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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
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Cite as:  NIQB 2
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1. In this application Ballyedmond Castle Farms Limited (Ballyedmond) seeks to set aside the order of Kerr J made on 6 January 2000, whereby he granted leave to the Director of Public Prosecutions for Northern Ireland (the DPP) to apply for judicial review of a decision of a resident magistrate Mr Paul McRandal, made on 19 November 1999, ordering the DPP to pay costs totalling £14,919.00 plus VAT to Ballyedmond following the dismissal of a summary prosecution brought against it under the Water Act (Northern Ireland) 1972 for discharging polluting matter into a waterway.
2. It is not necessary for us in this judgment to examine the circumstances of the dismissal of the prosecutor's complaint against Ballyedmond or the correctness of the magistrate's order for costs. The sole issue before the court is whether the grant of leave should be set aside on the ground that the DPP could have tested the magistrate's order by requesting him to state a case for the opinion of the Court of Appeal on a question or questions of law, under Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (the 1981 Order).
3. It has been clearly established in a series of cases that the court has power, either under RSC (NI) Order 32, rule 8 or its inherent jurisdiction, to set aside a grant of leave to apply for judicial review: see the cases discussed in Re Savage's Application  NI 102 at 106-7. It has consistently been held, however, that it requires a very clear case and that the power should be exercised very sparingly. We respectfully agree with the observations of Bingham LJ in R v Secretary of State for the Home Department, ex parte Chinoy (1991) 4 Admin LR 457 at 462, where he said:
5. A magistrates' court may order the prosecutor to pay the costs of a defendant who has been acquitted, in exercise of the power conferred by section 3 of the Costs in Criminal Cases Act (Northern Ireland) 1968. The amount payable under such an order is governed by the Magistrates' Courts (Costs in Criminal Cases) Rules (Northern Ireland) 1988, as amended by the 1994 Rules. The application of those rules by a magistrates' court may involve questions of law in respect of which an application for judicial review may be entertained in this court -- see our recent decision in Re Caffrey's Application (2000, unreported). There is no provision either in the 1968 Act or in the 1981 Order for an appeal by either party against the making of such an award or against the amount ordered. An appeal against an order for the payment of costs by a defendant does not lie to the county court, being excepted from appeals against sentence by virtue of Article 140(2)( b) of the 1981 Order. If the matter is to be tested, it has to be either by judicial review or by invoking the case stated procedure contained in Article 146(1) of the 1981 Order, which provides:
6. It has not been settled whether an award of costs is capable of giving rise to a point of law "involved in the determination of the proceeding", but for the purposes of the present application we are prepared to assume that it would be so capable.
7. On this assumption we must examine the proposition advanced by Mr Larkin on behalf of Ballyedmond that the court must exercise its discretion to refuse to entertain the DPP's application for judicial review because of his failure to avail himself of that alternative remedy by way of case stated. Ballyedmond must establish that the prospect of the court granting the application for judicial review is in the circumstances of the case so small that the only right and proper course is to stop the judicial review proceedings now by setting aside the grant of leave. It tends to be assumed that an applicant's failure to resort to an alternative remedy open to him will almost inevitably result in the rejection of an application for judicial review. On examination, however, it may be found that the principles governing the exercise of the court's discretion are less rigid and draconian and that a degree of flexibility exists which allows the court to take into account a number of factors in its decision.
8. The traditional rule is that although the court may retain its jurisdiction to grant an application for judicial review, where a statutory machinery or other alternative remedy is available the alternative should be pursued, save in exceptional circumstances. In R v Epping and Harlow General Commissioners, ex parte Goldstraw  3 All ER 257 at 262 Sir John Donaldson MR expressed the rule in strong terms:
10. Both of these decisions were in tax cases, where the most appropriate method of appeal in the great majority of cases is to the General or Special Commissioners, who have specialist knowledge and experience of taxation law and practice. The same approach may be found in other areas where the same considerations apply, eg in the field of immigration ( R v Secretary of State for the Home Department, ex parte Swati  1 All ER 717).
11. There also has to be a real alternative open to the applicant. So if it is not clear whether the suggested alternative route is indeed available to him, the court would be likely to decline to exercise its discretion against him if he has elected to invoke the clearly established jurisdiction in judicial review.
12. The trend of modern authority is to be more ready to look at the balance of cost and convenience between an application by judicial review and resort to an alternative remedy: see, eg, R v Huntingdon District Council, ex parte Cowan  1 All ER 59 at 63, per Glidewell J. That approach was expressed in paragraphs 14 and 15 of a valuable article by Beloff and Mountfield in  JR 143, in which the learned authors attempted the same type of principled analysis (the general dearth of which is lamented in Supperstone and Goudie , Judicial Review , 2 nd ed, p. 15.27) as was made in the context of immigration cases by Laws J in R v Secretary of State for the Home Department, ex parte Capti-Mehmet  COD 61. They considered the case-law and referred to the effect of the new Civil Procedure Rules:
14. We do not propose to rule finally on how the discretion should be exercised in the present application for judicial review, because the facts can always appear in a different light at a later stage of a case, and we do not wish to fetter the discretion of the court when it hears the substantive application. It is sufficient for us to say at this stage that it is far from being clearly established that the court must exercise its discretion against the DPP because he did not seek to proceed by way of case stated. He was unable to assume with confidence that that remedy would have been open to him, and if it had transpired that it was not he would then have been out of time to apply for judicial review. By the same token, if his application for judicial review is dismissed in the exercise of the court's discretion, he will be out of time to seek a case stated, a factor which cannot be disregarded where there is any uncertainty as to the proper method of proceeding. There is no particular advantage in respect of costs in the case stated procedure and a certain amount of unavoidable delay and expense is involved in the process of obtaining a case stated. There is no apparent detriment to Ballyedmond in having the issue determined in this court rather than by way of case stated in the Court of Appeal, and there is a considerable public interest in dealing with it promptly and without further cost and delay.
15. For these reasons we consider that there is a substantial case to be made on behalf of the DPP that the court should not dismiss the substantive application for judicial review on the ground that the DPP elected not to seek a case stated. In these circumstances Ballyedmond has in our view fallen very far short of establishing a case of the requisite strength for setting aside a grant of leave to apply for judicial review. Its application will therefore be dismissed.