As we have seen, the idea that the keelmen should seek a legal remedy against the spouts emerged during the latter part of ‘the long stop’. According to the evidence of a keelman, several years later, Thomas Clennell and other magistrates, presumably in an attempt to break the impasse during the strike, encouraged the keelmen to raise money to bring their case against the spouts to trial at law. The Keelmen's Address of 14 November 1822 implied that they had taken soundings of legal opinion, and their offer on 28 November to drop the question of the spouts ‘for the present’ suggests that they had an alternative strategy in view. That the spouts were a major cause of redundancy among the keelmen was not a matter of which the courts would take cognizance, but a prosecution could be instituted on the grounds that the staithes and the spouts and drops erected on them impeded navigation of the river and were therefore a public nuisance. Two weeks after the strike, the keelmen's deputies resolved that a subscription should be raised to try the question and appealed for assistance in a cause in which, they declared, the public was ‘materially concerned’. Subscriptions would be received at various inns and at the establishment of John Marshall, the radical printer of their Addresses during the strike.

The attack was directed against two staithes erected near Wallsend by Messsrs Russell to load the colliers by means of drops, and in the spring of 1823 the keelmen's attorney, John Lowrey of North Shields, applied for a bill of indictment against these structures as nuisances obstructing navigation of the river. The application failed at Newcastle Sessions, Morpeth Sessions and Newcastle Assizes, even though on the latter occasion twenty-four witnesses gave evidence for the keelmen, but, at the summer Assizes for Northumberland, a ‘true bill’ was found, and preparations then began for a trial. Since the prosecution alleged a public nuisance, the case was carried on in the name of the crown as Rex v Russell. Henry Brougham, a colourful character who at this stage in his career was best known for his defence of Queen Caroline, was briefed for the keelmen, and James Scarlett, KC, for the defence. Brougham obtained a rule to remove the case to York, since a jury in Newcastle or Northumberland was likely to include coal owners or those closely associated with them.