TESTS FOR ISSUES AMENABLE TO JUDICIAL REVIEW

[2.06] The principal judge-made tests that are used for purposes of delimiting the reach of judicial review are: the �source of power’ test; the �nature of the issue’ test (which was first used in the context of public sector employment disputes); the �public interest’ test (which has broadened the nature of the issue test); and the �public func­tions’ and �emanation of the State’ tests (which seek to identify public authorities in the modern polity).

The �Source of Power’ Test: Statute

[2.07] The source of power test is centred on the understanding that all public law decisions, acts, and failures to act can ultimately be traced to statute (although it does not thereby follow that statutory powers can only sound in public law^[200]). In constitu­tional terms, this link between statute and public law is a correlate of the doctrine of the sovereignty of the Westminster Parliament.^[201] Public law orthodoxy in the UK holds that the Westminster Parliament is the source of all legal sovereignty and that those who exercise public law powers and/or perform public law duties must do so in accord­ance with the terms of the Act of Parliament that delegates responsibility to them (the so-called ultra vires doctrine).^[202] Although many now regard this orthodox view as at least in part unsatisfactory,^[203] statute, which can include Northern Ireland statute law,^[204] remains the source of power that is central to almost all judicial review applications.^[205] The point can be seen in Table one below, which summarises the content of judicial review judgments delivered in Northern Ireland between January and October 2013.

[2.08] Where an applicant wishes to challenge a decision, act, or failure to act relative to the terms of statute he or she must make out one or more of the grounds for judicial review developed by the courts. The grounds were historically classified as �illegality’, �irrationality’, and �procedural impropriety’,^[206] although they now include other sub­headings such as proportionality, substantive legitimate expectation, and equality.^[207] Moreover, under the Human Rights Act 1998—a common law constitutional statute^[208]— �it is unlawful for a public authority to act in a manner which is incompatible with a Convention right’.^[209] Decisions, acts, and failures to act^[210] can therefore be challenged on the ground that they are contrary to the substantive and procedural guarantees of the ECHR that have effect under the terms of the Human Rights Act 1998.^[211] Decisions or other measures can also be challenged as contrary to the provisions of EU law as read with the European Communities Act 1972 (another common law constitutional statute).^[212]

[2.09] The grounds for review are examined more fully in subsequent chapters.^[213] However, one point here concerns the relationship between statute as a source of power and the intensity of review conducted by the courts. Statute will give decision-makers varying degrees of discretion in an area and, while the extent of discretion is a matter for judicial interpretation of the statute,^[214] the courts accept that the primary responsi­bility for exercising the discretion—in the sense of making substantive choices—is that of the decision-maker. This traditionally meant that the courts would not examine the legitimacy of a substantive choice if it had been made within the parameters of the power (�illegality’), if it was not outrageous in its defiance of logic or of accepted moral standards (�irrationality’), and if it adhered to statutory and common law procedural requirements (�procedural impropriety’).

Table One: Table of Judicial Review Cases, January-October 2013 (Source: NI Court Service and BAILII websites)

The �Nature of the Issue’ Test and Public Sector Employment Disputes

[2.10] The source of power test (see [2.07]-[2.09]) is predicated on the now outdated understanding that public law powers and duties can have their origins solely in statute. One corollary of this is that private law relations—for instance those based on contract—have traditionally been excluded from judicial review precisely because the source of power is non-statutory and found on the private law side of the public/private divide.^[218] For example, in Re Lyle’s Application,^[219] judicial review was sought of the decision of the Executive Committee and the Disciplinary Committee of the Ulster Unionist Council to disaffiliate North Down Constituency Association. In holding that the dispute was not amenable to judicial review, Carswell J held that �there is no statu­tory regulation of the constitution or membership of political parties... they remain private associations regulated by private law’.^[220] The dispute was therefore contractual, notwithstanding that �political parties are very closely involved in elections and that their affairs and activities are a matter in which the public have considerable interest’.^[221] Case law in England and Wales has likewise affirmed that the existence of a contract will normally prove decisive, even where it is argued that the contractual relationship in question is not truly consensual.^[222]

