No power to grant injunction against Executive Agency in civil proceedings

15/11/22

In Quest Vocational Training v Secretary of State for Education, an apprenticeship training provider applied for an interim injunction in the King’s Bench Division restraining the Secretary of State for Education acting through the Education and Skills Funding Agency (“ESFA”) from terminating on notice and without cause two apprenticeship training contracts between the Claimant and the Secretary of State. The first, and most significant of those contracts was due to terminate on 13 November 2022. The second contract is due to terminate in mid-January 2023.

In a judgment read out yesterday and this morning, Mr Justice Freedman dismissed the application. He accepted the Department for Education’s submission that the High Court had no jurisdiction to grant an injunction or specific performance by virtue of section 21 of the Crown Proceedings Act 1947. He rejected the Claimant’s submission that the status of ESFA as an executive agency of the Department for Education took the case outside the scope of the statutory prohibition on the grant of injunctions against the Crown in civil proceedings.

The Judge considered whether to grant the Claimant an interim declaration which it had sought in the alternative to its application for an interim injunction. He considered that it would be necessary for the Claimant’s case to have a high degree of assurance of success at trial, the threshold which he also considered would have applied had the Court had jurisdiction to grant an interim injunction against the Crown.

The Judge held that, as things stood, the Claimant’s case did not have the necessary degree of assurance of success at trial. In particular, he considered that the contracts did not appear to impose any fetter on the Department’s contractual powers to terminate on notice without cause, and that on the basis of the law as it appeared to stand at the present time, a term would not be implied into the contracts to require that a power to terminate without cause on notice must be exercised reasonably or in good faith.

Mr Justice Freedman therefore dismissed both the applications for an interim injunction and for an interim declaration.