Following the wrong-turning taken by the Northern Ireland Court of Appeal in the McAleenon case, the Supreme Court’s judgment represents a welcome restatement of orthodoxy.
Although the Supreme Court’s judgment in In the matter of an application by Noeleen McAleenon for Judicial Review [2024] UKSC 31 traverses some ostensibly technical ground, it is underpinned by an important reiteration by the Court of the role of judicial review. It was the failure of the Northern Ireland Court of Appeal ([2023] NICA 15) properly to recognise underlying fundamental points about the nature and function of the courts’ judicial review jurisdiction that led it into error on the technical questions that had arisen in the case.
The appellant lived near a landfill site, from which, she claimed, noxious gases and odours were escaping and making her and her family ill. She could have pursued the matter by bringing a private prosecution under relevant legislation or by making a civil claim for nuisance. Instead, she brought a claim for judicial review, arguing that relevant regulatory bodies had acted unlawfully at public law by failing to set appropriate emissions limits for the site and that this, in turn, had infringed her right to private and family life under Article 8 of the European Convention on Human Rights. The Northern Ireland Court of Appeal dismissed the appellant’s case, holding that judicial review was unsuitable because (a) evidence would need to be tested via cross-examination, which would be inappropriate in a judicial review case and (b) the other routes available to the appellant constituted suitable alternative remedies that should be pursued instead of judicial review. The Supreme Court, allowing the appeal, disagreed on both matters.
Cross-examination
The Supreme Court held that the Court of Appeal had erred when it held that the claim was ‘unsuited to the judicial review procedure’ ([2023] NICA 15, [74]), including on the ground judicial review would require the resolution of contested issues of fact via cross-examination. The Supreme Court ([2024] UKSC 31, [43]) said that the Court of Appeal had been wrong to think it needed to make ‘definitive findings of fact’ about such matters as ‘whether the offensive odours emanated from the Site, the concentrations of [hydrogen sulfide] in the air and so forth’. And it had fallen in that error because, in the first place, it had misunderstood what judicial review is — and is not — about. Delivering what amounted to a Judicial Review 101 class, the Supreme Court (at [41]) explained that:
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.
It follows that while cross-examination is admittedly rarely entertained in judicial review proceedings, it is, to begin with, seldom necessary. For one thing, a ‘public authority [defendant] is subject to a duty of candour to explain to the court all the facts which it took into account and the information available to it when it decided how to act’ ([41]). For another, whereas procedures such as cross-examination of witnesses may be essential in civil cases, in which courts have to resolve disputes of fact, the same does not go for judicial review:
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.
Properly understood, then, the question for the court in this case was whether the defendants had ‘done enough to justify [their] 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’. Cross-examination was beside the point because ‘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’ — that is, by reference to the rationality and proportionality tests — ‘make the decisions they did on the basis of it’. Viewed thus, the general unavailability of cross-examination in judicial review proceedings does not, for the most part, limit the courts’ capacity to deal with such cases because, in the first place, the nature of the courts’ task in them does not normally require the determination of disputed questions of fact that would call for cross-examination.
Exhaustion of alternative remedies
It is well-established that judicial review is a remedy of ‘last resort’; permission to seek judicial review is likely to be refused if a suitable alternative remedy exists. In McAleenon, the Court of Appeal held that such remedies did exist and that, on that basis too, judicial review should not lie. Its analysis of this point was partly infected by its erroneous approach to the cross-examination point, the Supreme Court explained (at [48]):
The Court of Appeal’s assumption that Ms McAleenon’s judicial review claim would in principle require resolution by the court of contentious disputes of fact and cross-examination of experts, as in an ordinary civil action or in criminal proceedings, but for which the judicial review procedure was ill-suited, led it to hold that a civil claim for nuisance or a private prosecution … would better meet her objectives and would be fairer in terms of enabling the court to weigh up and resolve the disputes between the experts…
How, then, should the determination have been made as to whether there was a suitable alternative remedy, so as to place the availability of judicial review in jeopardy? The starting point, the Supreme Court reiterated (at [51]), is that:
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.
But the relevant of a statutory right of appeal, like the relevance of any other available remedies, must be judged according to what it is that the individiual is seeking to achieve. In this case, the appellant had chosen to bring a judicial review claim ‘in order to compel them to fulfil the public law duties to which she maintained they were subject, for which claim the judicial review procedure was well adapted and appropriate’ ([49]). There was ‘no statutory right of appeal in relation to a failure by the defendant regulators to carry out their public law duties’ ([52]), so on that basis, judicial review remained available. What of the other potential remedial routes available to the appellant? None of them, the Court held, passed muster, because they were not suited to enabling the appellant to achieve her objective:
The fact that she could have brought other proceedings, of a different nature (a nuisance claim or a private prosecution), directed against another party (Alpha [the site operator]), in which different issues would arise and in light of which different procedures would have been required to be followed to resolve those issues did not show that she had a suitable alternative remedy with regard to the claim she did wish to bring, which was to challenge the conduct of the defendant regulators.
Thus, said the Court (at [55]), the key principle is that:
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.
It followed (at [56]) that:
neither a private prosecution … 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.
The Court of Appeal had fallen into error, said the Supreme Court (at [55]), because it had ‘made an assessment of Ms McAleenon’s objective in bringing her judicial review claim at too high a level of generality’. It follows that if, as here, the litigant’s objective is to challenge a public body on the ground that it has failed to discharge its public law duties, judicial review (absent a statutory right of appeal) is likely to be available notwithstanding the possibility of (for instance) a civil or criminal claim.
Comment
What is striking about the Supreme Court’s judgment in McAleenon is not the conclusions it reached on cross-examination or the exhaustion of alternative remedies; on those matters, it did little more than restate orthodoxy. Rather, what is notable is the way in which the Northern Ireland Court of Appeal went astray on those issues because, to begin with, it lost sight of some fundamental points about the nature and purpose of judicial review, and about how it relates to and is distinct from other modes of redress. This, in turn, underlines the importance — including in relation to the resolution of seemingly technical and procedural questions — of recognising the supervisory nature of the courts’ judicial review jurisdiction, the nature of the questions that fall for determination in such proceedings and, just as importantly, what courts are not expected or required to do in judicial review cases. That the Northern Ireland Court of Appeal lost sight of those points is as unfortunate as the Supreme Court’s reiteration of them is welcome.
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