[2.11] The question whether a matter is one of public law or private law can, however, become more complex in the context of public sector employment disputes and the courts have here developed a �nature of the issue’ test. Although public sector employees are ordinarily in the same position as private sector employees—that is, their employ­ment law disputes are matters of private law^[223]—the courts accept that judicial review proceedings may be appropriate in some circumstances. Hence in Re Phillips’ Applica­tion^[224] Carswell LJ suggested that, when a public sector employment dispute comes before the court on an application for judicial review, the court should �consider the nature of the issue itself and (ask) whether it has characteristics which import an element of public law’.^{[225] [226] In identifying when public law issues may arise, Carswell LJ referred to the points of principle outlined by the Court of Appeal in England and Wales in McClaren v Home Office.41 The first of these was, again, that employment disputes involving public sector employees would normally be matters of private law and that proceedings should be begun in the ordinary way. However, judicial review may be appropriate where a body established under the royal prerogative or statute hears disputes in proceedings that are neither domestic nor wholly informal,[227] as judicial review has long been available in respect of the decisions of such inferior bodies (subject to the non-availability of an effective alternative remedy). The Court of Appeal in England and Wales also considered that judicial review may be appropriate where an employee of the Crown or other public body is adversely affected by an employment decision that is of general application and which can be argued to be Wednesbury unreasonable.[228] The key, under these circumstances, is to distinguish between decisions that are made in respect of an individual (a private law matter) and decisions that are �taken as a matter of policy, not in relation to a particular member of staff, but in relation to staff in general’.[229] Decisions of this latter kind �could be the subject of judicial review’.[230]}

[2.12] Phillips clearly represented a move away from a rigid source of power test towards one that focuses on the nature of the decision at issue. While the case is for that reason significant, the fact that only a few employment disputes may fall within the McClaren exceptions^[231] does, however, mean that the case also has limitations (it is notable that on the facts in Phillips, where the applicant challenged his dismissal from his post with the Ministry of Defence, it was held that no public law issue arose^[232]). The point here is that a decision to proceed by way of application for judicial review when that is the wrong procedure may subsequently present practical difficulties for the applicant. Although RCJ Order 53, rule 9(5) allows some applications for judicial review to continue as if commenced by way of writ—the courts may also allow an application to proceed where there are mixed issues of public law and private law^[233]— much will depend on the remedy sought in the Order 53 statement. In Phillips the court thus refused to allow the proceedings to continue because it considered that the case had been built around the public law objective of having the dismissal quashed (the court thought that the applicant’s case would thereby need to be substantially recast before it would be suited to private law proceedings). The applicant was on that basis prejudiced at two levels, as the application for judicial review had proven ill advised (the court considered that there would, in any event, have been no grounds for granting the relief sought) and he was unable to proceed under Order 53, rule 9(5). The signifi­cance of this procedural point is considered more fully at [2.30]-[2.33].

[2.13] One further public sector employment case of relevance is Re Aitken’s Application,^[234] which confirms that judicial review may be available where an individual has no other remedy. The applicant here was a full-time member of the Royal Ulster Constabulary Reserve who was employed on a three-year contract. Although the contract was renewable, the Chief Constable—whose power of appointment derived from statute^[235]—refused to renew it in the light of concerns about the applicant’s asso­ciation with suspected members of a terrorist organisation. The Chief Constable’s power to refuse or renew a contract had not, however, been included in the terms of the applicant’s contract, and the applicant initiated judicial review proceedings. While the application was to be dismissed both for reasons of delay and merits, Kerr J nevertheless emphasised that judicial review had been open to the applicant. High­lighting that the Chief Constable’s powers of appointment were statutory and that they had not been written into the applicant’s contract, the judge considered that a decision to renew or refuse a contract amounted to an exercise or non-exercise of statutory power that sounded in public law. The judge also noted the absence of private law rights that the applicant could pursue by way of civil proceedings, as well as the absence of the possibility of bringing proceedings for unfair dismissal.^[236]

The �Public Interest’ Test

[2.14] The �nature of the issue’ approach in Re Phillips’ Application has since been used to found a much wider �public interest’ test of amenability to judicial review. This test was first used in Re McBride’s Application,^[237] where a challenge was made to a decision of an army board not to discharge from service two soldiers who had been convicted in a civilian court of murder (the applicant was the mother of the victim of the murder). The question for the court, among others, was whether this decision was an employment decision that affected only the soldiers in respect of whom it was made, or whether it was a decision that was amenable to judicial review. In holding that it was amenable, Kerr J referred to Carswell LJ’s judgment in Phillips and said:

It appears to me that an issue is one of public law where it involves a matter of public interest in the sense that it has an impact on the public generally and not merely on an individual or group. That is not to say that an issue becomes one of public law simply because it generates interest or concern in the minds of the public. It must affect the public rather than merely engage its interest to qualify as a public law issue. It seems to me to be equally clear that a matter may be one of public law while having a specific impact on an individual in his personal capacity.^[238]

The impugned decision was on this basis open to review because �the public has a legitimate interest in whether those who have been convicted of murder should be allowed to continue to serve as members of the armed forces’.^[239] While the judge at the same time said that the position would be different where a decision was, for example, taken to retain an office worker in the service of a private company, the distinction here was clear: �Whether an individual be retained in employment dedicated to the service of the public is, to my mind, self evidently a matter of public law.’^[240]

