McKleenon, re Application for Judicial Review (Northern Ireland) 2024 UKSC 31
Following our recent Law Pod UK episode on judicial review, this case contains some useful guidelines to the differences between the kinds of remedy available via judicial review versus statutory appeal, private civil actions, private prosecutions and other avenues for compensation.
It involved an application for judicial review of decision-making by the regulator of landfill maintenance, where the regulator argued that the claimant had an adequate alternative remedy such that judicial review should be refused.
The applicant, Noeleen McAleenon, had claimed that the regulator had not taken appropriate action to prevent harmful chemical gases and noxious smells escaping from a neighbouring landfill site. But the public bodies maintained that judicial review should be refused because Ms McAleenon had adequate alternative remedies, in that she could herself launch a private prosecution against the owner of the site: Section 70 of the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 (“the 2011 Act”) provides that a person aggrieved by the existence of a statutory nuisance may make a complaint to the magistrates’ court for an order requiring abatement of the nuisance and prohibiting its recurrence and the imposition of a fine.) Alternatively, the defendants said, she could bring a nuisance claim against them in private law.
The first instance judge dismissed the alternative remedies defence. He observed (para 92) that the case concerned 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 had been caused. Whilst there is of course an overlap between the two questions, the two kinds of litigation have quite different purposes:
“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”.
So Ms McAleenon was granted leave to apply for judicial review on the basis that she had an arguable case against the defendants that they had breached their public law duties as regulators in relation to the Site.
But the Court of Appeal decided against her, finding that there were indeed suitable alternative remedies open to her in the form of a private prosecution in the magistrates’ court under section 70 and also in the form of a claim for the tort of nuisance in the County Court or the High Court, both of which were capable of giving her the relief she required, if she were able to prove her case, namely permanent abatement of the nuisance she alleged was created by the dumping of materials at the Site. Insofar as she wished to complain about the conduct of the regulators, the Court of Appeal called attention to her right to complain to the Ombudsman (paras 57-58): the suggestion was that such a complaint constituted a suitable alternative remedy in relation to that aspect of her claim.
“We are satisfied that either civil proceedings in the County Court (or High Court) or statutory nuisance proceedings before the Magistrates’ Court offered a much better means for the appellant to achieve her desired goal, namely the cessation of the alleged toxic emissions from the Site and compensation for such injuries and inconvenience as she and her family may have sustained. Either process will be fairer because the court will be able to weigh up the evidence, especially the expert evidence, and come to a considered conclusion.” [CA, para 61]
The problem with judicial review proceedings, in the CA’s view, was that it was not the appropriate forum for settling the “profound disagreement” between the expert witnesses. It was “simply impossible” for any court in JR proceedings to reach a final conclusion on that contentious, but untested expert evidence.
The Supreme Court upheld the appeal against this judgment. Lords Sales and Stephens expressed the unanimous view of the SC and summarised, briefly, the avenues open to the appellant.
- Judicial review is directed to examination of whether a public authority has acted lawfully or not.
- JR proceedings do not generally turn on disputes of fact. Rather than resolving disputes of fact, the court hearing a judicial review application must decide the legal consequences in the light of undisputed facts about what information the public authority had and the reasons it had for acting.
The Court of Appeal had erred in concluding that it had to make definitive findings of fact about whether the offensive odours emanated from the Site. The question for the court was not this fact-based one, but whether
“[the regulator] had done enough to justify that decision in the light of all the circumstances, applying the usual rationality standard and … the test appropriate for proportionality analysis in relation to article 8.” [para 61]
In this case, said the Supreme Court, there was no factual dispute regarding the information available to the defendants which called for resolution. The role of the reviewing court 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.”
In paragraph 45 the SC made it clear that the Human Rights Act and the European Convention of Human Rights does not alter the nature of judicial review at all:
“the claim based on article 8 does not change this basic picture regarding the role of the reviewing court, even though the test for the lawfulness of the conduct of the defendants under section 6 of the Human Rights Act taken with article 8 is different from the test under general domestic principles of public law.”
“In human rights cases brought against public authorities the court’s role remains essentially one of review: R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532, paras 27-28.”
The Court of Appeal’s had wrongly assumed that Ms McAleenon’s judicial review claim would 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. She had in fact brought a judicial review claim against the defendant regulators in order to compel them to fulfil the public law duties to which she maintained they were subject, and for which claim the judicial review procedure was well adapted and appropriate. The fact that she could have brought other proceedings, of a different nature (a nuisance claim or a private prosecution), 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.
In the instant case, there was no statutory right of appeal in relation to a failure by the defendant regulators to carry out their public law duties.
“Ms McAleenon was entitled to choose which claim she wished to bring. She was entitled to assess that her overall objective might best be promoted by ensuring that the defendant regulators did their job properly, as she saw it, and brought their more extensive resources to bear on the problem. It was not for the Court of Appeal to say that she could not sue them.” [para 54]
Just because the appellant could have brought a private prosecution against the waste company or a civil claim for nuisance as an alternative remedy in relation, her judicial review claim against the defendant regulators 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.
“Judicial review is a comparatively speedy and simple process, involving significantly less time and cost than would be likely to be required for a trial in a private prosecution or in a civil claim in nuisance. Those procedures would involve calling witnesses and extended cross-examination which take time and involve cost and which are not necessary in judicial review. There is no good reason why Ms McAleenon should be expected to take on the additional burden associated with bringing such proceedings, in place of the comparatively less expensive course of bringing the judicial review claim she chose to bring against the defendant regulators. The Court of Appeal characterised her judicial review claim as “more complex” (para 60), but that is not correct. It is a straightforward public law claim which is apt to be addressed according to ordinary public law principles and procedures. Humphreys J did just that. As we have mentioned above, at para 44, the Court of Appeal erred in its understanding of what is involved in such a public law claim.” para 59
Any claim in private nuisance, attractive though it may seem, would not bring the relief sought by the appellant in this case. The quantum would be unlikely to be the same as it would be in successful JR proceedings, and, of course, the paying party would be different. If the landfill company were unable to meet an order against it, Ms McAleenon would be left without recourse against anyone else.
“It is not appropriate in a claim against a public authority for the authority to invite the court potentially to become embroiled in satellite issues involving an investigation into whether a third party might or might not be able to meet an order to pay damages made in different proceedings against it.”
Finally, their Lordships addressed the defendants’ argument that since the landfill site had closed, this application was academic. This argument could not be accepted.
“There is no evidence to support the contention that just because the Site has now been closed and the wells sealed all risk of emission of harmful gases has been avoided. Issues regarding the proper management of such gases are likely to continue into the future.”
The post Supreme Court endorses judicial review over other remedies – in some cases appeared first on UK Human Rights Blog.