Alternative remedies in judicial review: the case of Re McAleenon [2024] UKSC 31

In October, the Supreme Court handed down a unanimous judgment providing guidance on the approach to be taken where a regulator who is subject to judicial review proceedings contends that the claim should be dismissed due to an “alternative suitable remedy”.  

The case emphasises the distinctive nature of public law claims, their importance in holding public authorities to account, and their relative advantages in comparison with related avenues of redress.  It is likely to be of particular interest to regulators and to those seeking to challenge their conduct.  

Background

The Appellant, Ms McAleenon, lived at a property located in the vicinity of the Mullaghglass Landfill Site (the “Site”), which was occupied and operated by Alpha Resource Management Ltd (“Alpha”).  She claimed that she and her family had suffered from unpleasant physical symptoms as a result of noxious fumes emanating from the Site.

In May 2021, Ms McAleenon commenced judicial review proceedings against Lisburn and Castlereagh City Council (the “LCCC”), the Northern Ireland Environment Agency (the “NEIA”) and the minister of the Northern Ireland Department of Agriculture, Environment and Rural Affairs (“the Department”).  She alleged that in breach of statutory duties, the LCCC had failed to conduct proper investigations into complaints about the emissions, and the NEIA and the Department had failed to review and revise Alpha’s permit to operate the Site. She further contended that they had breached her rights under Article 8 ECHR.

The Northern Ireland High Court’s judgment 

(Click here to read) Humphreys J dismissed the application on its merits, concluding that there was no breach of statutory duty or Article 8.  He also rejected the defence that the application should be refused because of the availability of an alternative remedy in the form of a private prosecution.  In doing so, he  emphasised that the case concerned “the public law issues of regulation and enforcement”, whereas a prosecution would concern whether a nuisance had been caused. Although there was an overlap between the issues, “the two species of litigation have quite different purposes”. He considered that “it would be an unfortunate and unattractive position if a regulator could effectively be immune from suit in this sphere by reference to alternative proceedings in the magistrates’ court.” (§92).

The Northern Ireland Court of Appeal’s judgment (Here)

(Click here to read) Ms McAleenon appealed the judge’s decision on the merits and the defendants cross-appealed the dismissal of the alternative remedy argument.  In addition, the NEIA and the Department argued that the proceedings were academic as the Site had closed and the ventilation walls had been capped.

The Court of Appeal rejected the contention that the proceedings were academic, but dismissed the appeal on the basis that there were suitable alternative remedies in the form of a private prosecution in the magistrates’ court and a private law claim for nuisance in the County Court or High Court.  It considered that the claim was unsuited to the judicial review procedure, primarily due to the significant conflicts between the expert evidence. It was of the view that without that evidence being tested in court (which the parties had not sought), it would be “imprudent” to reach a concluding view on key issues (§38). The only permissible course was to accept the defendants’ expert evidence, but that would be “an unsatisfactory way of resolving the contentious scientific debate” (§42). 

In contrast, the Court of Appeal considered that a private prosecution or a civil claim offered “a much better means for the appellant to achieve her desired goal”, namely “the cessation of the alleged toxic emissions” as well as compensation. It regarded these procedures as fairer than judicial review because they permitted a court to “weigh up the evidence, especially the expert evidence, and come to a considered conclusion” (§61). 

The Supreme Court’s judgment

In a judgment jointly authored by Lord Sales and Lord Stephens, the Supreme Court unanimously allowed Ms McAleenon’s appeal, concluding that the avenues of redress identified by the Court of Appeal could not be regarded as an alternative remedy to the judicial review claim, “still less a suitable one” (§56). 

The role of the reviewing court

The Supreme Court held that the Court of Appeal had erred in its understanding of the nature of the claim, and this had led to errors in its assessment of the alternative remedy argument.

Returning to first principles, the Supreme Court emphasised that the legal question that generally needs to be answered in judicial review proceedings is “whether the public authority had proper grounds for acting as it did on the basis of the information available to it” (§40). In view of the nature of that question, and the obligation to comply with the duty of candour, “the usual position is that a judicial review claim can and should be determined without the need to resort to procedures, such as cross-examination of witnesses, which are directed to assisting the court to resolve disputed questions of fact”. Instead, the court is generally required to decide “the legal consequences in the light of undisputed facts about what information the public authority had and the reasons it had for acting” (§42).

