Grosvenor Chemical Ltd v The Health and Safety Executive

An alternative civil remedy does not remove the Administrative Court’s jurisdiction to entertain judicial review. It is, however, a potentially weighty factor in deciding whether judicial review should be granted. Where the alternative remedy is equally effective and convenient, or more effective and convenient, judicial review should ordinarily be refused. A private dispute-resolution procedure operated by a public body will not necessarily be an independent or adequate substitute for determination by the civil courts. Where statutory fees are recoverable only as a civil debt, the debtor may challenge their amount in civil proceedings, including on the basis that the fees exceed costs reasonably incurred.

Grosvenor Chemical Limited challenged a Level Three Disputes Panel decision concerning fees charged by the Health and Safety Executive and the Environment Agency following a major accident at GCL’s site. The panel had reduced the amount claimed, but £377,911.38 remained outstanding.

The dispute concerned whether judicial review was an appropriate means of challenging the panel’s decision. The court considered the statutory scheme under the Control of Major Accident Hazards Regulations 1999, including the provision that fees were recoverable only as a civil debt, and whether GCL had an equally effective alternative remedy in the civil courts.

1. The claim for judicial review was dismissed. GCL had an alternative remedy in civil proceedings if the HSE sought to enforce the invoices. It could defend the debt, or seek a declaration, on the ground that the costs were not reasonably incurred and therefore exceeded the statutory limit.

2. Regulation 22 of the Control of Major Accident Hazards Regulations 1999 links the recoverability of the fee with the requirement that it must not exceed the costs reasonably incurred for the relevant functions. Regulation 22(5), providing for recovery only as a civil debt, indicates that the dispute is a private civil law matter for the ordinary civil courts.

3. The existence of an alternative remedy is not conclusive as to jurisdiction. It is a factor, potentially a very weighty factor, in the court’s discretion whether to grant judicial review. The court adopted the formulation summarised in C v The Financial Services Authority [2012] EWHC 1417 (Admin): judicial review will generally be refused where the alternative remedy is equally effective and convenient, but may proceed where it is substantially less convenient, beneficial or effectual.

4. The civil courts offered an independent tribunal and could determine the disputed costs finally. Remitting the matter to another panel would achieve nothing, because the panel was not independent and any panel decision could still be challenged in subsequent civil proceedings. The procedure was properly viewed as a private-law, quasi-alternative dispute-resolution process. The court also expressed considerable doubt that the panel’s decision was amenable to judicial review at all.

5. Costs followed the event. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment, with an interim payment of £13,700 payable within 28 days.

The judgment describes the claimant’s challenge to a Level Three Disputes Panel decision dated 11 November 2011. The panel had upheld the objections in part, leaving £377,911.38 outstanding. The Administrative Court dismissed the judicial review claim.