Opinion of Lord Macphail
in the petition of
L
Rowland & Company (Retail) Ltd [Petitioners] v The National Appeal Panel [Respondents] and
Healthcare Pharmacies Ltd [First
Interested Parties]
for
Judicial
Review of a decision of the National Appeal Panel
[Date]
Judicial review is a remedy
whereby the Court of Session may review and if necessary rectify decisions of,
for example, tribunals and public authorities where no other form of appeal is
available.
Bonnyrigg in Midlothian has two pharmacies. One is operated by L Rowland & Co. (the
petitioners) and the other by Lloyds Pharmacy Ltd. In January 2005 the first interested parties
(Healthcare) wanted to open a third pharmacy in Bonnyrigg and had to apply to
Lothian Health Board for inclusion in its pharmaceutical list. The application was considered by the Board's
Pharmacy Practices Committee (PPC) who refused
the application. Healthcare then
appealed to the National Appeal Panel (NAP) who allowed the appeal. The
petitioners applied to the Court of Session seeking reduction of the NAP's
decision. Lord Macphail heard parties at
a first hearing.
In determining an application, a PPC must identify the relevant
neighbourhood. It must then consider
whether the existing provision of pharmaceutical services in the relevant
neighbourhood is adequate. If it is
adequate, the application must fail. If
it is not adequate, the decision-maker must consider whether the provision of
pharmaceutical services named in the application is necessary or desirable in
order to secure adequate provision. The
NAP considered that the relevant neighbourhood was the town of Bonnyrigg including
various new housing developments that were proposed for the town. In so doing they failed to distinguish
between probable and speculative future developments. In deciding that the provision of
pharmaceutical services in the neighbourhood was inadequate the NAP had regard
to the fact that the numbers of items dispensed by the two existing pharmacies
were considerably higher than the Scottish national average and that the
numbers of patients on the local doctors' lists were high.
Summary of Lord Macphail's Opinion
ท
Lord
Macphail held that the NAP was entitled to have regard to the number of items
dispensed and the number of patients on the GP lists when reaching a view as to
the adequacy of the existing provision in the future. The fact that the NAP fell into error by
failing to distinguish between probable and speculative future developments did
not play a material part in its determination of the issue of adequacy of
provision (para. [22]).
ท
Having
determined that the existing provision was inadequate to meet probable future
developments, the NAP properly went on to consider whether the provision of
pharmaceutical services at the premises named in Healthcare's application was
'necessary or desirable' in order to secure adequate provision. Following the case of Lloyds Pharmacy Ltd v
National Appeal Panel 2004 SC 703, Lord Macphail held that it was
reasonable for the NAP to conclude that while it was not necessary to grant the
application in order to secure an adequate pharmaceutical service, it would be
desirable to do so (para. [23]). The
criticisms of the NAP's reasoning made by the petitioners could not be
supported. His Lordship also rejected
the petitioner's submission that the NAP failed to give adequate reasons for
its decision (para. [27]).
Their first two arguments having failed, the petitioners proceeded to
raise a third issue as to procedural irregularity and unfairness before the
NAP.
The NHS (Pharmaceutical Services) (Scotland) Regulations 1995 ('the Regulations') state
that only applicants can address the NAP.
Applicants can seek legal advice but lawyers may not address the
NAP. Healthcare's representative at the
hearing was qualified as a barrister in addition to being an employee of the
company. The petitioners' representative
was not legally qualified. She felt
intimidated by Healthcare's representative and did not direct questions to
him. The petitioners maintained that the
procedure at the hearing was irregular and unfair. Healthcare's representative was acting as a
paid representative in breach of the Regulations.
ท
Lord
Macphail held that the petitioners had not made any relevant averments of procedural
unfairness or irregularity. The fact
that the petitioner's representative at the hearing felt intimidated by
Healthcare's representative was not important.
The fact that a party's representative feels unequal to the task of
competing with a skilful, confident and experienced opponent does not mean that
the party is the victim of procedural unfairness or irregularity (para. [36]).
ท
There
was no breach of the Regulations. Their
object is to prevent anyone who is a lawyer or a paid advocate from appearing
in that capacity and from speaking on behalf of a party. A full-time employee of a party may appear on
behalf of that party without contravening the Regulations (para. [37]). Healthcare's representative was not acting as
a paid advocate at the hearing before the NAP; he was appearing for them in his
capacity as a full-time employee without receiving any remuneration additional
to his salary (para. [38]). Even if
there was a failure to comply with the Regulations, the petitioners failed to
demonstrate that it caused them any material prejudice and so could not
challenge the NAP's decision (para. [39]).
ท
The
petition was dismissed (para. [40]).
NOTE
This summary is provided to assist in
understanding the Court's decision. It
does not form part of the reasons for that decision. The full report of the Court is the only
authoritative document.