[2.15] The width of the public interest test—both potential and actual—has been apparent in a number of subsequent cases. For instance, in Re Kirkpatrick’s Applica­tion^[241] the court considered that the Lough Neagh Fishermen’s Co-operative Society’s decision to refuse the applicant a licence for eel fishing would have been amenable to judicial review had the applicant not had an effective alternative remedy.^[242] Although the Co-operative Society is a private organisation, it has an historical and exclusive right to grant licences for eel fishing on Lough Neagh, and the judge considered that â€?the public has a legitimate concern as to how fish stocks are maintained and how fishing activities are regulated in this substantial and important natural asset... But for the historical accident that fishing rights are privately owned by the Society one would expect that such an important natural resource would be controlled by a public agency accountable to government and ultimately the public.’^[243] The test was also used in Re Wadsworth’s Application,^[244] where it was held that the Northern Ireland Railways Company Ltd’s decision to exclude a taxi driver from a designated rank at Belfast’s Central Station was a matter of public law. This was because â€?the provision of taxi services at Central Station affects the public interest where those members of the public using public transport provided by the statutory railway authority have a legitimate interest in the continuity of those services with incidental transport arrangements’.^{[245] [246]} And in Re City Hotel (Derry) Ltd’s Application⁶¹ it was held that a dispute between a property company and the Department of Social Development about costing for the development of lands owned by the Department likewise fell within the public interest test. Although the Department argued that the dispute was commercial, Weatherup J adopted the â€?affects’ and â€?impacts’ approach developed through Phillips, McBride, and Kirkpatrick:

The decision under challenge is not a decision made directly in connection with the contractual relationship between the applicant and the Department.... The issue concerns the terms on which public lands might be developed and disposed of.... The site is publicly owned and the public have a right to expect that the development and disposal of the site will be undertaken by the Department in the public interest.^[247]

[2.16] Such use of the public interest test is of importance for two reasons. First, by elaborating upon the precise nature of the public interest in the issues in McBride, Kirkpatrick, Wadsworth, and City Hotel (Derry) Ltd, the courts have used the test in a way that should in part alleviate concerns about the use of the term �public interest’. The term is one that is both potentially vague and value laden,^[248] and its use in other contexts has been criticised as shielding judicial policy preferences and facilitating judicial involvement in disputes that are essentially political.^[249] By linking the �public interest’ in the various cases to concrete—though not incontestable—considerations the test has thus arguably been used in a manner that observes minimum requirements of transparency. On other hand, it might also be said that the test gives individual judges too much discretion in cases before them and that this can only engender uncertainty as to the test’s future applicability.

[2.17] The second reason relates to the test’s ability to embrace the decision-making processes of the varied and de facto forms of governmental power in the modern era. While the source of power test traditionally traces all public power to statute (see [2.07]), historical accidents (Kirkpatrick) and the increased contractualisation of gov­ernment (privatisation, contracting out, etc^[250]) mean that public law decisions may in fact be taken by a wide range of non-statutory and/or private bodies. Under the public interest test, applications for judicial review may therefore now (potentially) be brought in respect of the decision-making processes of such bodies, whether their power is of historical or contemporary origin. The public interest formulation on that basis provides the most expansive—and perhaps important—of all of the tests for amenability to review.

�Public Functions’ and �Emanations of the State’

[2.18] The public function test—which is central to judicial review in England and Wales^[251]—is another to have been developed in the light of the diffuse and de facto forms of governmental power. The test is most famously associated with the judgment of the Court of Appeal in England and Wales in R v Panel on Take-overs and Mergers, ex p Datafin^[252] In that case it was held that the decisions of a self-regulating unincorporated association that oversees the take-overs of listed public companies could be subject to judicial review, notwithstanding that the body had no direct statutory, prerogative, or common law powers (statute did, however, play an indirect role relative to sanctions for breach of the Panel’s code). For the Court, it was no longer appropriate to consider solely the source of a body’s power, but also its nature. Hence where a body is �exer­cising public law functions, or if the exercise of the functions have public law consequences, then that may... be sufficient to bring the body within the reach of judicial review’.^[253] This, in turn, was an open-ended formulation that was premised upon the need to identify �a public element, which can take many different forms’,^[254] and it has since given rise to a number of related tests and questions that include: �whether (the body) operates as an integral part of a system which has a public law character, is supported by public law. and performs what might be described as public law functions’;^[255] whether there is sufficient statutory penetration of the decision-maker’s functions;^[256] whether the body is under an express or implied public duty to perform its tasks;^[257] or whether government would, �but for’ the existence of the non-statutory body, create a statutory body to oversee the area in question.^[258]

