The respondent made the following argument: the internet provider targeted by the enforcement notice had a statutory right of appeal; the record companies could be joined to that appeal; therefore, the record companies should not be permitted to seek judicial review of the enforcement notice. The following issue arose: does an applicant for judicial review possess an adequate alternative remedy if another person could take an appeal to which the applicant could be joined?
Clarke J. laid out the general rule that alternative remedies must be exhausted before a party seeks judicial review. But he also noted that there are exceptions to the general rule:
4.8 Thus the overall approach is clear. The default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings. The reason for this approach is, as pointed out by Hogan J. in Koczan, that it must be presumed that the Oireachtas, in establishing a form of statutory appeal, intended that such an appeal was to be the means by which, ordinarily, those dissatisfied with an initial decision might be entitled to have the initial decision questioned.
4.9 However, there will be cases, exceptional to the general rule, where the justice of the case will not be met by confining a person to the statutory appeal and excluding judicial review. The set of such circumstances is not necessarily closed. However, the principal areas of exception have been identified. In some cases an appeal will not permit the person aggrieved to adequately ventilate the basis of their complaint against the initial decision. As pointed out by Hogan J. in Koczan, that may be so because of constitutional difficulties or other circumstances where the body to whom the statutory appeal lies would not have jurisdiction to deal with all the issues. Likewise, there may be cases where, in all the circumstances, the allegation of the aggrieved party is that they were deprived of the reality of a proper consideration of the issues such that confining them to an appeal would be in truth depriving them of their entitlement to two hearings.Here, the record companies had initially sought to join the appeal and they probably could have been properly joined. Did they fall within an exception to the general rule? Particularly exercised by a lack of clarity as to the scope of the right of appeal at issue, Clarke J. held that they did:
5.17 In the circumstances of this case I would place particular weight on the fact that the record companies have no statutory right of appeal at all. As pointed out, the underlying rationale of much of the relevant jurisprudence stems from an assumption that those on whom a right of appeal is conferred should, in the absence of sufficiently weighty countervailing circumstances, exercise their right of appeal rather than invoke judicial review. That rationale has no application in the case of a party who does not have a right of appeal. While that rationale might have some limited relevance in a case, such as this, where a party has at least a possibility of becoming involved in an appellate process (and much greater relevance if the record companies had actually achieved an unconditional involvement in the appeal process), it seems to me that the weight to be attached to such a conditional entitlement to appeal (which after all could only be exercised in the event that the right to appeal is invoked in the first place by a party, Eircom in this case, who has the statutory right to appeal and could well have been refused on the basis that the record companies had no right to apply) must be limited. When to that is added, on the facts of this case, the initial position and belated change of position by the Commissioner such that, at the time when a decision to seek judicial review was made, the question of the entitlement of the record companies to be involved in the statutory appeal was open to question, coupled with the doubts which surrounded the scope of any appeal which might be pursued, it seems to me that an analysis of all the circumstances suggests that the limited and conditional possibility of appeal which the record companies might have enjoyed in this case is not such as could have rendered the invocation of the alternative of judicial review an abuse of process.This seems right to me as a matter of first principles. Disentitling an individual to judicial review on the basis of a largely inchoate appeal procedure would be a drastic step, which was hardly justified in the instant case.