CA-2025-001983 - [2025] EWCA Civ 1311

The decision or measure under challenge in the present case is the Order made by the Secretary of State in the exercise of the power conferred by section 3(3)(a) of the Act to “add an organisation to Schedule 2”. It is said that that exercise of power was unlawful in public law terms as it involved breaches of the recognised principles of public law governing the exercise of statutory power or was contrary to section 6 of the HRA as it was incompatible with certain Convention Rights. The remedy sought is a quashing order to quash, or set aside, the Order.

A claim for judicial review in the Administrative Court is available to ensure that public bodies act in accordance with relevant principles of public law or the HRA. The Secretary of State does not submit that the jurisdiction of the Administrative Court to entertain claims for judicial review of orders made pursuant to section 3(3) of the Act had been removed or ousted in any way. Indeed, the Secretary of State accepts that, in an appropriate case, judicial review of such an order would be available.

A court may in its discretion refuse to grant permission to apply for judicial review, or may refuse a remedy at a substantive hearing, if an adequate alternative remedy exists but the claimant has failed to use it. The courts have developed a general principle that an individual should normally use alternative remedies where these are available rather than judicial review. The principle applies where Parliament has provided for a statutory procedure for dealing with challenges to particular categories of decisions. In such cases, the individual will be expected to use the statutory procedure unless there are exceptional circumstances justifying the use of judicial review. The courts may take the same approach where there are other methods available which are adequate, or equally convenient and effective means of challenging a particular decision.

The principle has been consistently recognised by the courts over many years. Sir John Donaldson MR observed in 1983 that “the judicial review jurisdiction will not be exercised where other remedies were available and have not been used” (see R v Epping and Harlow General Commissioners ex p. Goldstraw [1983] 3 All ER 257 at 262). More recently, Lord Dyson MR expressed the principle in the following way in the Watch Tower case:

“19.

These principles are not in dispute and can be summarised briefly. If other means of redress are “conveniently and effectively” available to a party, they ought ordinarily to be used before resort to judicial review: per Lord Bingham of Cornhill in Kay v Lambeth London Borough Council [2006] 2 AC 465, para 30. It is only in a most exceptional case that a court will entertain an application for judicial review if other means of redress are conveniently and effectively available. This principle applies with particular force where Parliament has enacted a statutory scheme that enables persons against whom decisions are made and actions taken to refer the matter to a specialist tribunal (such as the First-tier Tribunal (General Regulatory Chamber) (Charity)). To allow a claim for judicial review to proceed in circumstances where there is a statutory procedure for contesting the decision risks undermining the will of Parliament…”

The scope and application of that principle was considered by the Court of Appeal in Glencore. The case concerned the provisions for levying a tax called diverted profits tax. The legislation introducing the tax made detailed provision for the procedures to be followed when HMRC was considering whether to make a charge for diverted profits tax. That included provision for issuing a preliminary notice and representations and a decision on whether to issue a charging notice. The taxpayer had to pay the tax within 30 days. He could however seek a review, and the taxpayer had 30 days from the end of the review period to appeal to the First-tier Tribunal (see [1]). The taxpayer sought judicial review contending that an appeal to the First-tier Tribunal was not an adequate and effective remedy as the taxpayer had to pay the tax after the notice was served, and would be out of the money for the period of the review and whilst any appeal was pending. Sales LJ, with whom Singh and Gloster LJJ agreed, analysed the operation of the principle in the following terms:

“54.

In order to evaluate these submissions, it is necessary to consider the basis for the suitable alternative remedy principle. The principle does not apply as the result of any statutory provision to oust the jurisdiction of the High Court on judicial review. In this case the High Court (and hence this court) has full jurisdiction to review the lawfulness of action by the Designated Officer and by HMRC. The question is whether the court should exercise its discretion to refuse to proceed to judicial review (as the judge did at the permission stage) or to grant relief under judicial review at a substantive hearing according to the established principle governing the exercise of its discretion where there is a suitable alternative remedy.

55.

In my view, the principle is based on the fact that judicial review in the High Court 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. However, since it is a matter of discretion for the court, where it is clear that a public authority is acting in defiance of the rule of law the High Court will be prepared to exercise its jurisdiction then and there without waiting for some other remedial process to take its course. Also, in considering what should be taken to qualify as a suitable alternative remedy, the court should have regard to the provision which Parliament has made to cater for the usual sort of case in terms of the procedures and remedies which have been established to deal with it. If Parliament has made it clear by its legislation that a particular sort of procedure or remedy is in its view appropriate to deal with a standard case, the court should be slow to conclude in its discretion that the public interest is so pressing that it ought to intervene to exercise its judicial review function along with or instead of that statutory procedure. But of course it is possible that instances of unlawfulness will arise which are not of that standard description, in which case the availability of such a statutory procedure will be less significant as a factor.

56.