[2.19] Case law in Northern Ireland has also referred to the public function test, although it is arguable that it would in any event now be subsumed within the public interest test considered above ([2.14]-[2.17]). One such reference was made in Re Sherlock and Morris’s Application^^[259] where Kerr J held that judicial review was available to challenge a decision of Northern Ireland Electricity (NIE) to disconnect the perma­nent electricity supply to two residences. Although the judge noted that NIE was a privatised company that was accountable to its shareholders and in which the govern­ment was not a majority shareholder, he held that the performance of NIE’s functions was a matter of public law. Finding first that �it could not have been argued that the supply of electricity was not a public law function’ before NIE was privatised, the judge emphasised that �it is the public nature of the function which is discharged which provides the primary, if not the exclusive, guide to the question of whether (a decision) is amenable to judicial review’.^[260] Having analysed NIE’s core responsibilities in respect of the provision of electricity to the public—NIE holds a licence for this purpose under the Electricity (Northern Ireland) Order 1992^[261]—Kerr J thus concluded that �It would be inconceivable... that the discharge of these duties should be outside the common law control of public functions’.^[262]

[2.20] Kerr J also decided that NIE’s decision should be amenable to review by drawing comparisons with the reach of EU law’s �emanation of the State’ doctrine. Under this doctrine, individuals can invoke the terms of directly effective Directives in proceedings against the State or a body �which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals’^[263] (the purpose of the doctrine is to ensure that understandings of the �State’ are drawn as widely as possible in the face of the CJEU’s Marshall ruling, which established that Directives can only be relied upon in proceedings involving the State and not those between private parties^[264]). In cross-referring to the doctrine, Kerr J noted that a privatised water utility in England had already been held to be an emanation of the State for the purposes of EU law.^[265] Given that he considered NIE to discharge similar duties to those of the water authority, Kerr J reasoned that it �would be anomalous if NIE... were to be regarded as a state authority but was considered to be immune from judicial review’.^[266] EU law thereby �spilled over’ in Sherlock and Morris and influenced the judgment of the court in a purely national law dispute.^[267]

[2.21] The �emanation of the State’ test should, however, be partly distinguished from the �nature of the issue’ and �public interest’ tests that are alternatively used by the courts ([2.10]-[2.17]). This is because the question whether a body is an emanation of the State is in one sense anterior to the question whether a decision taken by the body sounds in public law (the point could also be made if the question posed is whether a particular body is able to perform a public function). In other words, while the emana­tion of the State test may help to determine whether a body is, in effect, a repository of public power, the body will still make a variety of public law and private law deci­sions (for example, to cut off the electricity supply, and to discipline an employee, respectively). In respect of an individual decision taken by, for instance, a private company it is thus likely that the key question will remain whether the decision is in the nature of a public law decision or comes within the terms of the public interest test. It is, moreover, significant that the courts have, in any event, emphasised the need for judicial caution when reviewing the �public law’ decisions of such bodies^[268]: while judicial review is available, the courts plainly wish to avoid over-active invigilation of decisions taken in quasi-commercial contexts where such invigilation may have unfore­seen implications for parties beyond those before the court.

Section 6 of the Human Rights Act 1998

[2.22] Definitions, descriptions, and/or lists of public authorities can also be found in a variety of statutory provisions and these too may be considered by the courts when delimiting the reach of judicial review. One of the most important provisions is section 6 of the Human Rights Act 1998, which reads:

6. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(3) In this section �public authority’ includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

This section, which is interpreted by the courts on a case-by-case basis (the Act does not contain a formal list of public authorities), is understood to impose human rights obligations upon �pure’ or �obvious’ public authorities and �mixed function’ or �hybrid’ authorities.^[269] Pure/obvious public authorities are those that are synonymous with the State and which include central government departments, the devolved legislative and executive bodies, local authorities, and the police.^[270] The human rights obligations imposed upon such authorities are all-embracing in the sense that the authorities must comply with section 6 whether they are acting in either a public law or a private law capacity.^[271] The position in respect of �mixed function’ authorities is, however, different. Mixed function/hybrid authorities are those bodies that are private in form but which may nevertheless perform public functions (it was suggested in advance of the Act coming into force that these might typically include privatised utilities and private com­panies performing contracted-out government functions^[272]). When such a body is performing a public function, it must do so in an ECHR-compliant manner.^[273] However, where the nature of the act is private, section 6 does not apply and the ECHR does not bind the decision-maker. The only possible exception to this rule is where the courts—which are pure/obvious public authorities for the purposes of the Act—accord horizontal effect to the Act by developing private law causes of action in the light of the ECHR.^[274]

[2.23] In terms of delimiting the reach of judicial review, the key issue in respect of mixed function authorities is when their acts are to be regarded as public and when they are to be regarded as private. Although the reach of section 6 and of judicial review are more generally distinct,^[275] the question of when a private body is per­forming a public function for the purposes of the Act is often taken as equivalent to the question of when non-statutory decisions should be amenable to judicial review.^[276] Indeed, the overlap between the two led to an expectation, in advance of the Act’s coming into force, that an expansive reading of section 6(3)(b) would prompt analo­gous developments in judicial review. Courts in England and Wales had, for instance, previously rejected the argument that decisions taken by private bodies performing some contracted-out government functions should be amenable to judicial review. While the courts accepted that this was unsatisfactory given the modern nature of government, they nevertheless considered themselves constrained by the existence of a contractual relationship between government and the service provider (on the limiting influence of contract see [2.10]). The result was for individuals to be left without any meaningful remedy in some cases because: (a) judicial review was not available against the private body; (b) the individuals often did not have any private law relationship with the private body that could found a private law cause of action; and (c) judicial review proceedings against the public authority that had entered into the contractual relationship with the private body would be futile given that the actual decisions under challenge had been taken by the private body that was party to the contractual relationship.^[277]

