for granting permission to apply for judicial review in such cases is different from the test in most public law cases. I do not accept his submission that the cases on which he relied show that De Falco is no longer good law.

What are the court’s powers when it quashes a decision?

The position at common law, broadly, was that if the court quashed a decision, it would remit the case to the decision-maker for the decision-maker to reconsider the case, even when the answer was obvious (Barnet London Borough Council ex p Shah [1983] 2 AC 309). Parliament has now somewhat changed that position. Section 31(5)(b) of the 1981 Act gives the court a limited power, when it makes a quashing order, to substitute its own view for that of the decision maker. The court may only exercise that power, however, when the quashed decision is that of a court or tribunal, and, without the error, the court or tribunal could only have reached one decision (section 31(5A)). On conventional principles of statutory construction, that express limitation means that it is not open to a court, when it makes its decision on the merits of an application for judicial review in cases in which the defendant is not a court or tribunal, to quash a decision and substitute its own view for that of the decision-maker.

Did the Judge err in law in making a mandatory order?

Neither counsel could think of a case in which a court has, without deciding whether or not a public authority has acted unlawfully in relation to a decision which is challenged in existing proceedings, required a public authority to exercise a power on a future occasion in a particular way. As I have just explained, even when it has quashed a decision because it is unlawful, a court has limited powers to usurp the powers of a public authority by making a particular decision, which, in normal circumstances, it would be for the public authority to make in the future, after remittal by the court. A fortiori, a court has no such power when it has not even decided that the decision which is under challenge is unlawful. In this case, no future decision had been made, and no decision about its lawfulness could therefore be made. The Judge erred in law in making the mandatory order in this case. What is more, there are no circumstances in which such an order would be lawful.

When the Judge made the costs order, she did not yet know whether or not RRR would succeed in its challenge to the decisions. The only factor on which she relied was that BSI could have agreed to the application for interim relief and the hearing would then not have been necessary. With the exception of cases which are so urgent that the claimant does not have time to engage with the defendant before applying for interim relief, that is always a factor in applications for interim relief.

In M v Croydon this court rejected an argument that the general approach to costs in judicial review claims and in private law claims was different. The normal rule in judicial review is that a party who obtains the relief he seeks, whether by consent, or after a hearing, is the successful party and is entitled to his costs.

A successful application for interim relief is not, however, to be equated with success overall in an application for judicial review, so that if the claim is later withdrawn without any concession from the defendant, that success is not a reason for ordering the defendant to pay all the costs of the application for judicial review (Naureen, paragraph 44 per Jackson LJ, and see also Shahi v Secretary of State for the Home Department [2021] EWCA Civ 1676; [2021] Costs LR 1397).It is obvious that, on an application for interim relief, the court is not deciding the merits of the claim, and is in no position to assess them. Indeed the Administrative Court sometimes grants interim relief without deciding whether or not the claim is sufficiently arguable for the grant of permission to apply for judicial review (see, for example, Naureen and Shahi). Nor had the Judge in this case decided to give permission to apply for judicial review.

As RRR had not succeeded in the claim overall, the Judge was wrong in principle to order BSI to pay the costs of the interim relief hearing in any event. She should, instead, have reserved those costs until the outcome of the application for judicial review.

For these reasons I would allow the appeal on all three grounds.