Reference:  EWHC 1899; (Admin)  EMLR 868
Court: Queen's Bench Division
Judge: Stanley Burnton J
Date of judgment: 26 Aug 2005
Summary: Judicial review - Permission - media and entertainment - Locus - Delay - Wednesbury unreasonableness - s. 105(c) Broadcasting Act 1990
Instructing Solicitors: C in person; Ofcom solicitor; Follett Stock for Atlantic
Ofcom published a statutory advertisement for applications for a license for a second commercial radio station for Cornwall. Ofcom’s application guidance advised that a broad range of proposed programming for both speech and music as well as catering for local tastes would be important considerations. 8 companies applied. The successful applicant was Atlantic (the interested party in this case). C was the managing director and a shareholder in CKFM, an unsuccessful applicant. 6 weeks after the regulator’s decision, he brought a claim that Ofcom had behaved unreasonably in its application of its own guidelines and the legislative requirements. He brought the claim personally without the backing of the CKFM board. C sought an order quashing the decision, and an order that Ofcom retake the decision and the grant of the license be stayed. Walker J ordered application for permission/interim relief go to an oral hearing.
(1) Whether preliminary points on (i) locus and (ii) delay prevented the court moving on to address the merits.
(2) Whether Ofcom had acted unreasonably in its decision to grant the license to Atlantic.
Permission refused; (1) Both preliminary issues should be considered flexibly. The Claimant had a real personal interest in Ofcom’s decision and stood to gain various financial incentives from the grant of the license. The stronger the merits of the application, the less strict the court would be on the requirements of standing and starting without delay. The degree of delay did not mean that permission should be refused irrespective of the merits. (2) The challenge on the ground of unreasonableness failed. The internal papers relating to Ofcom’s decision made sensible comments in regard of s.105(c) criteria, referred to it in its published reasons and awarded points appropriately. Evaluations were very much a matter for Ofcom not the court. Ofcom’s analysis of the guidance and the legislation was not irrational or perverse. The difficulties on standing and delay fortified the conclusion that permission should not be granted.
The approach of the Court in proceedings for judicial review of Ofcom licensing decisions is set out in R (Wildman) v Ofcom  EWHC 1573 (Admin), another decision of Burnton J. Courts will exercise a high degree of caution before interfering with Ofcom’s discretion in this area. Ofcom’s status as an expert body and the failure of Parliament to provide for an appeal against licensing decisions on the facts or on the law ensures that its decisions will be quashed only in the most exceptional cases.