[2.24] Case law under the Act in England and Wales has not, however, resulted in an expansive approach to section 6(3) (b) and, by analogy, to judicial review. For instance, in YL v Birmingham City Council^[278] a majority in the House of Lords held that a privately owned, profit-earning care home that provided accommodation for publicly funded residents was not a public authority for the purposes of section 6(3) (b). The issue had arisen when an individual who had been placed with the care home under the terms of a contract between the home and a local authority that had a statutory duty to make arrangements for accommodation for the individual^[279] sought to rely upon the ECHR when challenging the care home’s decision to move her from the home. In holding that arguments based on the ECHR were not open to the individual because the care home was not embraced by section 6, the House of Lords held that there was an important distinction to be drawn between the act of the local authority in making arrangements for the accommodation of the individual (which corresponded with the performance of a public function under the Act) and the subsequent actions of the care home in providing the accommodation under the terms of the contract (which had a commercial basis and thereby fell out with section 6(3) (b)). Although the minority in the House felt that the existence of, among other things, public funding and the wider public interest in the provision of care services meant that the care home should be regarded as performing a public function, the majority placed the activities of the care home squarely on the private law side of the public/private divide. Moreover, to the extent that it was acknowledged that this approach may lessen the scope for the protection of rights within the framework of the Act, the majority suggested that any extension of the Act was a matter for Parlia­ment rather than the courts. On the facts, the individual therefore retained public law rights only against the local authority.

[2.25] The specific effects of this judgment have since been reversed by legislation enacted at Westminster and which also applies in Northern Ireland.^[280] Nevertheless, the reasoning of the majority of the House of Lords has remained influential in the case law^[281] and it would suggest that, where cases raise issues under the Human Rights Act 1998, a more narrow approach to the meaning of �public authority’ should be adopted by Northern Ireland courts (that is, while the Northern Ireland courts are not formally bound by House of Lords/Supreme Court judgments in cases originating in England and Wales, such �precedents’ are typically followed in practice^[282]). However, less clear are the judgment’s analogical implications for judicial review cases that do not raise issues under the Human Rights Act 1998. Here, it is arguable that the broad approach of the Northern Ireland courts to the reach of judicial review should remain largely unaffected by YL, notwithstanding that the House of Lords judgment might be argued to have narrowed more generally the scope of �public law’ matters. In other words, while YL has reiterated that the existence of contract renders a matter one of private law, this says little about whether the broader �public interest’ test of amenability to review should, on its own terms, now be regarded as too expansive (on the test see [2.14]-[2.17]). At its highest, YL may therefore be decisive simply of the approach to be adopted when an application for judicial review arises in the context of contracting out, where there is already some Northern Ireland authority to indicate that judicial review will not lie.^[283]

The Northern Ireland Act 1998 and the Freedom of Information Act 2000

[2.26] Formal lists of public authorities can also be found in section 75 of the Northern Ireland Act 1998, as read with the Schedules to a number of other Acts^[284], and in section 3 of the Freedom of Information Act 2000, as read with Schedule 1 to the Act. Neither list is, in turn, closed, as each Act permits the relevant Secretary of State to amend the lists by order.^[285] This is perhaps in recognition of the fact that some public authorities may have been omitted from the original list. It undoubtedly also reflects the fact that public authorities in the modern era escape easy or comprehensive definition.

[2.27] If a body is listed in either the Northern Ireland Act 1998 or the Freedom of Information Act 2000, the body will of course be a public body and its public law decisions will in general be subject to judicial review (though likely not those decisions in respect of section 75 and the working of the 2000 Act themselves, as the Acts provide for alternative remedies and the courts will usually require that those are exhausted first^[286]). The fact that a body may be a public authority for the purposes of the Northern Ireland Act 1998 and/or the Freedom of Information Act 2000 does not, however, mean that all decisions that fall beyond the remedial structures of the Acts (or other legisla­tion) will be amenable to review. Such bodies may also make private law decisions—for example, in their capacity as employers—and such decisions will ordinarily fall on the private law side of the public/private divide ([2.10]-[2.13]). Inclusion in the Acts there­fore only answers the anterior question of whether a body’s decisions may sound in public law. The answer to the question of whether a decision does so sound will be found in the application of one or more of the source of power, nature of the issue, or public interest tests that are used by the courts ([2.07]-[2.17]).