It followed from this that the Court of Appeal had fallen into error in two respects. First, it had considered it necessary to make definitive findings of fact about disputed issues, whereas the proper question was whether the regulators “had done enough to justify” their decision “in light of all the circumstances”(§44(i)).  Secondly, it had mistakenly considered that the court had a choice between accepting the defendants’ evidence or permitting cross-examination. Instead, the correct approach was to critically analyse the information before the regulators in order to determine the lawfulness of their decisions (§44(ii)).  These errors were significant because they had led to the erroneous conclusion that the civil claim or prosecution constituted a better means to meet Ms McAleenon’s objectives and a fairer process (§48).

The availability of suitable alternative remedies

Turning to the suitable alternative remedy principle, the Supreme Court set out the key points established by the authorities, including the guidance given in R (Glencore Energy UK Ltd) v Revenue and Customs Coms [2017] EWCA Civ 1716 that judicial review “is ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective”.  The Court of Appeal had, however, characterised Ms McAleenon’s objective in bringing her claim “at too high a level of generality”. It considered that she wanted to prevent noxious gases from escaping from the Site, but this objective could be achieved through various legal avenues, “each giving rise to different issues and each with their own associated risks and costs”.  The Supreme Court emphasised that she was entitled to choose which claim she wanted to bring; the “immediate objective” of the claim she brought was “to seek to compel the defendant regulators to carry out what Ms McAleenon maintains are their public law duties as regulators, not to seek relief from Alpha” (§55).  

This was important because the question of whether there is a suitable alternative remedy “falls to be addressed by reference to the type of claim the claimant has chosen to bring and what relief they have sought against the particular defendant” (§55). In this case, neither a private prosecution or a private law claim would resolve the public law question, or provide the related remedy (an award of damages against Alpha being different from an order for compensation against the regulators under the Human Rights Act 1998) (§56, 61).  The Supreme Court also rejected the suggestion that a complaint to the Ombudsman amounted to a suitable alternative remedy, noting the settled position that the right to make such a complaint does not affect the right to bring a judicial review claim (§63).

Finally, the Supreme Court rejected the argument that the claim was academic, and remitted the case to the Court of Appeal to consider the appeal on its merits. 

Comment

This case provides an important reminder about the distinctive nature of a public law claim. Ms McAleenon had a choice between various legal proceedings, but each involved different issues and gave rise to “their own associated risks and costs”.  Her particular complaint was that the regulators had failed to comply with their public law duties, which was characterised by the Supreme Court as a “straightforward public law claim” (§59).  Furthermore, the magistrates’ court would not have had the power to award compensation, and whilst damages were available in a private law claim, “the quantum would be unlikely to be the same and the paying party would be different” (§61).

The judgment confirms that a judicial review claim does not typically require the court to  resolve disputed questions of fact.  It reminds us that the court’s jurisdiction is supervisory, and the legality of a public authority’s conduct is decided by reference to “undisputed facts about what information the public authority had and the reasons it had for acting”.  Importantly, a public body has a “Tameside duty” (to obtain all relevant facts) as well as a duty of candour (to explain the facts it took into account and the information available to it when it took its decision) (§40-41). Whilst cross-examination is permitted “whenever the justice of the particular case so requires”, the justice of the case does not usually require it (§42). Understood this way, judicial review offers advantages over a private prosecution or a civil claim, since those involve “calling witnesses and extended cross-examination which take time and involve cost which are not necessary in a judicial review” (§59). 

Although this decision essentially confirms conventional principles about the nature of judicial review, it is likely to give regulators pause for thought before defending a claim on the basis that there is a suitable alternative remedy.  The Supreme Court emphasised that regulators have important responsibilities to act in the public interest and are “given the resources to take effective action” where individuals are unable to do so (§58).  Shifting the burden onto individual claimants to pursue different remedies is unlikely to be an attractive argument (although there is an increasingly relevant question whether regulators are in fact properly resourced to be able to take effective action).

Finally, it is worth noting that the judgment does not throw the doors open to judicial review any time a regulator has fallen short. As the Supreme Court observed, where there is a statutory scheme for appeals against particular decisions, “an appeal will in ordinary circumstances be regarded as a suitable alternative remedy” (§51). This is often the case in heavily regulated industries where there are statutory mechanisms in place to appeal the decisions of regulators.

Sahil is a senior associate in the public law team. His practice covers all aspects of public law from judicial reviews to public inquiries, with particular expertise in environmental and climate change judicial reviews, planning challenges, human rights-based challenges, and public procurement litigation.

Andrea is the public law team’s Professional Support Lawyer.