The
full opinion will be available on the Scottish Courts website from 12.00 noon today at this location: http://www.scotcourts.gov.uk/opinionsApp/supreme.asp
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|
OUTER HOUSE, COURT OF SESSION
[2006] CSOH 113
|
|
P2698/05
|
OPINION OF LORD MACPHAIL
in the petition of
L ROWLAND &
COMPANY (RETAIL) LTD
Petitioners:
against
THE NATIONAL APPEAL
PANEL
Respondents:
and
HEALTHCARE
PHARMACIES LTD
First Interested
Parties:
for
Judicial Review of
a decision of the National Appeal Panel
ญญญญญญญญญญญญญญญญญ________________
|
Petitioners: Peoples, Q.C., Wallace;
Alexander Moffat & Co, W.S.
Respondents: Ellis, Q.C.; R.F. Macdonald
First Interested Parties: S.G. Collins;
Balfour & Manson
21 July 2006
Introduction
[1] In
the town of Bonnyrigg in Midlothian
there are two pharmacies. One is
operated by the petitioners, and the other by Lloyds Pharmacy Ltd
(Lloyds). In January 2005 the first
interested parties (Healthcare) wanted to open a third pharmacy in
Bonnyrigg. Before they could do so they
had to apply to Lothian Health Board for inclusion in its pharmaceutical
list. The application was considered by
the Board's Pharmacy Practices Committee (PPC).
The petitioners and Lloyds made representations against the application. The PPC refused the application, and
Healthcare appealed to the National Appeal Panel (NAP). The petitioners and Lloyds again
appeared. The NAP allowed the
appeal. The petitioners now apply to
this Court for judicial review, seeking reduction of that decision. The NAP appear as the respondents. The petition was served on both Healthcare
and Lloyds as interested parties, but only Healthcare have compeared. They are accordingly the first, and only,
interested parties. Both the NAP and
Healthcare have stated general pleas to the relevancy of the petitioners'
averments. I have now heard parties at a
first hearing.
The legislation
[2] The
relevant provisions appear in the National Health Service (Pharmaceutical
Services) (Scotland)
Regulations 1995 (SI 1995, No 414), as
amended. Regulation 5 obliges a health
board or primary care NHS trust to prepare a list ("the pharmaceutical list")
of persons who undertake to provide pharmaceutical services (regulation
5(1)). Anyone who wishes to be included
in the list must apply to the board or trust (regulation 5(2)). The application is disposed of on behalf of
the board or trust by its Pharmacy Practices Committee (PPC) (Sched 4, paras 1
and 2). The procedure is prescribed by
Schedule 3. Regulation 5(10) provides,
so far as material to Healthcare's application:
"(10) An application [....] shall be granted by the
board or primary care NHS trust, after the procedures set out in Schedule 3
have been followed, only if it is satisfied that the provision of
pharmaceutical services at the premises named in the application is necessary
or desirable in order to secure adequate provision of pharmaceutical services
in the neighbourhood in which the premises are located by persons whose names
are included in the pharmaceutical list."
An appeal against a decision on an
application under regulation 5(10) is determined by the National Appeal
Panel. Detailed provision is made as to
the procedure in appeals by paragraph 4 to Schedule 3, and as to the National
Appeal Panel by Schedule 4, Part II.
[3] Authoritative
directions relative to the determination of an application under regulation
5(10) are given by the Inner House in Lloyds
Pharmacy Ltd v National Appeal Panel 2004
SC 703 at 708-709. The application in
that case was for authority to relocate within the same board's area the
premises from which the applicant provided pharmaceutical services, but that is
not material because the statutory test that had to be satisfied was that set
out in regulation 5(10). The Court
states that in applying that test, the first step the decision-maker must take
is clearly to identify the relevant neighbourhood. Thereafter, it must approach the application
in two stages. First, it must consider
whether the existing provision of pharmaceutical services in the relevant
neighbourhood is adequate. If it is
adequate, the application must fail. If
it is not adequate, the decision-maker must consider, secondly, whether the
provision of pharmaceutical services at the premises named in the application
is "necessary or desirable" in order to secure adequate provision.
[4] As
to the first of these two stages, the Court explains that "adequacy" is a
simple concept: either the existing provision is adequate or it is not. The standard of adequacy is a matter for the
decision-maker, a specialist tribunal which can be expected to apply its knowledge
of the pharmaceutical business to the task of determining the appropriate
standard. It is, however, proper to have
regard to future developments that can be considered probable rather than
speculative, in order to ensure that an adequate provision can be maintained.
[5] As
to the second stage, the Court states that a shortfall in provision may be
remedied either by a proposal which does no more than make up the shortfall and
thus is "necessary" to secure adequate provision, or by one which goes further
and results in a degree of overprovision.
