ALTERNATIVE REMEDIES TO JUDICIAL REVIEW

Generally, any alternative remedies should be exhausted before resorting to judicial review in cases where the alternative remedy is adequate to resolve the complaint (R v Sandwell Metropolitan Borough Council, ex parte Wilkinson (1998) 31 HLR 22). Although the jurisdiction of the court to grant relief by way of judicial review is not ousted by the existence of an alternative remedy, it may exercise its discretion to refuse relief, refuse to grant permission or adjourn the case until after the alternative remedy has been used.

Where there is an alternative remedy available that is more suitable, a judicial review will not be permitted to continue in the Administrative Court. For example, where a matter concerning the lawfulness of the arrest and detention of various individuals cold have instead been brought in private law as false imprisonment, and where there were complex factual issues and disputes of fact involved which were wholly inappropriate for judicial review proceedings, the matter should have been addressed in an ordinary Queen’s Bench claim (Sher v Chief Constable of Manchester [2010] EWHC 1859 (Admin), [2011] 2 All ER 364).

A number of cases have indicated that judicial review is to be regarded as a remedy of last resort. For example, permission to apply for judicial review of a decision of the Law Society was set aside because of the existence of an alternative remedy in the form of an appeal to the Master of the Rolls (R v Law Society, ex parte Kingsley [1996] COD 59); permission to apply for judicial review was set aside where a claimant had a statutory right of appeal to the Secretary of State under the Town and Country Planning Act 1990, s. 78, against a grant of planning permission subject to conditions (R v Secretary of State for the Home Department, ex parte Watts [1997] COD 152); judicial review of a decision of the Customs and Excise Commissioners was refused because the claimant should have invoked a statutory right of recourse to a value added tax and duties tribunal (R v Commissioners of Customs and Excise, ex parte Bosworth Beverages Ltd (2000) The Times, 24 April 2000); judicial review of a decision of the Secretary of State for the Home Department to issue a notice of liability to a civil penalty under the Immigration and Asylum Act 1999, s. 35, was refused on the basis that the claimant’s remedy was to defend civil proceedings brought by the Home Secretary after the expiry of the time prescribed for payment of the penalty (R (Balbo B & C Auto Transporti Internazionali) v Secretary of State for the Home Department [2001] EWHC 195 (Admin), [2001] 1 WLR 1556); a challenge to the service of prohibition notices by the FSA should have been by way of appeal to the Financial Services and Markets Tribunal rather than by way of judicial review (R (Davies) v Financial Services Authority [2003] EWCA Civ 1128, [2004] 1 WLR 185).