In appropriate cases, the court can exercise that jurisdiction by declining relief. Where there is an adequate alternative remedy, the exercise of that power is discretionary not obligatory. Circumstances may justify granting the relief sought. For various reasons, the applicant's choice of the judicial forum may be an appropriate one.
24 Perhaps the most important example of that kind of case is where the decision complained of is an administrative one and the applicant raises a significant question of law or jurisdiction, one not involving issues of disputed fact and of a kind that can only be finally determined by a court of law. In such a case, it may be appropriate, despite the existence of an adequate alternative remedy, for the question to be determined and, if appropriate, for relief to be granted.[15]
25 This is not because the alternative review body may lack the jurisdiction to consider legal and jurisdictional questions, for the statutory authority of review tribunals may extend that far, even if the questions go to their own jurisdiction, although their decisions on such matters cannot be final.[16] Rather it is because it might be cheaper, faster and more convenient, and also save the costs of what might be an inevitable appeal, for the court to hear and determine the question.
26 Turning now to the present case, the Legal Aid Act makes provision for first instance decisions (s 28), reconsiderations (s 34) and independent reviews (s 36). Decisions concerning applications for legal aid, including the terms on which aid will be granted and the lawyers by whom the aid will be provided, come within this mechanism. On reconsideration, the decision-maker must "reconsider the decision and may confirm vary or review the decision."[17] The independent reviewer has the same power.[18] This is a complete power of review - a power to make the "correct or preferable" decision on the merits, on additional materials if the applicant wishes, unconstrained by decisions made lower down in the hierarchy.[19] Thus there are no limitations on the internal review mechanism created by the Legal Aid Act. Reviews can be carried out as cheaply, quickly and thoroughly as possible. This being so, the internal review mechanism is plainly an adequate alternative remedy in respect of decisions concerning the provision of legal aid. Parliament has enacted that mechanism in the expectation it will be followed.
27 Therefore an applicant who complains about a decision made under the Legal Aid Act must normally exhaust their internal review rights before coming to court. Where this is not done, unless there is something in the nature or circumstances of the case to justify granting relief by way of judicial review, and even if a ground of judicial review is clearly established, I think the discretion to refuse relief should be exercised against the applicant. If the applicant does not first exhaust their internal review rights, the court may refuse to grant relief at the final hearing. If the existence of such a right is established, the court also may stop the proceeding at an early stage,[20] although, because refusing relief is an exercise and not a denial of the court's jurisdiction, and because of the nature of the discretionary and other issues typically raised in such cases, the specification of a preliminary question will often if not usually be the more appropriate method.[21]
28 In the present case, Mr Kwan's claim is that VLA demonstrated apparent bias in the circumstances I have explained, and I have upheld that claim. But there is no reason to think the VLA's internal review process will operate improperly hereafter. He should get a full and proper review on the merits under that process. There would have to be some other reason for keeping the applicant's judicial review application alive rather than leaving him to his rights of internal review under the Legal Aid Act.
29 There is one consideration that might count in the balance against exercising the discretion to refuse to grant relief. The decision-making structure in the Legal Aid Act consists of three potential stages: first instance, reconsideration and independent review. The expectation of the Act is that applicants will be treated fairly and on the merits at each stage. If they are denied natural justice at the first, for example, and the court denies relief because they can access the second, they effectively lose their right to a proper decision at the first. As an English judge once put it in a case about union rules: "If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal?"[22]
30 This is not a weighty consideration in the present case nor, perhaps, in many others. The discretion may be exercised where there is an adequate alternative remedy; that is its very basis. To refuse relief to an applicant who has such a remedy would necessarily deny them the right to challenge the lower decision and to claim relief restoring them to their former position in the decision-making hierarchy. In most cases, therefore, I would think the nature of the discretion itself supplies an answer to the judge's question.
31 I do not reject the possibility that in some extreme cases this consideration may have more significance. For example, the courts occasionally see flagrant and serious breaches of the rules of natural justice and errors of law or jurisdiction associated with contumelious administrative conduct, such as bad faith. In cases of that kind, it can be said that the decision-making process has fundamentally miscarried. The discretion to refuse relief is based on the expectations of Parliament. But Parliament expects both the decision-making to be proper and the internal review mechanism to be taken up. Where the former has been absolutely thwarted, it may be totally insufficient to point to the latter. This is a consideration that might - I say no more than that - lead the court to decline to exercise the discretion to refuse relief, depending on the other circumstances. That would leave the court free to grant relief restoring an applicant to the position they were in before the defective decision was made.
32 In the present case there is no significant question of law or jurisdiction that the court should determine. The error committed was apparent, not actual, bias and there is nothing in the decision-making process that deserves the Court's reproach. The issues in and circumstances of the case do not suggest that the court is the proper forum for determining the issues that have arisen. The applicant has simply elected not to exercise his internal review rights. Against that, I think the court should set its face. The applicant should be left with the rights of internal review that the Legal Aid Act has provided. In the exercise of the court's discretion, I therefore refuse to grant the relief sought.