Alternative Remedies in Judicial Review: Re McAleenon, [2024] UKSC 31
Occasionally, cases arises in which the answer given seems intuitively obvious. The only surprise about Re McAleenon, [2024] UKSC 31 is that the case made it to the United Kingdom’s apex court at all (though as we will see there were some unusual aspects to the case that help to explain why the court below expressed concerns about the suitability of judicial review proceedings).
In brief, the issue was that the court below had held that the ability to seek remedies in private law was an adequate alternative to judicial review of regulatory inaction and thus declined to consider the grounds put forward by M. M was concerned about a smelly landfill site in Northern Ireland. She argued that the relevant authorities (a local authority and a regulator) had been too lax in their enforcement of the statutory scheme.
At first instance, the judge dismissed M’s claim on the merits. The Northern Ireland Court of Appeal did not even get to the merits. It held that M’s ability to either bring a private prosecution against the landfill operator or sue it for the tort of nuisance was an adequate alternative remedy; and as to the regulators, a complaint to the Ombudsman would have been an adequate alternative.
Lord Sales roundly rejected the Court of Appeal’s analysis:
The Court of Appeal made an assessment of Ms McAleenon’s objective in bringing her judicial review claim at too high a level of generality. The immediate objective of that claim is 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. As a matter of principle, in civil litigation it is for a claimant to choose which form of claim to assert and against which party to assert it. The court then rules upon that claim; it has no role to say that the claimant should have sued someone else by a different claim. The question of whether a claimant has a suitable alternative remedy available to them 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.
Viewed from that perspective, it seems clear that neither a private prosecution under section 70 nor a civil claim for nuisance against Alpha could be regarded as an alternative remedy in relation to Ms McAleenon’s judicial review claim against the defendant regulators (still less a suitable one). Her complaint against them was that they were failing to comply with their public law duties, and those other types of action would neither address that issue nor give a remedy in relation to it (at paras. 55-56).
These two interlinked observations seem unarguable to me. First, the possibility of bringing a direct claim against a regulated entity simply cannot be an adequate alternative remedy for judicial review of regulatory inaction. For, as Lord Sales explains, the goals of the two proceedings are entirely different: one involves enforcing private law rights; the other involves holding public bodies to account for wrongful use of public power. Second, it is not the role of the judicial review court to second-guess the litigant’s choice of proceeding: the judge can determine whether the claim is good or not (or arguable, in a case where leave is required; or, I suppose, frivolous or vexatious), but not whether it should have been brought at all.
To be fair to the Court of Appeal, its analysis of adequate alternative remedies was driven in part by its concerns with evidentiary difficulties presented by M’s application for judicial review. Lord Sales explained that these concerns were misplaced, given the role of the courts in judicial review proceedings: “the court is typically not concerned to resolve disputes of fact, but rather 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” (at para. 42).
Interestingly, Lord Sales took pains to note that the information held by the public authority will come before the court either because the authority was under a duty to seek out relevant facts (the so-called Tameside duty, at para. 40) and/or because the authority owes a duty of candour to the court to place relevant material before it (at para. 41). Given these first principles, the Court of Appeal’s reasons could not withstand scrutiny:
(i) The Court of Appeal considered that it had to make definitive findings of fact about whether the offensive odours emanated from the Site, the concentrations of H2S in the air and so forth, hence its reference to the comment in Lewis, op cit (para 25 above), about the onus of proof. But this is not correct. As is common when regulators have to decide whether to take action, the defendants were confronted with a situation in which there was a significant degree of uncertainty about these matters, which is precisely why they conducted investigations. The investigations did not eliminate all uncertainty, but reduced it to a level where the defendants considered that they could take a decision about how to proceed and determined it was not appropriate for them to take regulatory action. The question for the court was whether they had done enough to justify that decision in the light of all the circumstances, applying the usual rationality standard and (so far as relevant) the test appropriate for proportionality analysis in relation to article 8.
(ii) The Court of Appeal assumed that the reviewing court was faced with a choice between simply accepting the defendants’ evidence, with the result that Ms McAleenon’s claim would have to be dismissed, or allowing it to be challenged by way of cross-examination, which had not been sought. In other words, the judicial review claim, if pursued effectively, would have to involve a civil trial with oral evidence from experts on each side who would be subjected to cross-examination. This is not correct either. Arising from point (i) above, the correct approach for a reviewing court would have been to subject the information available to the defendants to critical analysis to see whether they could lawfully make the decisions they did on the basis of it. That exercise did not require oral evidence and cross-examination. To repeat the point, there was no factual dispute regarding the information available to the defendants which called for resolution. Nor was the reviewing court simply obliged to dismiss the judicial review claim in the absence of challenge to the defendants’ expert evidence by cross-examination. Its role was to evaluate the quality of the information available to the defendants (including such information as Ms McAleenon put before them) in order to assess the lawfulness of their conduct. The model which the Court of Appeal thought was relevant, of a civil trial in which the court itself would have to determine the facts on the basis of the balance of probabilities, the onus of proof on particular issues, and cross-examination of witnesses, was simply inappropriate in this context (at para. 44).
Readers will note that the question of adequate alternative remedies has exercised the minds of Canadian judges in recent times. In Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, the Supreme Court rejected a novel ground for refusing a judicial review remedy (on the basis of the quality of internal processes and implied legislative intent to reduce the extent of judicial oversight) but more recently in Democracy Watch v. Canada (Attorney General), 2024 FCA 158, the Federal Court of Appeal held that political oversight can be an adequate alternative remedy to judicial review in cases involving officers of the legislature. This recent decision provides a point of comparison with Yatar and a point of contrast with Democracy Watch.
This content has been updated on November 4, 2024 at 13:50.