Treating judicial review in ordinary circumstances as a remedy of last resort fulfils a number of objectives. It ensures the courts give priority to statutory procedures as laid down by Parliament, respecting Parliament’s judgment about what procedures are appropriate for particular contexts. It avoids expensive duplication of the effort which may be required if two sets of procedures are followed in relation to the same underlying subject matter. It minimises the potential for judicial review to be used to disrupt the smooth operation of statutory procedures which may be adequate to meet the justice of the case. It promotes proportionate allocation of judicial resources for dispute resolution and saves the High Court from undue pressure of work so that it remains available to provide speedy relief in other judicial review cases in fulfilment of its role as protector of the rule of law, where its intervention really is required.

57.

In my judgment the principle is applicable in the present tax context. The basic object of the tax regime is to ensure that tax is properly collected when it is due and the taxpayer is not otherwise obliged to pay sums to the state. The regime for appeals on the merits in tax cases is directed to securing that basic objective and is more effective than judicial review to do so: it ensures that a taxpayer is only ultimately liable to pay tax if the law says so, not because HMRC consider that it should. To allow judicial review to intrude alongside the appeal regime risks disrupting the smooth collection of tax and the efficient functioning of the appeal procedures in a way which is not warranted by the need to protect the fundamental interests of the taxpayer. Those interests are ordinarily sufficiently and appropriately protected by the appeal regime. Since the basic objective of the tax regime is the proper collection of tax which is due, which is directly served by application of the law to the facts on an appeal once the tax collection process has been initiated, the lawfulness of the approach adopted by HMRC when taking the decision to initiate the process is not of central concern. Moreover, by legislating for a full right of appeal on fact and law, Parliament contemplated that there will be cases where there might have been some error of law by HMRC at the initiation stage but also contemplates that the appropriate way to deal with that sort of problem will be by way of appeal.

58.

For reasons of this kind it has long been established at the highest level that “Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision”: In re Preston [1985] 1 AC 835, 852D per Lord Scarman; see also p. 852F (“I accept that the court cannot in the absence of special circumstances decide by way of judicial review to be unfair that which the commissioners by taking action against the taxpayer have determined to be fair” [emphasis in original]); and p. 862B-F per Lord Templeman, with whom the other members of the appellate committee agreed (“Judicial review process should not be allowed to supplant the normal statutory appeal procedure”; unless the circumstances are exceptional and involve an abuse of power of a serious character, as explained at pp. 864F-H and 866G-867C). In that case, the allegation was that the Inland Revenue Commissioners had made a promise not to collect tax in certain circumstances (i.e. had created what would today be called a legitimate expectation not to collect an amount of tax), and although the allegation was not made out the House of Lords was prepared to accept that such a claim could be made by way of judicial review. In fact, the tax appeal process would have been incapable of dealing with such a claim of unlawfulness on the part of the commissioners, which did not go to the merits of whether the criteria for imposition of tax were or were not met (a subject fit for examination on appeal) but rather to enforcement of fundamental rule of law standards against the commissioners if they had in fact made a promise not to initiate the tax collection process in the first place.

59.

In my view, Preston provides relevant guidance in the present case. Apart from the review procedure under section 101 FA 2015, the statutory context here is a typical one of assessment by the HMRC of a taxpayer to tax with the taxpayer having a right of appeal against that assessment on the merits. There is nothing exceptional about the nature of the objections which GENUK has raised in relation to the Charging Notice.”

In other words, that case involved a situation where Parliament had specifically provided that a particular procedure (review and appeal) be used to challenge notices of liability to a particular tax, and provided that the tax would be payable pending the outcome of that procedure. Unless there were exceptional circumstances to differentiate the particular case from those which were intended by Parliament to be dealt with using the statutory procedure, judicial review would not be appropriate.

That understanding of the scope of principle and the case law is reflected at [51] of the decision of the Supreme Court in Re McAleenon where Lord Sales and Lord Stephens, with whom the other members of the Court agreed, said:

“51.

Where Parliament has enacted a statutory scheme for appeals in respect of certain decisions, an appeal will in ordinary circumstances be regarded as a suitable alternative remedy in relation to such decisions which ought to be pursued rather than having resort to judicial review: Glencore Energy, above, paras 55–58; Watch Tower Bible & Tract Society, above, para 19. Otherwise, use of judicial review would undermine the regime for challenging decisions which Parliament considers to be appropriate in that class of case.”

A similar approach can be seen in the decision of the Supreme Court in The Father v Worcester County Council [2025] UKSC 1; [2025] 2 WLR 155 where Lord Sales said:

“82.

However, it is well established that judicial review will only be granted if there is no suitable alternative remedy: Sharma v Brown-Antoine, para 14; In re McAleenon [2024] 3 WLR 803, paras 50–64. Where there is a statutory right of appeal in respect of an order, that is regarded as a suitable alternative remedy (save in exceptional circumstances) and will operate as a defence to a claim in judicial review to challenge the order in issue: McAleenon, para 51; R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] 1 WLR 2625, para 19 and R (Glencore Energy UK Ltd) v Revenue and Customs Comrs [2017] 4 WLR 213, paras 55–58 . Therefore, if the individual wishes to challenge the detention order in circumstances where there is a right of appeal, they are obliged to do so by way of appeal and are precluded from doing so by judicial review. Although not usually described as such, the suitable alternative remedy rule is a form of abuse of process doctrine. It means that the judicial review procedure cannot be used inappropriately, ie where there is another suitable remedy available.”