This is an important case for regulators and those concerned about a regulator’s (in)action. The Supreme Court has reiterated the role of judicial review and restated the suitable alternative remedy principle. The Supreme Court’s attention In the matter of an application by Noeleen McAleenon for Judicial Review [2024] UKSC 31 could make applications for judicial review of regulators’ conduct easier to bring and more likely.
Brief background
Noeleen McAleenon lived close to a landfill site. In her case, her family’s health and home life were being harmed by escaping gases and smells from the site. She applied for judicial review, arguing that several regulatory bodies had breached their public law obligations by failing to set appropriate emissions limits for the site and that those breaches contravened her ECHR Article 8 rights.
The claim was dismissed on its merits at first instance and then by the Northern Ireland Court of Appeal on different grounds, namely because (i) evidence would need to be tested by cross-examination (which is not normally permitted in judicial review and for which no application had been made); and (ii) because Ms McAleenon had suitable alternative remedies (a private prosecution or a civil claim for nuisance against the owner of the site – there was also discussion about whether a complaint to the Ombudsman could provide a further alternative remedy). Ultimately, the Supreme Court allowed the appeal, holding that the lower court’s reasoning was based on an erroneous understanding of the judicial review jurisdiction.
Evidence in judicial review proceedings
Disputes of fact with a material bearing on the question of whether the public authority has acted lawfully do not generally arise in judicial reviews. In judicial review proceedings, the court is typically concerned with deciding the legal consequences in the light of undisputed facts about what information the public authority had and the reasons it had for acting. Factual scrutiny will be permitted wherever it is required by the justice of the particular case, but it is not typically required. The Supreme Court stated:
'Judicial review is directed to examination of whether a public authority has acted lawfully or not. This means that the general position is that the focus of a judicial review claim is on whether the public authority had proper grounds for acting as it did on the basis of the information available to it…The court has a supervisory role only.'
The correct question for the court in judicial review is whether the public authority’s decision was rational and proportionate based on the information available to it (this will include consideration of whether the public authority should have sought out further evidence before making its decision). The Northern Ireland Court of Appeal had incorrectly based its decision in part on a correct view that judicial review was generally not a suitable forum for cross-examination whereas in fact the judicial review did not need to determine the sort of issues of fact in this case that would require cross-examination to resolve.
The suitable alternative remedy principle
Judicial review is classically described as a ‘remedy of last resort’. An application will not normally be permitted where there is a suitable alternative remedy. The Supreme Court stated:
'Where Parliament has enacted a statutory scheme for appeals in respect of certain decisions, an appeal will in ordinary circumstances be regarded as a suitable alternative remedy in relation to such decisions which ought to be pursued rather than having resort to judicial review… Otherwise, use of judicial review would undermine the regime for challenging decisions which Parliament considers to be appropriate in that class of case.'
However, in this case, there was no statutory right to appeal the regulators’ decisions. On the face of things, judicial review remained open as there was no truly alternative route if the intention was to challenge the regulators. Approving the first instance judge in part, the Supreme Court stated:
'The public law issues of regulation and enforcement, whereas any private prosecution in the magistrates' court under section 70 would centre on the issue of whether a nuisance has been caused; whilst there is an overlap between the two questions the two kinds of litigation have quite different purposes; and went on, "a member of the public with sufficient interest is entitled to hold regulators to account by pursuing any public law wrongdoing. 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.'
The Supreme Court was clear that the suitability of any alternative remedy needed to be tested against what the applicant wanted to achieve. Ms McAleenon ultimately wanted to achieve the result that noxious gases would be prevented from escaping from the site. There were different routes available to her to seek to do that, each had advantages and disadvantages. She was entitled to choose which route to take and chose a strategy that would involve regulators (with their greater resources) bringing their weight to bear. Ultimately, the court’s role is to rule on the claim before it, not to tell the claimant that she should have brought a different claim.
The role of an Ombudsman
The Supreme Court confirmed the general position that the opportunity to complain to an ombudsman does not bar the right of an individual to bring a judicial review claim against a public authority. The role of the ombudsman is to supplement control of public authorities, not to replace judicial review.
Commentary
In the absence of a clear alternative route to challenge a public authority’s decision, it is likely that judicial review remains available even if there are further or different claims that could be brought against other parties that might allow the claimant to achieve comparable objectives. Arguably, the Supreme Court in this case did little more than clearly to restate established principles of administrative law.
However, the fact that those principles required escalation to the highest level reflects the need for clarification of the fundamental nature and purpose of judicial review. The Supreme Court has provided certainty that public authorities cannot avoid the supervisory jurisdiction of the court by simple reference to the availability of avenues yet to be pursued against other parties.
Where an issue is multi-faceted and judicial review is just one way to achieve a desired result, it does not have to be the last roll of the dice.
Article written by Brian Wong (Partner), Andrew Walls (Senior Associate) and Molly Taylor (Apprentice Solicitor).