Understanding alternative remedies: Supreme Court stands firm on judicial review's role in holding regulators to account

The Supreme Court has held that a private prosecution or a nuisance claim against the operator of a landfill site did not constitute suitable alternative remedies to a judicial review of public authorities' compliance with their public law duties in relation to regulating the site. In doing so the Supreme Court set out some important principles on the role of judicial review.

In the matter of an application by Noeleen McAleenon for Judicial Review (Appellant) [2024] UKSC 31.

Key Points

• The Supreme Court has emphasised the role of judicial review in providing a less expensive and comparatively speedy process by which to enforce public law duties against public authorities.
• The role of judicial review is not to decide the evidence on its merits, but instead is to consider whether the public body made a rational/proportionate decision based on the evidence available to it, which will not generally require cross examination or resolution of factual disputes.
• When considering whether there is an adequate alternative remedy, it is relevant to consider the type of claim brought, the type of relief sought and the relevant defendant, as opposed to other parties against whom other types of remedy are available.

Background

Facts

The Appellant was a resident in Northern Ireland, in the vicinity of Mullaghglass Landfill Site (the "Site"). The Appellant claimed that there were disturbing odours and noxious fumes coming from the Site which had caused her and her family unpleasant physical symptoms as well as concerns about her mental health.

The Site had previously been served with an abatement notice by Belfast City Council, pursuant to complaints from other nearby residents. However, this was later withdrawn following a challenge by the operator of the Site.

Relevant regulatory regimes

The Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 (the "2011 Act") gives a local authority, in this case Lisburn and Castlereagh City Council ("LCCC"), powers in relation to nuisances in its area. By virtue of section 70 of the 2011 Act, a citizen who complains of such a nuisance may bring a private prosecution.

The second relevant regulatory regime is the Pollution Prevention and Control (Industrial Emissions) Regulations (Northern Ireland) 2013 (the "2013 Regulations"), under which the Northern Ireland Environment Agency ("NIEA") regulates the Site through the grant of permits and conditions and has enforcement powers. The Appellant also contended that the Northern Ireland Department of Agriculture, Environment and Rural Affairs (the "Department") had regulatory responsibilities under the 2013 Regulations.

History of the judicial review claim

The Appellant's judicial review proceedings alleged that (i) LCCC had failed to conduct proper investigations into the complaints about emissions from the Site, (ii) NIEA and the Department had failed to review and revise the permit for the Site under the 2013 Regulations, and (iii) LCCC, NIEA and the Department had, by virtue of (i) and (ii) infringed her rights under Article 8 of the European Convention on Human Rights.

NIEA and the Department contended that the Appellant had a suitable alternative remedy available to her in either a private prosecution under the 2011 Act or a civil claim in nuisance, both of which would be directed at the operator of the Site.

The first instance judge dismissed the alternative remedies defence, commenting 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 a magistrates' court." However, the Appellant's claim was dismissed on its merits.

The Appellant appealed this decision and LCCC, NIEA and the Department cross-appealed the alternative remedy point.

The Northern Ireland Court of Appeal allowed the cross-appeal regarding suitable alternative remedies, which meant that the Appellant's appeal on the merits fell away. The Court of Appeal held that the Appellant could have pursued a claim under section 70 of the 2011 Act or a nuisance claim, which would have "offered her the opportunity of obtaining relief against the alleged wrongdoer." The Court of Appeal also drew the Appellant's attention to her right to complain to the Ombudsman in relation to the conduct of regulators.

A point that concerned the Court of Appeal was the proliferation of expert evidence in the case. In particular, the Court of Appeal was concerned that, in the absence of the expert evidence being tested by cross-examination (which no party had applied for), it was difficult for the court to reach a conclusion on the points of contention between the experts.

This influenced the Court of Appeal's decision regarding a suitable alternative remedy, as it considered that a resolution of the evidential disputes was needed, and that it was better suited to an inquiry by the Ombudsman rather than judicial review which is not generally suited to resolving disputes of fact. The Court of Appeal took the view that the alternative remedies available would allow for determination of contested issues and would be "less complex", "cheaper and certainly more effective".

Supreme Court Decision

The Supreme Court reiterated that the role of judicial review was to examine whether a public authority has acted lawfully or not on the basis of the information available to it. It was on this basis that the Supreme Court considered that the Court of Appeal had erred. It was not for the Court of Appeal to make definitive findings of fact about the Site, instead it was for the court to decide whether LCCC, NIEA and the Department had done enough to justify their decision not to take regulatory action in light of the circumstances, applying the usual standards of rationality and proportionality (in respect of the Article 8 claim). This required the court to subject the information available to the public authorities to critical analysis to assess the lawfulness of their conduct – it did not require oral evidence and cross examination.

The Supreme Court considered that this error from the Court of Appeal affected its assessment regarding the availability of a suitable alternative remedy. Importantly, the Supreme Court found that "[t]he fact that she could have brought other proceedings, of a different nature…directed against another party…in which different issues would arise…did not show that she had a suitable alternative remedy with regard to the claim she did wish to bring". Judicial review was appropriate for the claim the Appellant brought, which was designed to compel regulators to fulfil public law duties. The Supreme Court therefore endorsed the view of the High Court judge that it could not be a good answer for a regulator to say that the individual should take action themselves to address the problem. The Supreme Court commented that regulators are given public law duties partly because they have a responsibility to act in the general public interest, and the resources to take effective action where individual citizens may be unable to do so.

The Supreme Court took the opportunity to reiterate that it is for a claimant to choose which form of claim to assert and against which party to assert it. It also noted that judicial review is supposed to be a speedy and effective procedure involving significantly less time and cost than the alternatives. Given the focus on the legal question, and the duty of candour on a public authority, the court is not usually concerned with resolving questions of fact and therefore processes such as cross-examination are generally unnecessary (although they can be used where required).

That is not to say the alternative remedy principle does not have a place – for example, it is appropriate when there is a statutory scheme for appeals in respect of certain decisions, so as not to undermine the regime that Parliament has decided is appropriate. The question of whether a claimant has a suitable alternative remedy falls to be addressed by reference to the type of claim they have chosen to bring and the type of relief they are seeking against a particular defendant. Neither a private prosecution nor a claim in nuisance would provide a remedy against the regulators for failing to comply with alleged public law duties. The Supreme Court also noted the general position that an opportunity to complain to an ombudsman does not affect the right to bring a judicial review – an ombudsman supplements the role of the courts through judicial review, rather than replacing it.

The Supreme Court allowed the appeal and remitted the case to the Court of Appeal to consider the merits of the Appellant's claim.

Comment

This is an important Supreme Court case in understanding what constitutes a suitable alternative remedy so as to render judicial review unavailable. The Supreme Court reiterated that judicial review is ordinarily a remedy of last resort and that it will not usually involve fact-finding processes such as oral evidence and cross-examination. However, this did not preclude the Supreme Court from finding that possible remedies against other defendants were not suitable alternative remedies in circumstances where the basic aim of the proceedings was to enforce public law duties.

The Supreme Court also took the opportunity to make more general comments about the role of judicial review, especially in the regulatory sphere. It reiterated the importance of judicial review proceedings as a remedy to hold regulators to account and noted regulators' responsibility to act in the public interest.