PROCEDURAL EXCLUSIVITY AND EFFECTIVE ALTERNATIVE REMEDIES

[2.28] The above paragraphs have outlined the range of tests that are used to delimit the reach of judicial review. This section considers related case law on the consequences of making an application for judicial review when it transpires that the judicial review procedure is the wrong procedure. There are two main ways in which this can happen. The first is where the courts consider that a decision under challenge sounds only in private law, the above range of tests notwithstanding.^[287] Under those circumstances, the rule of procedural exclusivity as originally established in O’Reilly v Mackman^[288] meant that the applicant would have to �start over’ and bring private law proceedings. While the introduction of an �anti-technicality’ provision^[289] and increased judicial flexibility on matters of procedure have since reduced the impact of O’Reilly,^[290] the rule can still result in an applicant having to commence private law proceedings afresh. This can create obvious problems of expense, albeit that longer limitation periods and the absence of a leave requirement in private law proceedings will mean that the individual is not unduly prejudiced.

[2.29] The second circumstance that may render it wrong to use the judicial review procedure is where a matter is one of public law but where the applicant has an alterna­tive remedy through, for instance, tribunal proceedings or some other statutory means of recourse (such as an appeal on a point of law or by way of case stated). The basic position here is that judicial review should be regarded as a remedy of last resort and that individuals should avail themselves of the alternative remedy.^[291] While this has sometimes led the courts to emphasise that use of the judicial review procedure may result in them exercising their discretion to refuse a remedy and/or to impose sanctions in costs^[292]—the courts may also pre-empt such outcomes by setting aside a grant of leave^[293]—the requirement that the alternative remedy be used is subject to some impor­tant qualifications. These relate primarily to the need for the remedy to be effective and to the need to balance the costs and convenience of an application for judicial review against those involved in using the alternative remedy.^[294]

Procedural Exclusivity and the �Anti-technicality’ Provision

[2.30] The rule of procedural exclusivity introduced in O’Reilly v Mackman was intended to consolidate a public/private divide under which public law rights would be vindicated only by way of public law proceedings and private law rights by way of private law proceedings. The case arose when prisoners at Hull Prison brought private law proceedings for the purposes of obtaining declarations that decisions of the prison’s board of visitors had been made in breach of the rules of natural justice. In holding that the prisoners could not proceed by way of private law proceedings as the affected interests sounded in public law, Lord Diplock considered that it would �as a general rule be contrary to public policy and... an abuse of the process of the court to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities’.^[295] O’Reilly thus established that the judicial review procedure was not only intended to enable individuals to vindicate their public law rights; it was also intended to protect public law decision-makers by requiring individuals to observe statutory requirements of leave, delay, standing, and so on.^[296]

[2.31] It was to be recognised almost immediately that overly strict adherence to the rule in O’Reilly had the potential to work to the significant disadvantage of individu­als.^[297] The central criticism was that it may not always be clear to an individual when a matter is one of public law (the point can seen in the largely open-ended tests for amenability to judicial review, considered at [2.10]-[2.25]); and it was also noted that disputes may sometimes raise mixed issues of public law and private law and that this could in turn make choice of procedure difficult (for example, should judicial review always be available in such disputes, or should it be available only where the public law element is the dominant element?). Although such problems were in part alleviated in England and Wales by an �anti-technicality’ provision that allowed private law matters commenced by way of application to be continued as if begun by writ,^[298] the Rules of Court in Northern Ireland did not originally contain a comparable provision. This thus meant that applicants who ill-advisedly initiated judicial review proceedings in respect of a private law matter could be required to start private law proceedings afresh, not­withstanding the corresponding considerations of expense.^[299] The only apparent scope for flexibility was in those cases that raised mixed issues of public law and private law, as there were dicta here to suggest that the courts should be �slow to refuse to hear a claim in proceedings for judicial review where part of it is properly based on an issue of public law... to hear [such a] matter as an application for judicial review does [not do] any great violence to public policy’.^[300]

[2.32] Order 53, rule 9, as amended, does, however, now provide for the transfer of proceedings that have been erroneously commenced by way of application for judicial review.^[301] While this obviously works to the advantage of litigants, existing case law on the rule has made clear that transfer may not follow automatically. Much depends, instead, on judicial perception of the applicant’s objectives in bringing the proceedings, and the court may consider that the application is not suited to transfer even where the remedies sought include declarations, injunctions, and damages. Hence in Re Phillips’ Application^[302] Carswell LJ refused to allow proceedings to continue as if begun by writ because he considered that the application centred on the remedy of certiorari. Given the point, the judge considered that the applicant’s affidavit/pleadings would need to be substantially recast before they would be suited to private law proceedings (see further [2.11]-[2.12]).

