Grace Bay II Holdings Sarl & Ors, R (on the application of) v The Pensions Regulator & Ors

Where Parliament has created a comprehensive regulatory scheme with an internal decision-maker and a statutory appeal or rehearing, judicial review will ordinarily be refused if that alternative remedy can address the substance of the complaint. This applies even where the challenge alleges that a warning notice was ultra vires or procedurally unfair.

The absence of a power to make a formal quashing order is not decisive where the statutory bodies can withdraw, revoke, vary or replace the relevant decision. Cost, delay and convenience are not ordinarily exceptional circumstances. The Administrative Court should avoid fragmenting or delaying specialist regulatory proceedings, particularly where the statutory scheme protects a public interest.

The claimants sought judicial review of a second warning notice issued by the Pensions Regulator during an investigation into the sale of a company’s business and assets and the resulting pension-scheme deficit. They argued that the Regulator lacked power to issue the second notice while the first remained extant and that the process was conspicuously unfair.

The Regulator and interested-party trustees relied on the statutory procedure under the Pensions Act 2004, including consideration by the Determinations Panel and a possible reference to the Upper Tribunal. The central question was whether that procedure was an adequate alternative remedy and, if so, whether exceptional circumstances justified judicial review at the warning-notice stage.

1. Permission refused and claim dismissed. The claimants had an alternative remedy within the comprehensive regulatory code established by the Pensions Act 2004.
2. The statutory scheme required the Regulator to follow the standard procedure. A warning notice was an investigatory step, not necessarily the Case Team’s final position, although the Regulator remained under a duty to act fairly. The notice gave directly affected persons an opportunity to make representations before any determination.
3. The Upper Tribunal’s powers under section 103 were sufficiently broad to address procedural objections. Although the Tribunal could not issue a formal judicial-review quashing order, the Case Team could withdraw a notice, the Determinations Panel could refuse to proceed on an irregular notice, and the Tribunal could direct the Regulator to vary or revoke a determination.
4. The principles in R (Davies) v FSA [2004] 1 WLR 185, R (Griggs) v FSA [2008] EWHC 2587 (Admin) and R (Willford) v FSA [2013] EWCA Civ 677 applied. Judicial review was appropriate only in exceptional circumstances, usually where the alternative remedy was clearly unsatisfactory. A full rehearing could remedy serious procedural defects.
5. The alleged lack of power to issue a second warning notice and the complaints concerning expert evidence, disclosure and even-handedness were matters suitable for determination within the specialist statutory process. Resolving them in judicial review would risk delay, unnecessary expense and an undesirable precedent for routine intervention in regulatory investigations.
6. Cost and convenience did not amount to exceptional circumstances. The court therefore declined to determine the substantive vires, fairness, materiality and disclosure issues.