Judicial review: still a remedy of last resort?

It allows for decisions to be reviewed by the courts to assess whether they were validly made. Judicial review actions can generally be brought on the following grounds of challenge: (i) illegality; (ii) irrationality; (iii) procedural unfairness or (iv) legitimate expectation.

In most circumstances, judicial review is “ordinarily a remedy of last resort, to ensure that the rule of law is respected where no other procedure is suitable to achieve that objective”, as stated in R (Glencore Energy UK Ltd) v Revenue and Customs Comrs [2017] EWCA Civ 1716.

Indeed, it is not uncommon for judicial review proceedings to be defended on the basis that there are adequate alternative remedies open to the party bringing the action. As such, we find people are often reticent to engage with judicial review.

Challenging the decisions of regulators

Whilst it may “ordinarily [be] a remedy of last resort”, that is not always the case, and particularly so when dealing with challenging the decisions of regulators. 

In the recent case of Re McAleenon [2024] UKSC 31, the Supreme Court was given cause to consider this very issue and has given key insights into how judicial review is to be used and what is meant by alternative remedies.

In that case, Ms McAleenon’s property was near to the Mullaghglass Landfill Site which was within the area of Lisburn and Castreagh City Council. Ms McAleenon alleged that she and her family had been affected by the unpleasant odours produced at the site which had caused physical illnesses.

Ms McAleenon brought judicial review proceedings against the LCCC, the Northern Ireland Environment Agency and the relevant government department for alleged failings in investigating the complaints about the Site and for failing to review and revise the permit for the operation of the Site.

At first instance, the High Court dismissed the claim on the merits, finding that reasonable steps had been taken by the public bodies. The Judge also found that the alternative remedies defence would not apply in this case. The Court of Appeal upheld the decision.

The Supreme Court, however, allowed the appeal and found that the lower courts had erred in their judgments. It notably concluded that it was not for the Court of Appeal to say that Ms McAleenon could not sue the defendants because she had other routes available, confirming that 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.”

In this case, a private prosecution or a civil claim for nuisance were available as alternative remedies, and while these avenues may have resolved some of Ms McAleenon’s concerns, they would not have addressed the specific issue of the regulators failing to comply with their statutory duties.

The decision in Re McAleenon demonstrates that courts adopt a narrow view of whether alternative remedies are available, arguably providing greater scope to hold regulators to account. 

The Supreme Court has made it clear, therefore, that regulators cannot evade judicial review merely because other causes of action are available to applicants.

Supreme Court decisions are of course always important, and we note that in a more recent claim, R (on the application of SARCP) v Stoke-on-Trent City Council [2025] EWHC 18 (Admin), the council’s decision to increase the standard rates it paid to care homes at a level that was below inflation was able to be considered through judicial review. Arguments about alternative remedies being available to the care homes were in that case dismissed by the High Court.

Practical considerations

Judicial review is of course not applicable in all cases, and it comes with a cost. That said, it is an important tool which should not be forgotten, particularly when it comes to challenging regulators.

Weightmans’ Professional Discipline team pride themselves on providing a truly ‘full service’ offering, and have a proven track record of deploying judicial review proceedings, at the right time, to crack otherwise ‘unwinnable situations’.

If this is something which could be relevant to you, we would love to discuss this further with you.