R v Secretary of State for Education and Science, ex parte Avon County Council (no 2)

JurisdictionEngland & Wales
Judgment Date15 May 1990
Judgment citation (vLex)[1990] EWCA Civ J0515-9
Docket Number90/0465
CourtCourt of Appeal (Civil Division)
Date15 May 1990
Secretary of State for Education and Science
Ex Parte Avon County Council

[1990] EWCA Civ J0515-9


Lord Justice Glidewell

Lord Justice Taylor

Sir George Waller







Royal Courts of Justice

MISS ELIZABETH APPLEBY Q.C. and MISS GENEVRA CAWS (instructed by Messrs Sharpe Pritchard, agents for Messrs. B. D. Smith & Co., Bristol) appeared for the Appellant.

MISS P. L. BAXENDALE (instructed by The Treasury Solicitor) appeared for the Respondent.


On 9th April 1990 the appellant, Avon


County Council, which is the Education Authority for the County of Avon, applied for leave to move for judicial review of:


1. Three decisions contained in letters dated 30th March 1990 from the Secretary of State for Education and Science to

  • (i) the Director of Education of Avon County Council, rejecting proposals for the reorganisation of secondary education in Bath;

  • (ii) the Chairman of the Governors of St. Mark's C.E. Secondary School rejecting proposals for a significant change in its character;

  • (iii) the Chairman of the Governors of Beechen Cliff School approving its acquisition of grant-maintained status.


2. The Beechen Cliff School Grant Maintained Status Transitional Provisions Order made by the Secretary of State for Education and Science on 20th March 1990. The relief sought was expressed as:

  • (i) An order of certiorari to quash each of those decisions.

  • (ii) An order of certiorari to quash the Transitional Provisions Order.

  • (iii) A direction that the grant of leave to apply for judicial review should operate as a stay upon the implementation of the proposals for Beechen Cliff School to become grant maintained until determination of the application.

  • (iv) A direction that the hearing of the application be considered for expedition.


On 10th April 1990 Kennedy J. heard oral argument in support of the application. He decided to grant leave to move, and then heard argument on the County Council's application for a stay. He decided that he had no jurisdiction to grant a stay of the Secretary of State's decisions in the circumstances of this case.


The County Council immediately appealed to this court. We heard the appeal on 11th April 1990. Like Kennedy J., we considered first whether the court had jurisdiction to grant a stay of the Secretary of State's decision. We decided that the court has such jurisdiction.


However, when it then became clear to us that an early hearing of the substantive application could be arranged, we considered that a stay was unnecessary, and declined to grant a stay.


I now give my reasons for my conclusion that the court has power to grant a stay of the Secretary of State's decision.


Miss Appleby, for the County Council, submits that the power to grant a stay is expressly given in R.S.C. Order 53 Rule 3(10). This provides:

"Where leave to apply for judicial review is granted, then:

  • (a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders;

  • (b) if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ."


The primary relief sought is an order of certiorari. Miss Appleby submits that the phrase "a stay of the proceedings", though at first sight applicable to proceedings in a court, must have a wider application. Today, many applications for judicial review are for orders of certiorari to quash decisions of decision-making bodies other than courts, including government ministers, local authorities and other bodies whose decisions are susceptible to judicial review. Thus the phrase "a stay of the proceedings" in relation to such bodies must mean "a stay of the process by which the decision challenged has been reached, including the decision itself". Miss Baxendale, for the Secretary of State, argues that Miss Appleby's submissions give to the word "proceedings" a meaning it does not bear. The power in Order 53 rule 3(10)(a) to grant a stay of proceedings relates only to proceedings of a court.


There are two recent authorities on this subject which are relevant. In Regina v. Licensing Authority established under Medicines Act 1968, ex parte Smith Kline & French Laboratories Ltd. (No. 2) [1989] 2 W.L.R. 378 the Licensing Authority proposed to use confidential information supplied by Smith Kline & French with its application for a product licence in order to evaluate similar applications from competing companies. Smith Kline & French applied for a declaration, an order of prohibition and an injunction, to prevent such use. The judge at first instance granted a declaration to that effect, but the Court of Appeal reversed his decision. Smith Kline & French then applied for an interim injunction restraining the use of the information, pending the determination of their petition for leave to appeal to the House of Lords.


This court dismissed the application. However, the majority of the court (Woolf and Taylor L.J.J.) were of the opinion that the court had power to grant both declaratory and injunctive relief against officers of the Crown. Moreover, all the members of the court, including Dillon L.J., were of the view that the phrase "the proceedings" in R.S.C. Order 53 rule 3(10)(a) should be construed widely, so that in an appropriate case a stay could be ordered under that rule against the Crown. See Dillon L.J. at p. 388A-C, Woolf L.J. at p. 393E-F and Taylor L.J. at p. 395F-G. Dillon L.J., however, took the view that the order sought in that case was of the nature of an injunction, not a stay, and that there is no power to grant an injunction against officers of the Crown.


Dillon L.J.'s view regarding the limitation on the court's powers to grant injunctions was upheld in Factortame Ltd. and others v. Secretary of State for Transport [1989] 2 W.L.R. 997, and the decision of the majority in Smith Kline & French on this issue was thus overruled. The reasoning in the speech of Lord Bridge, with which the other members of the House all agreed, can be summarised as follows:

  • (i)...

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