A proposal of the latter kind may be approved as "desirable" if the
decision-maker is satisfied that, notwithstanding the overprovision, the
proposal is still "desirable" in order to secure adequacy. Subject to these comments, the question
whether a proposal is necessary or desirable in order to secure an adequate
provision of pharmaceutical services in the neighbourhood is a matter for the
decision-maker as a specialist tribunal.
The decision of the Panel
[6] In
the present case the National Appeal Panel (NAP) heard Healthcare's appeal
against the PPC's refusal of their application for inclusion in the Board's
pharmaceutical list in respect of a new pharmacy at the New Bonnyrigg Health
Centre in Bonnyrigg High Street. The
hearing took place on 27 September
2005. Healthcare were
represented by a Mr Daly, assisted by Mr Murray; Lloyds by a Mr McKeever; and the petitioners by a Mrs Chiwara,
assisted by Mr Stewart. Before the
hearing the Panel made a site visit to the Bonnyrigg area and noted the
location of the proposed new pharmacy, the two existing pharmacies and the
general medical practices in the area.
At the hearing it heard submissions from each of the parties'
representatives. It issued its decision
(no. 6/2 of process) on 2 October 2005. It expresses its decision in these terms:
"The decision of
the Panel was that the provision of pharmaceutical services at the premises was
not necessary but desirable in order to secure adequate provision of pharmaceutical
services in the neighbourhood in which the premises were located by persons
whose names are included in the Pharmaceutical List and that, accordingly, the
appeal was upheld."
The Panel goes on to narrate in
detail the procedure followed and the submissions made, and at the end of the
document it gives the reasons for its decision under the headings
"Neighbourhood" and "Adequacy of existing provision of pharmaceutical services
and necessity or desirability". Those
reasons are set out in full later in this Opinion.
The petitioners' arguments
[7] The
petitioners seek reduction of the Panel's decision. In the petition and in argument at the first
hearing, the petitioners raised three issues.
First, the Panel had included in the relevant neighbourhood proposed new
housing developments which were hypothetical rather than probable. Secondly, the Panel had erred when
considering the adequacy of the existing provision of pharmaceutical services
in the relevant neighbourhood. The
petitioners' counsel submitted that each of these issues could be decided after
argument at the first hearing. If the
petitioners were to fail on these issues, they sought to raise a third issue as
to procedural irregularity and unfairness at the hearing before the Panel. That issue involved questions of fact on
which the parties were not agreed, and if it arose for decision, there would
have to be some form of inquiry.
[8] The
petitioners' second plea-in-law is in these terms:
"2. The decision complained of being
unreasonable et separatim unlawful, et separatim invalidated by procedural
irregularity and unfairness, reduction should be granted as first craved."
The Panel and Healthcare each state
as their first plea-in-law a general plea to relevancy in the following terms:
"1. The petitioners' averments being
irrelevant et separatim lacking in
specification, the petition should be dismissed."
The "neighbourhood" issue
[9] The
Lothian Health Board's Pharmacy Practices Committee (PPC) refused Healthcare's
application by a decision dated 15
June 2005 (no. 6/1 of
process). The Committee identified the
relevant neighbourhood as the town of Bonnyrigg
(paragraph 104), and it held that the existing provision of pharmaceutical
services in that neighbourhood was adequate (paragraph 119).
[10] Healthcare, in a letter dated 8 July 2005 (no.
6/4 of process) intimating their appeal against the decision of the PPC,
asked that the appeal be upheld for the following reasons, among others:
"1. POPULATION SIZE
1.1 The area of Bonnyrigg had a population of
14,457 (Scottish Census Results Online) in 2001 and will have grown
significantly since then, with the development of modern housing estates, such
as Lothian Park to the south.
[Healthcare] believe that this size of the local population alone
justifies the granting of a third pharmacy contract for the area, to ensure
that adequate pharmacy services are maintained.
This will be of even greater importance as the population of Bonnyrigg
continues to grow rapidly. [ . .
. ]
1.2 Bonnyrigg and the surrounding area will
continue to expand in the future as more housing sites are developed. As mentioned in the original application the
Hopefield Farm site to the south has been approved for development and is
estimated to bring another 3,500 people to the area. Appendix 1 [a map] shows the proposed sites
for future housing development in Bonnyrigg (this is in addition to the
Hopefield Farm site), taken from the Local Plans Review 2004.
Site BG1 and BG7
to contain 95 houses
Site BG2, BG3
and BG4 to contain 581 houses
Site BG5, BG6
and BG8 to contain 1540 houses
BG9a and BG9b to
contain 90 houses.
