Adequate alternative remedies in judicial review

Jonathan Auburn QC and Mark Thornton consider recent developments in the case law on adequate alternative remedies in judicial review claims.

It is a well-known principle that, since judicial review is a remedy of last resort, a judicial review claim will usually not be allowed to proceed where the claimant has an adequate alternative remedy (“AAR”).

The rationale for that principle was helpfully summarised by Sales LJ (as he was then) in R (Glencore Energy UK Ltd) v Revenue and Customs Commissioners [2017] EWCA Civ 1716 at §56. In short, the principle ensures that due respect is given to statutory procedures devised by Parliament, helps avoid duplicative proceedings, minimises misuse of the judicial review procedure, and promotes proportionate and effective allocation of resources.

However, the availability of an AAR does not affect the court’s jurisdiction to grant permission for a judicial review claim. Instead, it is a relevant factor that the court should consider when exercising its discretion to grant permission for a judicial review claim.

Recent case law provides some interesting examples of the exercise of that discretion.

Recent claims allowed to proceed despite an AAR

In R (Fisher) v Durham County Council [2020] EWHC 1277 (Admin), the claimant brought a judicial review claim challenging a noise abatement notice served on her by the defendant pursuant to s 80(1) of the Environmental Protection Act 1990 (“the EPA”). The noise abatement notice related to involuntary shouting and screaming by the claimant which had been causing serious distress and unhappiness to the claimant’s neighbours. Under s 80(3) of the EPA, any individual issued with a noise abatement notice has a right of appeal to the magistrates’ court.

Permission was granted for the judicial review claim, but the question of AAR was left open for argument. At the substantive stage, Knowles J rejected the defendant’s argument that remedies should be refused on the basis that an appeal under the EPA offered the claimant an AAR. There was some uncertainty as to whether the statutory appeal would have allowed the claimant to bring all her grounds of complaint. But Knowles J’s main reason for exercising his discretion to hear the claim appears to have been that forcing the claimant to re-litigate under the statutory appeal process would have caused unjustifiable delay to the determination of what he described as a “troubling case”.

In R (Andy Mann Ltd) v York Magistrates’ Court [2020] EWHC 2540 (Admin), the claimant brought a judicial review claim challenging a liability order for non-payment of business rates issued by the defendant following a complaint by Selby District Council. The claimant could have brought an appeal by way of case stated against the decision, pursuant to s 111(1) of the Magistrates’ Court Act 1980.

The issue of AAR does not appear to have been raised at the permission stage of the judicial review claim. At the substantive stage, HHJ Davis-White QC exercised his discretion to allow the claim to proceed. He noted four reasons for doing so:

1. The parties had not objected to the judicial review procedure, and there was no prejudice to them.
2. The defendant appeared to have told the claimant that his only remedy was to bring a judicial review claim.
3. Permission had been granted for the judicial review claim without the issue being raised.
4. Courts should be reluctant to cause a good claim to be defeated by an error as to the form of the proceedings.

In R (Parker) v Magistrates’ Court at Teesside [2022] EWHC 358 (Admin), the claimant brought a judicial review claim challenging a district judge’s costs order following a statutory nuisance claim. Like in Fisher, the claimant could have pursued an appeal by way of case stated.

At the permission stage of the judicial review claim, HHJ Davis-White QC noted the availability of an appeal by way of case stated. However, he granted permission on the basis that it was at least arguable that the court should exercise its discretion to hear the claim, notwithstanding the existence of an AAR. At the substantive stage, Fordham J refused to dismiss the claim on the basis of an AAR, for the following reasons:

1. There was no formal jurisdictional bar on the claim proceeding, since AAR principle was only relevant to the exercise of the court’s discretion.
2. The point had not been pursued by the defendant or the interested parties.
3. The prejudice to the interested parties was limited, in circumstances where the interested parties had not known about the case stated procedure.
4. The claim was otherwise a good one, and should not be rejected only on AAR grounds.

