ALTERNATIVE REMEDY

October 17th, 2024 by James Goudie KC

The appeal to the Supreme Court in McAlleenon (2024) UKSC 31 concerns the exercise of discretion by a Court where the public authority defendant argues that the claimant has an adequate alternative remedy such that judicial review should be refused. The Supreme Court holds that a private prosecution or civil claim in nuisance did not constitute suitable alternative remedies to judicial review. The Supreme Court says that judicial review is concerned with  examining whether a public authority has acted lawfully. The Court has a supervisory role only. Its task is not typically to resolve disputes of fact but to determine the legal question of whether the public authority had proper grounds for acting as it did on the basis of the information available to it. As such, usually, judicial review claims can and should be be determined without the need for procedures which are directed to resolving disputed questions of fact, such as cross-examination of witnesses. Moreover, in human rights cases the Court’s role remains essentially one of review; and complaint to an Ombudsman does not constitute a suitable alternative remedy.

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