1.3 This in conjunction with similar
developments in areas surrounding Bonnyrigg and many small-scale developments
which are on-going. These will quickly
create a population in excess of 20,000.
The Orchard Grange site at Newtongrange (a further 71 dwellings have
just been released) and the Fairmeadow (134 dwellings) developments are both
under construction, as shown in Appendix 2 [photographs].
1.4 This rapidly increasing population will
place an increased burden upon the pharmacy services available in Bonnyrigg,
especially as the average age is expected to increase significantly."
[11] The map (Appendix 1) shows the Hopefield Farm site as a
"committed development" and each of the sites BG1 to BG9b as a "site for
discussion". In a box on the map there
appears the following statement:
"The map
indicates proposals submitted to the Council for consideration by
landowners/developers. The inclusion of
any site on this map does not imply that development is supported."
[12] At the hearing before the Panel, the issue of the
identification of the neighbourhood was discussed in the following way, as
appears from the Panel's narrative in its decision (no. 6/2 of process). Healthcare's representative, Mr Daly,
accepted Bonnyrigg as the neighbourhood for the purposes of the
application. He referred to the map, but
he appears not to have distinguished clearly between the committed development
and the sites for discussion. His
submissions are recorded as follows:
"(Paragraph 7)
[.....] He pointed out that there were a considerable number of new housing
developments in and around Bonnyrigg.
These were demonstrated on the map marked no. 5 in the papers before the Panel. [....]
(Paragraph 8)
[.....] The further housing developments
in Bonnyrigg will increase the pressures on the delivery of pharmaceutical
services within the neighbourhood. He
drew attention to the development at the Hopefield Farm site which was anticipated
to house 3,500 persons. He again made
reference to the map at page 5 of the Panel papers, which indicated a number of
proposed housing development sites which would increase the resident population
to approximately 20,000 persons. At the
present time, there were only two pharmacies available to deliver the necessary
services. A significant percentage of
the 20,000 will include those over 65 years of age. The issue for the Panel to consider was the
question of the adequacy of the service provision to the population. It was not a question of whether his company
would bring in new services. The
existing pharmacies would not be able to deliver all the pharmaceutical
services required for this population.
[.....]"
[13] The representatives of Lloyds and of the petitioners did not
contradict Mr Daly's assertions of fact, and in particular did not draw to
the attention of the Panel either the statement in the box on the map or the
distinction apparent on the map between the committed development at Hopefield
Farm and the sites for discussion at sites BG1 to BG 9b.
[14] The Panel's decision on the issue of neighbourhood was stated
thus:
"21. Having considered the evidence presented
to it, and the Panel's observations from a site visit, the Panel had to decide
first the question of the neighbourhood in which the premises, to which the
application related, were located.
22. The Panel noted the neighbourhood defined
by the PPC and the views of the parties before the Panel and took into account
a number of factors in defining the neighbourhood, including whether the
neighbourhood was one for all purposes, that it had natural boundaries, the
presence or otherwise of schools and shops and the distance over which
residents had to travel to obtain pharmaceutical services. The Panel considered that in light of such
criteria, the neighbourhood should be defined as the town of Bonnyrigg
including the new housing developments which were proposed for the town."
[15] Counsel for the Panel and for Healthcare sought to support the
Panel's decision on this issue, but in my opinion it is clear that in so
defining the neighbourhood the Panel fell into error by disregarding the
distinction drawn by the Court in Lloyds
Pharmacy Ltd between probable and speculative future developments. The Panel failed to distinguish between the
probable development at Hopefield Farm and the developments at sites BG1 to
BG9b which were no more than sites for discussion and thus fell properly to be
described as speculative future developments.
The decision it reached as to the identification of the neighbourhood
was not open to it in all the circumstances, unlike the decision of the Panel
in Sainsbury's Supermarkets Ltd v National Appeal Panel 2003 SLT 688 to
which I was referred by counsel for Healthcare.
I do not imply any criticism of the Panel because the other parties'
representatives did not point out the distinction and did not challenge or
contradict the assertions by Healthcare's representative. In itself the error is of no practical
significance. The important question is
whether it played a material, but not necessarily a decisive, part in the
Panel's determination of the question whether the existing provision of
pharmaceutical services in the neighbourhood was adequate (cf E v
Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044, Carnwath LJ at
paragraph 66). To that question I now
turn.
Adequacy of existing provision
[16] After the paragraphs quoted above, the Panel continued:
"23. Having reached that conclusion, the Panel
was then required to consider the adequacy of the existing pharmaceutical
services in that neighbourhood, and whether the granting of the application was
necessary or desirable in order to secure adequate provision of pharmaceutical
services in that neighbourhood.
