It is commonplace to say judicial review is a remedy of last resort and in particular that if there is an adequate alternative remedy that is or was available to a claimant, permission to bring proceedings will normally be refused.

However, the grant of permission is a discretionary decision for the court and the availability of an alternative remedy is not an absolute bar – and permission may be granted if there are “exceptional circumstances”.

A recent decision of the Administrative Court – R oao MRH Solicitors Ltd v The County Court sitting at Manchester [2015] EWHC 1795 Admin – illustrates just how exceptional those circumstances have to be.

The MRH case

The MRH case was a personal injury claim in which MRH acted on behalf of the claimant. The claim arose out of a motor accident and the principal defence to the claim was that the accident had been staged by the claimant driver and that consequently the claim was fraudulent.

After a four day trial the Recorder upheld the defence – but in his ex tempore judgement went further: he found that MRH were a party to the fraud (along with a car hire company and a car storage company).

Understandably MRH were dismayed by this – they had not been a party to the proceedings and so had not had any chance to present evidence to rebut any allegations against them. In fact there were no allegations against them - in the defence in which fraud had been alleged it was expressly alleged only against the claimants and not anyone else and in evidence one of the defendant’s witnesses expressly confirmed that no allegation of fraud against MRH was being made.

MRH sought, unsuccessfully, to persuade the Recorder not to finalise the official transcript of his judgment and then brought judicial review proceedings in which it was claimed that there had been a breach of natural justice which had resulted in MRH’s integrity being impugned unfairly.

In the judicial review claim MRH asserted that since it had not been party to the county court proceedings, it could not appeal the Recorder’s decision and so had no alternative remedy. The Administrative Court disagreed. It found (and said that this is what should happen if ever similar circumstances arose in the future) that MRH could have applied to be joined as a party to the proceedings (CPR r19.2 and r19.4) and then applied to the Recorder to remove the offending passages from the official transcript of his judgment. A refusal of either application by the Recorder would have created the possibility of an appeal to the High Court.  There was therefore an alternative remedy.

The Court nevertheless decided that it would not exercise its discretion to refuse to hear the judicial review application. There were three principal reasons for this: first, because the finding of fraud was so serious; second, because the unfairness to MRH was “particularly egregious”; and third, because the alternative remedy that the Court had found was not an obvious one – it was described in the judgment as a “(theoretical) alternative remedy”.

The Court went on to hear the judicial review claim and found in MRH’s favour. The availability of an alternative remedy then got a second life – MRH sought costs against the County Court but this was refused because MRH could have dealt with the issues in a way that avoided the need for judicial review.

Conclusion

The decision on MRH does not create any new law but shows that in an extreme case – in particular one where the underlying merits of the claim are so strong – the suitable alternative remedy barrier to bringing judicial review proceedings can be overcome.