Supreme Court clarifies suitable alternative remedies to judicial review

The Supreme Court recently unanimously allowed an appeal, holding that a private prosecution or civil claim in nuisance against the operator of a landfill site did not constitute suitable alternative remedies which excluded the possibility of a judicial review against the Northern Ireland Environment Agency (NIEA) and other public authorities.

David Thorneloe, public policy law expert at Pinsent Masons, said: “This judgment helpfully reaffirms the conventional approach of UK courts permitting the judicial review of regulators, after the Northern Ireland Court of Appeal had suggested that claimants should generally be expected to sue regulated industries instead.”

The case concerned an alleged nuisance odour from Mullaghglass landfill site in Northern Ireland. The case, brought forward by Noeleen McAleenon, has raised critical questions about the responsibilities of regulators and the rights of individuals affected by environmental issues.

McAleenon lived near the landfill site which is operated by Alpha Resource Management Ltd. She reported suffering from various physical symptoms and a deterioration in her mental health due to a persistent nuisance odour coming from the landfill. Despite not taking direct legal action against Alpha, she lodged complaints with the Lisburn and Castlereagh City Council (LCCC), the NIEA, and the Department of Agriculture, Environment and Rural Affairs (DAERA).

McAleenon argued that these public authorities failed in their statutory duties to investigate and address the nuisance odour, claiming that this inaction violated her right to a family and private life under Article 8 of the European Convention on Human Rights and the Human Rights Act.

The case progressed through the judicial system with the Northern Ireland High Court and Court of Appeal both ruling against McAleenon, leading her to appeal to the Supreme Court.

The Supreme Court was tasked with examining whether there was an effective alternative remedy available in private law that could have precluded McAleenon’s application for judicial review against the public authorities. The High Court previously held that no such alternative remedy existed and dismissed the application, stating that the authorities had not action irrationally and had balanced competing interests appropriately.

The Court of Appeal upheld this decision, but on the grounds that McAleenon should have pursued a private law remedy against Alpha instead. However, McAleenon contended that the public authorities’ failures are at the core of her grievances, necessitating judicial review.

The Supreme Court allowed the appeal. It explained that judicial review is concerned with examining whether a public authority has acted lawfully in fulfilling its duties. This gave rise to different issues and different remedies from a private law action against Alpha. The Court of Appeal had therefore erred in its judgment.

The court found that while McAleenon’s overall objective was to prevent the odour escaping from the landfill site, her immediate aim was to compel the public authorities to fulfil what she maintained were their public duties and judicial review was appropriate for that. The Supreme Court noted that any alternative proceedings against site operator Alpha would not address this issue nor give a remedy in relation to it.

The fact that McAleenon could have brought other proceeding of a different nature, directed against another party, in which different issues would arise, did not mean that she had a suitable alterative remedy in relation to the judicial review claim she wished to bring. It is for the claimant to choose which form of claim to bring against which party.

Ian Morgan, property disputes expert at Pinsent Masons, said: “Put simply, the UK Supreme Court has, in its carefully worded judgment, helped to unblur the lines between the different types of claims and remedies available to parties to civil proceedings.  In so doing, it has highlighted the importance of, and policy reasons why, such different 'gateways' to justice exist within the UK legal landscape."