A stricter approach in the Court of Appeal

In R (Archer) v Revenue and Customs Commissioners [2019] EWCA Civ 1021, the claimant was seeking to challenge an accelerated payment notice issued to her by HMRC. She issued a judicial review claim, as well as making statutory representations to HMRC under the Finance Act 2014. When HMRC subsequently withdrew the accelerated payment notice, the claimant sought her costs on the basis that she had succeeded in her judicial review claim. However, the court refused to grant the costs, holding that the claimant should have first exhausted the AAR under the Finance Act before issuing the judicial review claim. The claimant appealed.

In the Court of Appeal, Henderson LJ dismissed the appeal. He held that the statutory representations under the Finance Act 2014 did represent an AAR that should have been exhausted before judicial review proceedings were issued. That was notwithstanding the fact that exhausting the alternative remedy would have caused the normal time limit for bringing a judicial review claim to expire. Henderson LJ noted that, if a claimant had brought a judicial claim after exhausting the alternative remedy, the court would likely have taken a “flexible and pragmatic” approach and extended the normal time limits, particularly if the defendant had been on notice.  

In R (Rafique-Aldawery) v St George’s, University of London [2018] EWCA Civ 2520, two students had brought judicial review claims against their higher education institution (HEI). Both claimants were seeking to complain about the termination of their university places. Having issued judicial review claims, both claimants were granted stays of their judicial review claims while they pursued complaints through the separate complaints procedure provided by the Office of the Independent Adjudicator (OIA). The defendant HEIs appealed against the stays granted to the claimants, on the basis that the stays and the accompanying guidance issued by Hickinbottom J were contrary to the principle that judicial review is a remedy of last resort that should not be pursued where there is an AAR.

In the Court of Appeal, Nicola Davies LJ allowed the appeal. She noted that a complaint to the OIA was an AAR that offered significant advantages. As such, students should exhaust that remedy before bringing a judicial review claim. She acknowledged that such a course could mean that any subsequent judicial review claim brought by a student would be outside the normal time limits for bringing a judicial review claim. However, applying similar reasoning to Henderson LJ in Archer, Nicola Davies LJ noted that the court would be able to exercise its discretion to extend the normal time limits and allow the late judicial review claim to proceed in such situations.

Conclusions

Two interesting points emerge from these cases.

First, the cases illustrate the kind of factors that will bear on the exercise of the courts’ discretion in respect of the AAR principle. For example:

1. The courts in all the cases seem to have been influenced to some extent by the imperative to avoid wasting resources where possible. In Fisher, Andy Mann Ltd, and Parker, where AAR was only properly considered at the substantive stage, that imperative weighed in favour of allowing the court to engage with the substance of the claim despite the existence of an AAR, since otherwise the parties would have expended resources on court proceedings all the way to the substantive stage without then obtaining a determination of the dispute. Conversely, in Rafique and Archer, the Court of Appeal seems to have concluded that the imperative to avoid wasting resources weighed in favour of enforcing the AAR principle strictly, since doing so would discourage claimants in the future from unnecessarily issuing duplicative judicial claims.

2. The extent to which the decision on AAR will result in the claimant being refused any determination in respect of their complaint is also likely to be relevant. In Fisher, Andy Mann Ltd and Parker, the decision for the court was a stark one, since refusing to hear the judicial review claim on AAR grounds would likely have resulted in the claimants either being denied any hearing of their complaints, or being forced to initiate lengthy new proceedings. Conversely, in Archer and Rafique, the claimants were obtaining or had already obtained a determination in respect of their substantive complaints. In those circumstances, it is perhaps unsurprising that the Court of Appeal was more willing to apply the AAR principle more strictly.

Secondly, the Court of Appeal’s decisions in Archer and Rafique expressly deprecate the practice of issuing a protective judicial review claim to ensure that the judicial review time limits are not missed. That puts claimants with potential AARs in a difficult situation. Failure to issue a protective claim in time, even if the delay is caused by pursuit of an AAR, is inherently risky, since it relies on the court exercising its discretion to allow a later claim despite it being out of time. However, following Archer and Rafique, there is also now an increased risk that a protective judicial review claim will be rejected by the courts on AAR grounds.

Jonathan Auburn QC is a barrister at 11KBW specialising in public law and judicial review.

Mark Thornton is a lawyer specialising in public law.