A recent Supreme Court judgment, in the matter of an application by Noeleen McAleenon for Judicial Review, handed down on 16 October 2024, has affirmed and clarified the fundamental principles of judicial review and the suitable alternative remedy principle. In exercising its ‘supervisory role’, the Court’s focus in a judicial review claim must be ‘on whether the public authority had proper grounds for acting as it did on the basis of the information available to it’.
This is an important case for public authorities amenable to judicial review and those concerned with public authorities’ actions, as it has the potential to make applications for judicial review of their conduct more likely.
Background
Ms McAleenon lived in the vicinity of a landfill site, and claimed to have suffered numerous health symptoms due to inhaling noxious fumes emitted from the site. In applying for judicial review, Ms McAleenon contested that the regulatory bodies had failed to properly investigate her complaints and set appropriate emissions limits, which contravened her right to respect for private and family life (ECHR Article 8). The Northern Ireland Court of Appeal held that the claim for judicial review should be dismissed, on the basis that it would need to make findings of fact (which are not suitable for judicial review) and so private prosecution and a civil nuisance claim against the site operator were both suitable alternative remedies to judicial review. The Supreme Court disagreed, allowing the appeal and remitting the case back to the Northern Ireland Court of Appeal for consideration on the merits.
Findings of fact in judicial review
Factual disputes are not commonly considered in judicial review proceedings; the Court is instead mostly concerned with deciding the legal consequences of a public authority’s conduct, considering the information available to the authority at the time. The duty of candour requires public authorities to explain to the Court all the facts and information that it considered when deciding how to act.
The Supreme Court held that the Northern Ireland Court of Appeal was wrong to think that it needed to make findings of fact, such as whether the noxious gases emanated from the site. The question for the Court was instead whether the regulators decisions not to take regulatory action were rational and proportionate based on the information available to them.
Suitable alternative remedy
Judicial review is a ‘remedy of last resort’; where there are alternative remedies available, an application is unlikely to be permitted. In this instance, the Supreme Court held that the Northern Ireland Court of Appeal had erred in its judgment that the need for fact-finding meant that a civil claim for nuisance or a private prosecution would better suit the appellant’s objectives.
The question is what does the applicant wish to achieve. In this case, there was no statutory right of appeal in relation to the public law duties of the regulators, meaning Ms McAleenon had no other method of achieving her objective to compel the regulators to carry out their public law duties. The judicial review was brought in order to meet this objective; proceedings of a different nature, directed against a different party, were not a suitable alternative remedy to challenging the conduct of the regulators.
In a similar vein, the Supreme Court confirmed that the existence of an ombudsman does not bar the right of an individual to make a judicial review claim; an ombudsman’s role is supplementary to the oversight that judicial review permits.
Comment
Whilst the judgment simply restates the fundamental principles and purpose of judicial review, the appellate history of the case shows that the clarification is required and welcome. It is clear that, whilst judicial review is a ‘remedy of last resort’, public authorities cannot avoid judicial review by reference to the availability of additional claims against other parties; it boils down to the objective sought by the applicant, and the true availability of other remedies that would meet such an objective.
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