[2024] UKUT 127 (AAC)

Dr Kirkham did not have a persuasive answer to any of Mr Davidson’s three reasons.

As to the first reason, it is axiomatic that judicial review is a remedy of last resort and as such permission to apply for judicial review will usually be refused where there is an adequate alternative remedy (MRH Solicitors Ltd v Manchester County Court [2015] EWHC 1795 (Admin) at [18]). As Lord Templeman once put it, the default position is that "Judicial review process should not be allowed to supplant the normal statutory appeal procedure” (R v Inland Revenue Commissioners ex p Preston [1985] AC 835 at 862). The general principles governing alternative remedies to judicial review were helpfully summarised by the Court of Appeal in R (Watch Tower Bible & Tract Society of Britain) v Charity Commission [2016] EWCA Civ 154 at [19]:

I interpose here that it is important to be clear about the nature of the adequate alternative remedy with which we are concerned. In this context it is not about whether Dr Kirkham has an alternative route to securing a set aside of the FTT decisions in the 11 cases. Rather, the question is whether, other than an application for judicial review, he has an adequate alternative remedy to challenging the decision of Judge O’Connor dated 18 April 2023. The short point is that Judge O’Connor made a decision with respect to which Dr Kirkham had the right of appeal to the Upper Tribunal, subject to permission being granted in the normal way (and subject to the possibility of the proceedings being struck out).

As to the second reason for refusing permission to apply for judicial review, relating to standing, Mr Davidson was careful to eschew the language of the “meddlesome busybody” (R v Monopolies and Mergers Commission ex p Argyll Group plc [1986] 1 WLR 763 at 773H). However, I accept the central thrust of his submission, namely that while Dr Kirkham may well be interested in (in the sense of curious about) the 11 cited cases, he does not have an interest properly so-called in the underlying cases. Put very simply, he has nothing to do with them and they have nothing to do with him. Dr Kirkham’s repeated protestations that he was not a “meddlesome busybody” but rather had been ”dragged into” (his words) the proceedings at the request of other litigants lacked evidential coherence and cannot disguise the absence of any such proper interest. Dr Kirkham also seeks to argue that standing should be determined at trial of the substantive application for judicial review. However, that submission is to overlook the two-stage approach to standing in judicial review proceedings as identified in R v Monopolies and Mergers Commission ex p Argyll Group plc. It also fails to recognise that the presence of an adequate alternative remedy by way of a statutory appeal means that arguments about standing do not and cannot take Dr Kirkham any further forward.

As to the third reason, Dr Kirkham argued that Mr Davidson’s approach involved an “unnatural reading” of the Practice Direction. If I understood Dr Kirkham correctly, his submission was that Mr Davidson’s reading meant that if somebody somewhere could appeal the disputed decision, then nobody else could bring proceedings for judicial review “which makes no sense at all”. I need not resolve the Practice Direction point given the strength of Mr Davidson’s first two reasons. In particular, the fact of the matter is that Dr Kirkham has an alternative remedy, namely his right of appeal against the FTT’s decision of 18 April 2023. The fact that that application for permission to appeal has no prospects of success is neither here nor there. It follows that the application for permission to apply for judicial review must be refused.