Compelling Evidence Of Harm Needed When Seeking To Restrain Publication Of Public Authority Decisions

Two recent decisions confirm the courts’ reluctance to interfere with regulators’ powers of publication in the absence of clear and compelling evidence of harm. In Euro Car Parks Limited v Competition & Markets Authority [2026] EWHC 471 (KB), a car park operator sought an interim injunction preventing the Competition and Markets Authority (CMA) from publishing a Final Enforcement Notice (FEN) without redacting identifying information. In R (South East Water Limited v Water Services Regulation Authority) [2026] EWHC 479 (Admin), a water company sought interim relief to prevent Ofwat from publishing a proposed enforcement decision pending judicial review. Both applications were refused by the High Court.

Key points

• Public authorities publishing reports or decisions in accordance with their functions serves an important public interest and may engage the right to receive information under Article 10 ECHR
• In such cases the normal test for an interim injunction is supplemented, requiring an applicant to satisfy the court that it is “likely to establish that publication should not be allowed” 
• The courts impose a strict standard (described as "a high hurdle", "pressing grounds" or "the most compelling reasons") for the grant of interim relief to restrain publication of a report or decision by a public authority
• Given this high hurdle it is important for applicants for interim relief to have clear, compelling and well-substantiated evidence of harm

Background 

Euro Car Parks Limited (ECP)

The CMA served an Information Notice on ECP in July 2025 requiring information for a consumer protection investigation. ECP failed to respond by the deadline, claiming it believed the email was a phishing attempt. The CMA issued a FEN imposing a fixed penalty of £473,000. ECP filed a statutory appeal against the FEN and an application to withhold its identity in the proceedings. The CMA then indicated its intention to publish the FEN, so ECP applied for an urgent interim injunction to prevent publication in unredacted form.

ECP relied on the risk of harm to its directors and their families, particularly the managing director who gave evidence of previous threats and harassment. It argued that damages could not provide an adequate remedy for the irreversible loss of anonymity and consequent distress, anxiety and fear that would be caused to the relevant people. 

South East Water Ltd (SEW)

SEW sought an interim injunction to prevent Ofwat from publishing a proposed enforcement decision concerning alleged breaches of the Water Industry Act 1991 and its licence conditions. SEW argued that publication would cause irreversible harm, threatening its credit rating and ability to borrow and retain existing investment, which in turn would impact its ability to meet its regulatory obligations. 

Judgments 

The courts impose a strict standard (described as "a high hurdle", "pressing grounds" or "the most compelling reasons") for the grant of interim relief to restrain publication of a report or decision by a public authority. Both judgments confirmed that publication of decisions or reports by public authorities in accordance with their functions, such as regulatory decisions, serves a significant public interest since those functions will often be for the benefit of a particular class e.g. consumers, and publication goes to the public interests of both deterrence and transparency. Restraining publication therefore engages the right under Article 10 of the European Convention on Human Rights (ECHR) to receive information. 

Consequently, the usual test for interim relief from American Cyanamid Co v Ethicon Ltd [1975] AC 396 is modified in applications to restrain publication of such decisions by section 12 of the Human Rights Act 1998 (HRA). The applicant must satisfy the court that it is “likely to establish that publication should not be allowed”(s. 12(3) HRA).In most cases, including for both ECP and SEW, this means the applicant must show they will probably (“more likely than not”) succeed at trial (Cream Holdings v Banerjee & Others [2005] 1 AC 253at [22]). This standard may be lowered where "the consequences of publication would be very severe” (R (Barking and Dagenham College) v Office for Students [2019] EWHC 2667 (Admin)).

If Article 8 ECHR (the right to privacy) is also engaged, the courts must balance both rights in the particular circumstances. In this balancing exercise, the right of the public to receive a report from a public body "must carry very substantial weight” and “will generally prevail” such that injunctions to restrain publication “require exceptional circumstances”. The court in ECP held that “harm to a person's reputation (even involving seriously defamatory statements) would not provide sufficiently exceptional circumstances", noting that reputational damage can be mitigated by publicising the fact that a decision is being appealed, which the court would expect a fair-minded observer to take into account. 

Balancing harm

The court had to balance the harm that would result from either granting or refusing the interim relief before making a decision and considered evidence from the applicants on this issue. However, in both cases the court took issue with the strength of the evidence. 

SEW relied largely on its CFO's predictions of investors’ and rating agencies’ reactions. The court accepted that some harm may be caused to SEW but not that it would be “grave” or “irreparable”. In addition, SEW’s evidence was described as incoherent, and the court found the idea of relief designed to keep certain parties in the dark as “objectionable in principle”. 

ECP failed to exhibit corroborative evidence, despite concerns about weakness of evidence being raised previously and ECP having an opportunity to provide this information. This meant the court had no basis for thinking that further time or fuller consideration would materially change the position. References to threats and press intimidation "over the years" and "in the past", without further explanation, were insufficient to persuade the court that FEN publication would lead to the anticipated damage. 

It was also relevant that ECP’s application sought relief (redaction of the FEN) that was not within the court’s powers in the specific substantive statutory appeal - ECP had threatened but not actually brought a judicial review.

Both applicants unsuccessfully submitted that the harm from granting the interim injunction would amount to a short postponement. In SEW, the court considered the cumulative effect of delay in the process on SEW’s 286,645 affected customers, disagreeing that four months was "insignificant”.

The corollary of restraining publication would be that proceedings would have to be held in private for the injunction to have any effect. This very serious departure from the principle of open justice, which itself significantly damages the public interest, is only justified in “wholly exceptional”circumstances, where strictly necessary. This was an important factor in the court’s weighing of the potential harm on both sides. 

Given the significant public interests involved, the merits of the claims and the weaknesses in evidence, neither applicant was able to satisfy the high hurdle to restrain publication of a regulatory report of this kind. 

Comment

These cases remind us of the added dimension of s. 12 HRA when seeking to restrain publication of a decision or report by a public authority in accordance with its functions, and reinforce that the threshold for doing so is extremely high. In those circumstances, it is vital that applicants focus on evidencing the harm that would be caused by publication in a clear, thorough and convincing manner. 

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