24. Within the neighbourhood, as defined by
the Panel, it was considered that the provision of pharmaceutical services
provided by the pharmacies within and to that neighbourhood were not
adequate. The numbers of items dispensed
by the two pharmacies were considerably higher than the Scottish national
average. There was clear evidence that
the population of Bonnyrigg was increasing substantially. The numbers of patients on the general
medical practitioners' lists in Bonnyrigg, was high. There was evidence that a new pharmacy would
improve the pharmaceutical services to the neighbourhood in terms of
ameliorating the increasing heavy demands on the existing pharmacies and
increasing the availability of private consultations. The Panel considered that the shortfall in
the service provision required to be addressed, which might result in a degree
of over-provision. Accordingly while it
was not necessary to grant the application in order to secure an adequate
pharmaceutical service, it would be desirable to do so.
26 [sic: read '25']. For the reasons set out above, the Panel considered that the
existing pharmaceutical service in the neighbourhood was inadequate. The Panel was satisfied that the provision of
pharmaceutical services at the premises of the Applicant and Appellant was not
necessary but desirable in order to secure the adequate provision of
pharmaceutical services in the neighbourhood in which the premises were located
by persons whose names are included in the Pharmaceutical List.
27 [read '26']. In the circumstances, it was the decision of
the Panel that the appeal be upheld."
[17] Counsel for the petitioners made several criticisms of the
Panel's reasoning. First, the fact that
the two existing pharmacies dispensed more items than the Scottish national
average cast no light on the question whether the services they provided were
adequate. Secondly, it did not follow
from the fact that the population was increasing substantially that the
existing pharmacies could not meet any increased demand. There was no finding that their services were
inadequate as matters stood or as they might be. Thirdly, it was not clear by what standard
the number of patients was "high", and in any event the number was not related
to the adequacy of the existing services.
Fourthly, the test was not whether a new pharmacy would improve the
services but whether the existing provision was adequate. The concluding sentence of paragraph 24 was
awkwardly expressed. There was no
sufficient basis for the Panel's reaching a conclusion different from that of
the PPC. The following paragraph did not
state any rational reasons, and there were grounds for remitting the matter to
a freshly constituted Panel.
[18] In reply to these criticisms counsel for the Panel, whose
submissions were generally adopted by counsel for Healthcare, submitted that
the Panel had heard full information about the existing pharmacies from the
representatives of the petitioners and Lloyds at the hearing. As in the Lloyds
Pharmacy case (at paragraph 12), there was no reason to think either that
the issues between the parties had not been fully discussed in the proceedings
before the Panel or that the Panel had failed to have regard to the submissions
and evidence put before it. The references
to the number of items dispensed being higher than the national average, and to
the large number of patients, indicated that in the Panel's opinion the
existing pharmacies were already working hard.
That was a consideration relevant to the question whether the existing
provision would be adequate in the future.
[19] Further, it was not unreasonable for the Panel to find that the
population of Bonnyrigg was likely to increase substantially. It was proper for the Panel to form a view as
to what was probably going to happen in the neighbourhood. It was indeed likely that the area of the
Hopefield Farm development would be built on and that the population would be
thereby increased by some 3,500. That
alone would justify the Panel's finding.
The statements made by Healthcare's representative to the Panel had
repeated the statements in Healthcare's letter of 23 March 2005 supporting their original application to
the PPC (no. 6/5 of process) and in their letter intimating their appeal to the
Panel (no. 6/4 of process). These
statements clearly formed an important ground of appeal, but they had not been
challenged by the other parties' representatives and the Panel had been
entitled to accept them. Nor had the
other parties challenged statements in other documents before the Panel which
had clearly flagged up the issue of the increase in population. The original application to the PPC had
stated that between 1991 and 2001 the population had increased by 5,000 to
14,457 (no. 6/6 of process, page 10).
[20] Counsel for the Panel also submitted that the Panel's reference
to the improvement of the services was concerned not with the question of the
adequacy of the existing provision but with the question whether the provision
proposed by Healthcare was necessary or desirable. They had concluded that it was not necessary,
but it was desirable. That was a
conclusion which they had been entitled to reach. It was precisely the kind of conclusion that
had been envisaged in Lloyds Pharmacy at
paragraph 11.
[21] Finally, counsel for the Panel referred to an argument which
appeared in the petition but which had not been advanced by counsel for the
petitioners. It is said in statement 8
of the petition at pages 14-15 that for the Panel to have reasonably concluded
that there could be amelioration of "increasingly heavy demands" and an
increase in "the availability of private consultations", there would have had
to have been evidence that both the petitioners and Lloyds were incapable of
meeting current demands. Counsel for the
Panel submitted that it would not have been legitimate for the Panel to
consider possible improvements by Lloyds and the petitioners, and that it was
not necessary for the Panel, when determining whether the existing provision
was adequate, to find that it was not actually meeting current demands: it was
sufficient to find that it was not adequate to take account of probable future
changes. Since counsel for the
petitioners did not make detailed submissions in support of the argument in the
petition, it is unnecessary for me to express any view on this issue.
