In Re McAleenon[2024] UKSC 31, the UK Supreme Court considered the suitability of alternative remedies to judicial review in environmental regulation cases, providing a significant ruling on judicial review’s role when challenging decisions of regulators. [NM1] As discussed in our recent insight on a judicial review of a decision by Western Isles Council, the courts consider judicial review as a remedy of last resort and a petitioner is expected to exhaust any alternative remedies first before resorting to judicial review. In overturning the Northern Ireland Court of Appeal, the Supreme Court found that neither a private nuisance claim, a private prosecution, nor a complaint to the Northern Ireland Public Services Ombudsman, offered a suitable alternative remedy to judicial review. This decision provides guidance on the approach the court will take when reviewing public authority decisions and how judicial review might be used to challenge the decision of regulators.

Facts

Ms McAleenon (the appellant) lived near a landfill site from which she alleged noxious fumes had adversely impacted her health. She was unhappy with the regulatory authorities’ responses to her complaints, she brought judicial review proceedings against her local authority, the Northern Ireland Environment Agency (NIEA), and the Department of Agriculture, Environment and Rural Affairs (DAERA) (the respondents), alleging that these public authorities had failed in their duty to enforce environmental standards effectively.

Her judicial review claim argued that:

The respondents defended the claim on its merits and also argued that judicial review should be refused because the appellant had adequate alternative remedies available through a private prosecution under section 70 of the 2011 Act or a nuisance claim against the site operator.

Lower Court Decisions

  1. High Court of Northern Ireland
    The High Court dismissed the case on the merits but found that judicial review was the appropriate remedy given the facts of the case, rejecting the argument that other remedies would be suitable alternatives.
  2. Northern Ireland Court of Appeal
    On appeal, the Court of Appeal dismissed M's claim without examining its merits. It found that a civil nuisance claim against the landfill operator or a private prosecution would have provided a suitable alternative remedy to judicial review, in part because of the need to resolve expert evidence through cross-examination of witnesses. The Court of Appeal also considered that M could seek relief by filing a complaint with the Northern Ireland Public Services Ombudsman.

Supreme Court Decision

The UK Supreme Court unanimously allowed the appeal, overturning the Court of Appeal's decision. The case was remitted back to the Court of Appeal for reconsideration on the merits. The Supreme Court clarified the role of judicial review in challenging decision of regulators where it is alleged they have failed to perform their statutory duties.

The Supreme Court provided the following reasons for its decision:

  1. Purpose of Judicial Review
    The Court highlighted that judicial review assesses the lawfulness and rationality of public authority actions. Unlike private proceedings, judicial review is not about resolving factual disputes but evaluating whether a public authority acted within its legal limits based on available evidence. The Supreme Court noted that in the appellant's case, the focus was on whether the regulators had adequately performed their statutory functions, and whether their approach to the site could be justified.
  2. No Need for Cross-Examination
    The Court rejected the Court of Appeal's view that cross-examination of witnesses was necessary. In judicial review, the public authority’s approach can be scrutinised by the court and an assessment made of whether the public authority has taken a rational approach, judicial review is not about the resolution of factual disputes. The Court's role is to evaluate the quality of the information available to the respondents in order to assess the lawfulness of their conduct. This means the Court is able to determine the legality of the respondent's actions without cross-examination of witnesses.
  3. Alternative Remedies Assessment
    The Supreme Court disagreed with the Court of Appeal's assessment that a private prosecution or a civil nuisance claim could be suitable alternatives. The appellant's primary objective was to ensure the public authorities fulfilled their regulatory duties, that is a public law issue well-suited to judicial review. The Court observed that the availability of separate legal actions against different parties for different purposes does not negate the appropriateness of judicial review where the aim is to hold a regulator accountable.
  4. Role of the Ombudsman
    The Court clarified that complaints to the Ombudsman supplement but do not replace judicial review. The Public Services Ombudsman Act (Northern Ireland) 2016 restricts the Ombudsman from investigating matters where court proceedings are a suitable remedy.
  5. Article 8 ECHR Claim
    The Supreme Court noted that alternative remedies, like a private prosecution or civil nuisance claim, would not offer suitable redress under Article 8. The appellant sought relief both in the form of compelling the respondents to take regulatory action to stop further emissions from the site and also compensation for past losses. A claim under section 70 of the 2011 Act would be unable to make an order for past losses, and, while a nuisance claim could make an order for past losses, the paying party would be the site operator and not the public authorities. Therefore, there was no equivalent alternative remedy to judicial review which could suitably address the appellant's ECHR claim.

Insights

The decision gives helpful guidance when considering a judicial review about the conduct of a public authority.

  • Distinction Between Public Law and Private Law Remedies
  • The judgment reinforces judicial review’s function as a supervisory mechanism over public authorities, setting a clear boundary between private legal claims and public law remedies. The Supreme Court emphasised that judicial review is not simply one of several available options for holding public authorities accountable. Rather, it is a unique tool suited for public law issues, while civil claims are designed to address private wrongs between individuals. The existence of private legal claims does not replace the availability of judicial review where the actions of public authorities are being challenged.
  • Implications for Environmental Regulation Cases
  • The decision provides another example of a challenge to the conduct of public authorities in environmental matters. As in Finch v Surrey County Council [2024] UKSC 20 which we discuss in a previous insight article, it demonstrates the increased scrutiny and willingness to challenge decision-making by public authorities on environmental issues. This judgment serves as a reminder of regulators’ duty to ensure their actions (or inactions) can be justified, particularly when considering the environmental impact of decisions.
  • Guidance on Suitable Alternative Remedies
  • The Court’s decision provides guidance on what is a suitable alternative remedy and when judicial review may be pursued instead of other options. The Supreme Court indicated that a claimant’s choice of remedy should be based on the nature of the claim and the relief sought, not solely on the availability of different legal claims. The decision also confirms that Ombudsman complaints should not necessarily be considered substitutes for judicial review in cases involving public authorities.

To learn more about when an alternative to judicial review is an alternative remedy, please read our recent insight article here.

Contributors

Sarah Keir

Solicitor

Niall McLean

Partner & Solicitor Advocate