In the matter of an application by Noeleen McAleenon for Judicial Review (Northern Ireland)

The existence of other proceedings capable of advancing a claimant’s wider objective does not itself make them suitable alternatives to judicial review. Suitability must be assessed by reference to the particular claim, defendant and relief chosen.

Judicial review of regulatory decision-making ordinarily examines whether the regulator lawfully acted on the information available to it. The reviewing court need not determine the underlying facts as if conducting an ordinary civil trial. A private claim or prosecution against the regulated person does not answer an allegation that regulators breached public law duties. Nor will an ombudsman complaint ordinarily displace judicial review where the statutory scheme gives court proceedings priority.

The appellant alleged that emissions from a landfill site harmed her health and interfered with her home. She sought judicial review of the local council, the environmental regulator and the responsible department, alleging failures to investigate and enforce applicable regulatory regimes and breaches of article 8 of the European Convention on Human Rights.

The High Court rejected the regulators’ alternative-remedy defence but dismissed the claim on its merits: [2022] NIQB 39. The Court of Appeal allowed the regulators’ cross-appeal and dismissed the appellant’s appeal because a private prosecution, a nuisance action and potentially an ombudsman complaint were said to provide suitable alternative remedies: [2023] NICA 15.

The central issues were whether those procedures were suitable alternatives to judicial review and whether closure of the landfill rendered the claim academic.

1. Appeal allowed unanimously. Lord Sales and Lord Stephens, with whom Lord Lloyd-Jones, Lord Briggs and Lady Simler agreed, held that the Court of Appeal had assessed the alternative-remedy issue incorrectly. The case was remitted so that the Court of Appeal could determine the appellant’s appeal against the dismissal of her claim on its merits.

2. Judicial review examines whether a public authority acted lawfully on the information available to it. The reviewing court ordinarily applies conventional public law standards and does not determine the underlying facts on the balance of probabilities. It may critically assess the quality of the information available to the authority without hearing oral evidence or cross-examining experts. The Court of Appeal therefore erred by treating the claim as requiring a civil trial to resolve conflicting expert evidence.

3. An article 8 claim did not alter the court’s essentially supervisory role. The relevant questions included whether the regulators had proceeded on a sufficient evidential basis, acted with due diligence and struck a lawful balance between competing interests. In environmental regulation the authorities generally enjoy a significant margin of appreciation.

4. Judicial review is ordinarily a remedy of last resort where another procedure conveniently and effectively addresses the legal complaint. A statutory appeal against the challenged decision will usually take priority. That principle did not apply here because there was no statutory appeal against the regulators’ alleged failures to discharge their public law duties.

5. Suitability must be assessed by reference to the claim selected, the defendant sued and the relief sought. A private prosecution under section 70 of the Clean Neighbourhoods and Environment Act (Northern Ireland) 2011 and a nuisance action against the landfill operator involved different parties, duties, issues, procedures and remedies. Neither addressed whether the regulators had complied with their public law obligations. The private prosecution also could not provide compensation for past loss, while nuisance damages against the operator were not equivalent to compensation against the regulators for an article 8 breach.

6. An ombudsman complaint was not a suitable alternative. The statutory scheme treated the ombudsman as supplementing judicial review and generally gave court proceedings priority.

7. The claim was not academic. Closure of the site and sealing of its wells did not establish that the risk of harmful emissions had ended, and management issues were likely to continue.

1. United Kingdom Supreme Court: Allowed the appeal from [2023] NICA 15 and remitted the case to the Court of Appeal to determine the appeal on its merits.
2. Court of Appeal in Northern Ireland: Allowed the regulators’ cross-appeal on suitable alternative remedies and consequently dismissed the appellant’s appeal: [2023] NICA 15. It rejected the contention that the proceedings were academic.
3. High Court of Justice in Northern Ireland: Rejected the alternative-remedy defence but dismissed the judicial review claim on its merits: [2022] NIQB 39.