[22] In my opinion the Panel was entitled to have regard to the
number of items dispensed and the number of patients on the general
practitioners' lists when reaching a view as to the adequacy of the existing
provision in the future. It had heard
full submissions about the services provided by the existing pharmacies and it
was entitled, as a specialist decision-maker, to conclude that they were under
pressure. The Panel had also read and
heard a number of unchallenged statements by or on behalf of Healthcare to the
effect that the population of Bonnyrigg was likely to increase
substantially. The fact that the Panel
fell into error by failing to distinguish between probable and speculative
future developments did not, in my view, play a material part in its
determination of the issue of adequacy of provision. The Panel's view that the population was
likely to increase substantially was amply justified by the prospect of the
probable development of the Hopefield Farm site, which would add some 3,500
people to a population measured at 14,457 in 2001. That alone would amount to a population
increase of some 24 per cent.
[23] Having determined that the existing provision was inadequate to
meet probable future developments, the Panel properly went on to consider
whether the provision of pharmaceutical services at the premises named in
Healthcare's application was "necessary or desirable" in order to secure
adequate provision. It was when it was
considering that question that the Panel observed that the proposed pharmacy
"would improve the services to the neighbourhood in terms of ameliorating the
increasing heavy demands on the existing pharmacies and increasing the
availability of private consultations." The Panel immediately went on to state
expressly that it considered "that the shortfall in the service provision
required to be addressed, which might result in a degree of
over-provision. Accordingly while it was
not necessary to grant the application in order to secure an adequate
pharmaceutical service, it would be desirable to do so." That is exactly the
situation contemplated in paragraph 11 of Lloyds
Pharmacy.
[24] I consider, accordingly, that the criticisms of the Panel's
reasoning made by the petitioners cannot be supported.
Adequacy of reasons
[25] The petitioners, however, mounted a further attack on the
Panel's reasons which they described as a free-standing ground of appeal. The Panel is obliged to give reasons for its
decision. Paragraph 15(2) of Schedule 4
to the Regulations provides:
"(2) The
National Appeal Panel shall within 5 working days of taking its decision, give
written notification of that decision with reasons for it to the Board to whom
the original application was made."
Counsel for the petitioners founded
on Albyn Properties Ltd v Knox 1977 SC 108 which was concerned
with the duty of a rent assessment committee to give reasons for its
decision. Lord President Emslie said (at
page 112):
"The statutory
obligation to give reasons is designed not merely to inform the parties of the
result of the committee's deliberations but to make clear to them and to this
Court the basis on which their decision was reached, and that they have reached
their result in conformity with the requirements of the statutory provisions
and the principles of natural justice.
In order to make clear the basis of their decision a committee must
state (i) what facts they found to be admitted or proved; (ii) whether and to
what extent the submissions of parties were accepted as convincing or not; and
(iii) by what method or methods of valuation applied to the facts found their
determination was arrived at."
Counsel also referred to Glasgow Heritable Trust Ltd v Donald 1977 SC 113, a case decided in
1971 but reported as an appendix to Albyn
Properties Ltd. Counsel relied on
factors (i) and (ii) in the dictum quoted.
It was not enough for the Panel to say that the items dispensed by the
existing pharmacies did not conform to the national average, without finding
that that average was an optimum figure.
How the Panel had approached the question of adequacy had been "left in
the air" (Glasgow Heritable Trust Ltd at
page 114). The Panel had not looked at
the local situation. Counsel also took
me through the provisions of Schedules 3 and 4 to the Regulations and again
referred to Lloyds Pharmacy. The Panel had been entitled to consider only
probable future developments, not any possible developments. Healthcare had invited the Panel to fall into
that error.
[26] Counsel for the Panel submitted that the reasons given by the
Panel were perfectly adequate. Counsel
cited Safeway Stores Ltd v National Appeal Panel 1996 SC 37 at 40
where the Court referred to the following dictum by Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348:
"The decision
must, in short, leave the informed reader and the Court in no real and
substantial doubt as to what the reasons for it were and what were the material
considerations which were taken into account in reaching it."
The Court in Safeway Stores Ltd also referred to Albyn Properties Ltd and said (at page 41):
"Accordingly,
where, as here, the Panel are differing from the Committee, in order to comply
with their obligation to give reasons for their decision the Panel must
indicate what material factors they considered in arriving at their decision,
and what conclusions they reached on these material factors."
[27] I have already dealt with the substance of these submissions
when considering the Panel's reasons above.