[2.33] A related point about choice of procedure concerns the converse—and rare— circumstance where private law proceedings are initiated in respect of a public law matter (as in O’Reilly itself). Under these circumstances, the Rules of Court do not provide for transfer precisely because continuation of proceedings by way of application would be likely to run contrary to key aspects of the judicial review procedure, for instance, the requirement that applications be made �promptly and in any event within three months’.^[303] While it would follow from this that proceedings in respect of a matter that is solely one of public law would have to be dismissed, the position may be more complex where the proceedings raise mixed matters of public law and private law. Here, there is House of Lords authority to suggest that it may be possible to consider the point of public law as a collateral issue in the private law proceedings and, in that way, to avoid an over-rigid adherence to procedure at the expense of the merits of the individual’s case.^[304] This is an approach that has since been consolidated in England and Wales under the Civil Procedure Rules,^[305] and the Northern Ireland courts have also recognised the need for flexibility on questions of procedure when mixed issues of public and private law are in dispute^[306] (see [2.31]). So long as the private law element to the dispute is the dominant element, it may therefore be that the courts would not consider there to be any �abuse of process’ where mixed issue cases come before the courts by way of private law proceedings.^[307]

Effective Alternative Remedies

[2.34] The requirement that individuals pursue alternative remedies in preference to judicial review has both a constitutional and a practical underpinning (the alternative remedies will typically—though not always^[308]—be found in statute). In constitutional terms, the rationale is simply that, where statute provides for a remedy by way of, for example, tribunal proceedings or rights of appeal, that manifestation of legislative intent is to be prioritised.^[309] The corresponding practical justification focuses on the nature of the judicial review procedure as compared to other forms of procedure, and emphasises how the process and remedies available on review may be more limited than those available in tribunal proceedings (for instance). The judicial review procedure— considered in chapter three—is centred on a distinction between review and appeal that generally prevents the court from enquiring into the facts of a dispute and, moreover, offers only limited scope for awards of damages.^{[310] [311] In contrast, while the functions of tribunals vary according to the provisions of their underlying statutes, a tribunal may nevertheless be able to enquire into disputed facts, to resolve the issues according to its own assessment of the merits, and to award a remedy in damages (among others). In Re Kirkpatrick’s Application117 Kerr J thus dismissed an application for judicial review of the Lough Neagh Fishermen’s Co-operative Society’s decision to refuse the applicant a licence for eel fishing. Although the judge accepted that the matter was one of public law (see [2.15]), he considered that the live issue was discrimination and that the matter would thereby better and more effectively be pursued before the Fair Employment Tribunal under the terms of the Fair Employment and Treatment (Northern Ireland) Order 1998.[312] The judge also accepted that the court in review proceedings would, in any event, likely refrain from granting an order of mandamus to compel that a licence be given. This was both because it was probable that the court would be unable to conclude that �but for’ the discrimination the applicant would have been allowed a licence, and also because the court would be slow to order the grant of a licence when this could have repercussions for other candidates for licences who had superior claims to that of the applicant.[313]}

[2.35] There are, however, exceptions to the rule on alternative remedies and these centre upon the need for the remedy to be effective¹³⁰ and efficient in terms of cost and convenience. The leading authority on the point is Re Ballyedmond Castle Farm Ltd’s Application; Re DPP for Northern Ireland’s Application.¹³¹ The issue here was whether the Director of Public Prosecutions (DPP) should be allowed to use judicial review to challenge a magistrate’s decision to award costs against the DPP, notwithstanding that the Magistrates’ Courts (Northern Ireland) Order 1981¹³² provided for an appeal on a â€?point of law involved in the determination of the proceeding’ by way of case stated.¹³³ The DPP argued that there had been recourse to judicial review only because it was unclear whether costs constituted â€?a point of law involved in the determination of the proceeding’ and because failure to use judicial review first could result in a subsequent application being dismissed as outside the judicial review time-limit. In finding that judicial review should be available on the facts of the case, the High Court noted the need for flexibility on matters of procedure in the light of all the interests to be affected by the proceedings. While the court emphasised that each case should be considered individually and in context, it identified guidelines to aid courts in deciding whether to require that an alternative remedy be pursued. Principal among these were that a court should look for â€?special circumstances’ before allowing judicial review to be used ahead of an alternative statutory remedy; that the court should recognise that there a number of factors that may constitute â€?special circumstances’ and be astute not to abdicate its supervisory role; and that, in deciding what is the most efficient and convenient means to resolve a dispute, the court should have regard not only to the interests of the applicant and respondent, but also to the wider public interest in the overall working of the legal system. It was, moreover, suggested that a court should consider the scope of the enquiry needed to resolve a dispute effectively (for instance, whether fact-finding would be better carried out by an alternative tribunal) and also whether the expense of the alternative remedy and/or delay may constitute special circumstances.¹³⁴

Satellite Litigation

[2.36] One final point related to the issue of alternative remedies concerns a judicial aversion towards â€?satellite litigation’.¹³⁵ This term is used to refer to the circumstance

have been challenged by way of case stated); and Re Gribbon' Application, 11 July 1990, unreported (chal­lenge to a school’s refusal to admit a pupil: application dismissed for other reasons, with Carswell J stating that tribunal proceedings would have been more effective).

