Supreme Court quashes Court of Appeal decision to refuse judicial review on basis claimant had “adequate alternative remedy”

The Supreme Court has allowed a woman’s appeal against the Court of Appeal in Northern Ireland’s refusal of permission for judicial review against the regulator of a landfill site on the basis that there were “suitable alternative remedies”.

Unanimously allowing the appeal, the Supreme Court held that a private prosecution or civil claim in nuisance against the site operators, Alpha Resource Management, did not constitute suitable alternative remedies to judicial review.

The Appellant, Ms McAleenon, had applied for judicial review against Lisburn and Castlereagh City Council (LCCC), the Northern Ireland Environment Agency (NIEA), and the Minister of the Department of Agriculture, Environment & Rural Affairs for failing to conduct proper investigations into complaints of “nuisance odour” carried by emissions attributed to Mullaghglass Landfill Site.

She claimed that from early 2018, she and her family had suffered physical symptoms, such as headaches, nausea and stomach problems, caused by odours and noxious gases emanating from the site.

The High Court held that there was no adequate alternative remedy, but dismissed Ms McAleenon’s claim on the merits.

The Court of Appeal, without hearing Ms McAleenon’s appeal on the merits, dismissed the appeal and said that suing the operators of the site, was an “effective alternative remedy”. It pointed to her right to complain to the Northern Ireland Public Services Ombudsman.

Appealing to the Supreme Court, counsel for Ms McAleenon submitted that the Court of Appeal was wrong to dismiss her claim on the basis that she had suitable alternative remedies available to her.

Analysing the submissions, Lord Sales and Lord Stephens said: “Given the nature of the legal question to be determined by the court and the duty of candour, the usual position is that a judicial review claim can and should be determined without the need to resort to procedures, such as cross-examination of witnesses, which are directed to assisting a court to resolve disputed questions of fact which are relevant in the context of other civil actions, where it is the court itself which has to determine those facts.

“In judicial review proceedings the court is typically not concerned to resolve disputes of fact, but rather to decide the legal consequences in the light of undisputed facts about what information the public authority had and the reasons it had for acting.”

The judges added: “There is no suggestion in this case that the LCCC, the NIEA and the Department have failed to comply with their duty of candour. They have given full accounts of what they did and of the information available to them. There is no doubt about the information available to the LCCC, the NIEA and the Department. It is on the basis of the information available to them that the lawfulness of their conduct is to be assessed.”

The Court found that the Court of Appeal “fell into error” in its assessment of the position in relation to the judicial review claim.

Lord Sales and Lord Stephens said: “The Court of Appeal’s assumption that Ms McAleenon’s judicial review claim would in principle require resolution by the court of contentious disputes of fact and cross-examination of experts, as in an ordinary civil action or in criminal proceedings, but for which the judicial review procedure was ill-suited, led it to hold that a civil claim for nuisance or a private prosecution under section 70 would better meet her objectives and would be fairer in terms of enabling the court to weigh up and resolve the disputes between the experts.

“However, in our judgment, this was not the relevant comparison. Ms McAleenon brought a judicial review claim against the defendant regulators in order to compel them to fulfil the public law duties to which she maintained they were subject, for which claim the judicial review procedure was well adapted and appropriate.”

The Court rejected the submission that judicial review should have been refused because Ms McAleenon could have complained to the Ombudsman. It noted that the role of an ombudsman is intended by Parliament to “supplement, not replace”, control of public authorities by the courts through judicial review.

Lord Sales and Lord Stephens concluded: “The Court of Appeal was wrong to dismiss Ms McAleenon’s appeal on the basis of the suitable alternative remedy point. It should have considered whether she had good grounds of appeal against the decision of Humphreys J on the merits of her claim.”

Lord Lloyd-Jones, Lord Briggs and Lady Simler agreed, and the case was remitted to the Court of Appeal.

Harry Robinson of Phoenix Law, who acted for Ms McAleenon said: “The Supreme Court found that our client was right to pursue the regulators of pollution. This is a significant finding for local residents in their continued efforts to protect the environment. Our client is now able to make her case to the Court of Appeal and have a full hearing on the merits of her argument. We hope that today’s judgment will help ordinary people hold regulators of pollution to account in environment cases going forward.”

Lottie Winson