They appear to me to satisfy the requirements laid down in Safeway Stores Ltd. I have noted that the Panel indeed fell
into error in considering possible future developments, but I have found that
that did not play a material part in its determination of the question of the
adequacy of the existing provision of pharmaceutical services.
Procedural irregularity and unfairness
[29] As I have noted, counsel for the petitioners stated that if
their arguments considered above were to fail, they would seek to raise a third
issue as to procedural irregularity and unfairness before the Panel. The petitioners present this issue in their
pleadings in the following way:
"9. Further and in any event, the said
decision was reached in a manner that was procedurally irregular and unfair to
the petitioners. The first interested
party [Healthcare] was represented at the said hearing by Mr Conor Daly. He introduced himself as a pharmacist and
barrister. The first respondents'
chairman observed that he had met Mr Daly at the Stranraer appeal when he had
been representing Bairds (N'ards) Ltd.
The chairman remarked "Oh well, you'll keep us right". Thereafter Mr Daly conducted the appeal on
behalf of the first interested party.
Mrs Chiwara [the petitioners' representative] is not legally
qualified. Her only expertise is as a
pharmacist. She had no previous experience
of conducting an appeal hearing. She
considered Mr Daly to have conducted the hearing with considerable skill and in
her view he had dominated the appeal.
Having observed the manner in which Mr Daly conducted the appeal
including how he dealt with questioning of and by Mr McKeever, representing
Lloyds, she was left feeling intimidated and did not feel confident enough to
question Mr Daly in relation to possible sites for additional housing and
accordingly did not do so. Reference is
made to paragraph 4(8) of Schedule 3 to the National Health Service
(Pharmaceutical Services) (Scotland)
Regulations 1995, as amended, which provides:
'The appellant,
applicant and any person mentioned in paragraph 1(1)(c), except the local
health council, who made written representation to the Board or primary care
NHS trust about the application shall be permitted to be assisted in making
representations at any Panel hearing by some other person, but that other
person shall not appear in the capacity of counsel, solicitor or paid advocate,
nor shall he be entitled to speak on behalf of the person being assisted.'
The guide to the
appeals procedure published by the Scottish Executive also states:
'You can seek
legal advice and be assisted at the hearing by a legal adviser or some other
person, but only you can address the NAP.'
In the foregoing
circumstances the procedure at the hearing was irregular and unfair. [...] it is further explained and averred
that during September and October 2005 Mr Daly was acting as a paid advocate
for pharmaceutical companies at appeals before the National Appeal Panel
conducted under the said 1995 Regulations.
He was employed by pharmaceutical companies to appear and plead their
cases before the Panel. He acted for
Healthcare Pharmacies Limited (Healthcare) as a paid advocate at the hearing
before the Panel on 27 September 2005.
He acted for Alliance Pharmacy Limited, Fern House, 53-55 High Street,
Feltham, Middlesex TW13 4HU (Alliance) as a paid advocate at a hearing before
the Panel on 6 October 2005. Alliance
was seeking inclusion in the pharmaceutical list of Lothian Health Board in
respect of a new pharmacy at Unit 9, Royal Bank of Scotland Headquarters, Glasgow
Road, Gogarburn, Edinburgh. On each of these occasions, Mr Daly presented
the appeals and made legal submissions on behalf of the companies whom he
represented. At the hearing on 27 September 2005, before making such
submissions, he advised the lay panel that he was a qualified barrister. There is no commercial or operational
connection between Healthcare and Alliance.
Over a period of about 10 years prior to September 2005, Mr Daly was
involved in many applications for new pharmacy contracts in England,
Scotland and
Northern Ireland. He appeared in front
of the National Appeal Panel on numerous occasions for different
applicants. By September 2005, he was
specialising in the provision, for reward, of services connected with
applications for, and objections to, inclusion in pharmaceutical lists
including (1) advice on the correct procedure to be followed when applying for,
or objecting to applications for, inclusion in the pharmaceutical list and (2)
advocacy services on behalf of applicants and objectors in relation to appeals
before the National Appeal Panel. According
to the records of Companies House, Mr Daly was appointed as Business
Development Director of Healthcare with effect from 1 November 2005. The
said date of appointment was provided by Healthcare on a Form 288a which was
lodged on either 11 November 2005
or 23 November 2005."
[30] In its answers the Panel avers that Mr Daly told the Panel that
he was qualified as a barrister but was not a practising barrister. The Panel denies that there was any breach of
paragraph 4(8) of Schedule 3 to the Regulations, and maintains that esto there was any breach, the
petitioners were not prejudiced thereby and they had also waived their right to
object to Mr Daly's appearing for Healthcare.
The Panel's pleas-in-law relative to this issue are:
"3. The decision of the first respondents
not being unlawful or invalidated by procedural unfairness or properly subject
to reduction decree of reduction should be refused.