¹³⁰ See, eg, R v Chief Constable, ex p McKenna [1992] NI 116 (individual arrested by the police was entitled to bring review proceedings to challenge a decision to delay access to his solicitor: while the Crown Court had power to exclude any confession made by a suspect who had been wrongfully prevented from consulting with his solicitor, such a remedy might well be inadequate and ineffective because an arrested person could, among other things, be kept in custody awaiting trial because of an unlawfully obtained confes­sion when he might otherwise have been released).

¹³¹ [2000] NI 174, noted in, eg, Re Hughes’ Application [2006] NIQB 27, para 7, Deeny J; Re C' Applica­tion for Leave [2009] NIQB 26, para 18, Morgan J; and Re Walker’s Application [2013] NIQB 12, para 7, Horner J.

¹³² SI 1981/1675 (NI 26).

¹³³ Art 146.

¹³⁴ [2000] NI 174, 178-9, quoting M Belhoff and H Mountfield, â€?There is no Alternative’ [1999] JR 143. For further consideration of the guidelines see, eg, Re Smyth’s Application [2001] NI 393, 399-400.

¹³⁵ See, eg, Re McRandal' Application [2012] NICA 22, para 25; Re McCann’s Application [2013] NIQB 18, para 2, McCloskey J. where an individual who is involved in other proceedings—for instance, criminal or disciplinary—seeks to raise an issue of public law relevant to those proceedings by way of an application for judicial review. The existing case law has emphasised that it is only in â€?exceptional circumstances’^[314] that judicial review should be used in this way and that public law issues should, where possible, be dealt with within other forums that are suited to their resolution. In the criminal context, the courts have thus stated that issues should ordinarily be dealt with at trial or on appeal as this will avoid undue delay in the conduct of criminal proceedings;^[315] and it has been said that issues in disciplinary proceedings should be addressed through those proceedings and any avail­able appeal before an application for judicial review is considered.^[316] On the other hand, it has also been acknowledged that earlier review proceedings may be appropriate where the disputed issue is fundamental to a particular disciplinary structure^[317] and, by analogy, the workings of the criminal system. Under those circumstances, the point of law to be resolved may be of much wider relevance.

[2.37] The courts’ aversion towards satellite litigation has also been seen in recent case law on coroners’ courts. Although earlier dicta on coroners’ courts had already noted that judicial review should be available only exceptionally^[318], the practical reality was that the review of coroners’ decisions—whether taken before, during, or after an inquest—had become a commonplace in the case law.^[319] In a return to the logic of earlier authority, the Court of Appeal has now limited the scope for review by under­lining the breadth of discretion that coroners enjoy in the conduct of inquests and by emphasising that the High Court should avoid becoming a de facto appellate forum. The Court’s ruling on these points was contained in the important case of Re C & Ors Application,^[320] which arose out of a coroner’s inquest into the controversial death of unarmed IRA member Pearse Jordan who was shot dead in 1992 by undercover members of the RUC.^[321] The case had already generated much case law in the UK courts and before the European Court of Human Rights,^[322] and Re C was a composite appeal challenging a range of decisions that the coroner had taken in relation to anonymity for police officers. While the Court of Appeal acknowledged that review of a decision may be necessary where the decision had implications for the substantive right to life of witnesses at common law and/or under Article 2 ECHR—ie the police officers—it held that the position was different where the relatives of the deceased wished to challenge a decision as contrary to adjectival, or procedural, rights under Article 2 ECHR. As Girvan LJ explained:

In his conduct of the inquest the coroner will be called on from time to time to make procedural rulings. Unless it is apparent that a procedural ruling should not have been made the High Court exercising its supervisory jurisdiction should not intervene. It is not the function of the High Court to micromanage an inquest or to act as a forum for a de facto appeal on the merits against a coroner’s procedural ruling. A coroner will have only acted unlawfully if he has exceeded the generous width of the discretion vested in him to regulate the inquest in the interest of what he considers to be a full, fair and fearless inquiry. The coroner will have much greater awareness of the issues involved and the evidence likely to emerge in the course of the inquest. He must, accordingly, be accorded a wide margin of appreciation and the High Court must recognise that aggrieved parties alleging procedural unfairness will have an ultimate remedy at the end of the inquest if there is a case that the verdict should be quashed because the inquest has fallen short of proper standards to such an extent as to call into question the lawfulness of the resultant verdict. Any other approach would encourage the proliferation of wholly undesirable judicial review challenges to coroner’s procedural rulings in the course of an inquest.^[323]