Public Law Update, Part 2: judicial review as the…

In a recent Landmark Chambers webinar, Fiona Scolding KC, Miranda Butler and Charles Bishop reviewed significant developments in public law procedure and practice in the previous months. This blog builds on the content of that webinar and considers recent case law on the question of alternative remedies.

Courts have long emphasised that the judicial review procedure is a “remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective”: R (Glencore Energy UK Ltd) v HMRC [2017] 4 WLR 213 at [55]. Thus, a court may refuse to grant permission to apply for judicial review or refuse to order relief if a suitable alternative remedy is available to the claimant.

The Supreme Court recently revisited the principles around suitable alternative remedies in In Re McAleenon [2024] UKSC 31. Ms McAleenon lived near a waste disposal site. She brought a claim for judicial review of various regulators of the site, arguing that they had failed to take appropriate action to prevent harmful chemical gases and noxious smells from escaping from the site. The regulators resisted the claim on the basis, inter alia, that adequate alternative remedies were available to the claimant, including a private nuisance claim or the bringing of a private prosecution. The Northern Ireland Court of Appeal agreed, and further considered that the claimant could have lodged a complaint with the Northern Ireland Public Services Ombudsman.

The Supreme Court took a different approach. Allowing Ms McAleenon’s appeal and remitting the matter to the Court of Appeal, the court began its analysis by considering the nature of judicial review remedies and Ms McAleenon’s “objective” in bringing the claim. While her overall objective was to prevent the escape of noxious gases from the site, there were different forms of legal proceedings available to her, each entailing different risks and costs, and she was entitled to choose which claim she wished to bring in order to achieve that objective. It was not the court’s place to mandate one form of proceeding. At [55], the court noted:

“As a matter of principle, in civil litigation it is for a claimant to choose which form of claim to assert and against which party to assert it. The court then rules upon that claim; it has no role to say that the claimant should have sued someone else by a different claim. The question of whether a claimant has a suitable alternative remedy available to them falls to be addressed by reference to the type of claim the claimant has chosen to bring and what relief they have sought against the particular defendant.”

Ms McAleenon had been entitled to assess that her overall objective was best met by ensuring that the regulators performed their functions properly and brought their resources to bear on the problem. A private prosecution or civil damages claim would not address the failure of the regulators to comply with their public law duties. The court made particularly strong comments about this important aspect of the judicial review procedure:

“An important reason that regulators such as the defendants are given public law duties of the kind in issue in these proceedings is that they have a responsibility to act in the general public interest to ensure that landfill sites do not give rise to harmful pollution and nuisances which affect individual citizens. Protection of people like Ms McAleenon, as members of the public, is part of their remit. Publicly funded regulators are given the resources to take effective action where individual citizens may be unable to do so. It therefore cannot be a good answer for such a regulator to say in response to a judicial review claim to require it to carry out its duty in the public interest that the individual member of the public should take action themselves to address the problem.”

It was also relevant that judicial review was a comparatively speedy, simple and cheaper process than either of the purported alternatives. There was no good reason to require the claimant to assume the greater expense and burden of these avenues.

As to the Court of Appeal’s suggestion that the claimant could have complained to the Ombudsman, the court emphasised the general position that the opportunity to complain to an ombudsman does not affect the right of an individual to bring a judicial review claim: R v Monmouth District Council, ex parte Jones (1985) 53 P & CR 108. The role of an ombudsman is to supplement, but not replace, the supervisory jurisdiction of a court.

The High Court considered the effect of the McAleenon judgment in the very recent case of R (SARCP) v Stoke-on-Trent City Council [2025] EWHC 18 (Admin). That case concerned a standard contract agreed between Stoke-on-Trent City Council and several care home providers. The contract contained a mechanism for annual adjustment of standard rates that the Council paid to providers, with a clause stating that the “price shall be subject to annual indexation at a rate to be determined by the Council following consultation with the Provider. The rate shall be no less than 1.4%”. The Council decided that the increase for 2024 should only be 1.4%, despite consultation responses suggesting that this was well below inflation. The claimant, a group representing several care home providers in the area, challenged the decision through judicial review proceedings.

The claim was resisted on several bases, including that the claimant could have complained to the Council’s internal complaints procedure, engaged in dispute resolution pursuant to the contract or brought a private law claim under contract law. Dealing with the first of these suggestions, HHJ Tindal, sitting as a Judge of the High Court, stated:

“…the availability of complaint to an Ombudsman - does not generally affect the right to claim judicial review (McAleenon at [63], likewise R v Devon CC exp Baker [1995] 1 All ER 73 (CA) on external complaints). So, an internal complaint can hardly do so. In any event, the Claimant set out a detailed pre-action protocol letter on 22nd August 2024 setting out essentially the same allegations as in the grounds of challenge, so it is unrealistic to expect the Claimant to pursue an internal complaint as an ’alternative remedy’ to Judicial Review.”

The second suggestion of engaging in ADR was similarly dealt with briefly as there was a particular need for expedition in the claim, and it was “unrealistic” [46] to require the claimant to pursue ADR concurrently with expeditious judicial review proceedings.

As to the suggestion of bringing a private law claim under contract law, HHJ Tindal pointed out that the claimant itself would not be able to bring any such claims since it was its individual member organisations that had entered into contracts with the Council – not the claimant. The claimant was unable to bring a private law claim as a third party without any rights under the contract. While the defendant took issue with the claimant’s standing to bring the proceedings in this capacity, that was not a whole answer to the question of exhaustion of alternative remedies.

In the quotation from Glencore cited at the opening of this blog, it is the “achievement” of the “objective” of the “rule of law” being “respected” for which an alternative remedy may come before judicial review in the hierarchy of legal action. The trend emerging from these cases is a renewed focus on compliance with the rule of law properly understood. The court considers not a generalised practical outcome which the claimant seeks, but rather the specific public law duty at play and the remedies available to address a breach of that duty. In many cases, only a court hearing a claim for judicial review will have the powers available to secure compliance with that public law duty. Only where an alternative course could produce an equivalent remedy to that which would be available in the claim for judicial review may a court refuse the claim on this basis.

This article is written by Charles Bishop.

You can watch the full webinar recording here.