4. Separatim
esto there has been any breach of paragraph 4(8) of the 1995 Regulations
(which is denied) no prejudice having been identified as having been suffered
by the petitioner as a result of the breach decree of reduction on the grounds
of any such breach should be refused.
5. Separatim
esto there has been any breach of paragraph 4(8) of the 1995 Regulations
(which is denied) the petitioners having waived their right to rely on any
objection based thereon decree of reduction should be refused."
[31] Healthcare also maintain in their answers that there was no
failure to comply with paragraph 4(8).
They aver that since 8 August 2005 and thus on the date of the hearing
before the Panel (27 September 2005) Mr Daly was a full-time salaried employee
of Healthcare with the job title of "business development director" and as such
was entitled to appear before the Panel on Healthcare's behalf. Healthcare have also lodged an affidavit
signed by Mr Daly and documents which bear to be his contract of employment
with them and his payslips for the months from August to December 2005. The petitioners have lodged an affidavit by
Mrs Chiwara.
[32] Counsel for the Panel submitted that whether Mr Daly had told
the Panel that he was a non-practising barrister and whether the chairman had
made the comments attributed to him were not material. The object of paragraph 4(8) was to prevent a
person assisting a party from appearing in the capacity of a paid advocate and
from speaking on the party's behalf. A
party who was a limited company could be represented by a director or a general
employee who was being paid a salary.
Mr Daly's position was clearly established by his contract of
employment and his payslips. A proof
would not serve any purpose (Lord Clyde and D J Edwards, Judicial Review paragraph 23.34, pages 624-625). Mr Daly's status at the hearing on 6 October 2005 was not relevant. Mrs Chiwara's inability to present the
petitioners' case effectively at the hearing on 27 September 2005 was a matter for them.
[33] In any event, counsel for the Panel continued, in order to
obtain the remedy they sought, the petitioners would have to show that they had
been affected by the alleged breach of the Regulations (Lord Clyde and D J
Edwards, Judicial Review paragraph
17.07, pages 489-490; Johnston v Secretary of State for Scotland 1992
SLT 387 at 392-393; Walker v City of Aberdeen Council 1998 SLT 427
at 432; Macpherson v City of Edinburgh Council 2003
SLT 1112 at paragraph 19). Further, the
petitioners had waived their right to object to any such breach. Their waiver could be inferred from their
having allowed the Panel to proceed with the hearing without objection. They must have been aware of their ground of
objection: they knew the terms of the Regulation, they knew that Mr Daly was a
qualified barrister, and they must have known that he was being paid. Counsel referred to Lord Clyde and D J
Edwards, Judicial Review paragraphs
13.20ff, pages 433ff, and Millar v
Dickson 2002 PC 30, paragraphs 31-34.
[34] Counsel for Healthcare submitted that the petitioners'
averments about what Mr Daly and the chairman said, and how Mrs Chiwara felt,
were irrelevant. They did not support
any case that there was any possibility of bias (Millar v Dickson, Lord Hope
of Craighead at paragraphs 63-65; Davidson
v Scottish Ministers (No 2) [2004] UKHL 34, 2005 1 SC (HL) 7, Lord Bingham of Cornhill at paragraphs 7, 18). The petitioners could not found on their own
failure to select a competent representative (Al-Mehdawi v Secretary of
State for the Home Department [1990] 1 AC 876). Counsel for Healthcare adopted the
submissions of counsel for the Panel as to the analysis of paragraph 4(8), and
referred to the contract of employment and the payslips. Counsel for Healthcare also gave further
information about Mr Daly, but since that information was not contained in his
affidavit and counsel for the petitioners had had no opportunity to consider
it, I disregard it.
[35] Counsel for the petitioners submitted that they had averred
sufficient to entitle them to an inquiry.
They relied on the fact that Mr Daly had considerable experience of
appearing before the Panel. He had
appeared before the Panel not only in Scotland
but also in England
and in Northern Ireland. He had
admittedly appeared for Alliance
before the Panel on 6 October 2005. He
had not been notified to Companies House as a director of Healthcare until 1
November 2005. There was a dispute on
record as to whether he had told the Panel that he was not a practising
barrister, and as to whether the chairman had made the remarks attributed to
him by the petitioners. The other
parties' explanations had to be tested.
[36] In my opinion the petitioners have not made any relevant
averments of procedural unfairness or irregularity. The pleasantries said to have been addressed
by the chairman to Mr Daly, if uttered, no doubt might have been better left
unsaid in view of the importance of giving the fair-minded and informed observer
no grounds for concluding that there was a real possibility that the Panel was
biased (Davidson), but there is no
attempt by the petitioners to make a case that because these words were
allegedly spoken there was any such possibility. The averments about what Mrs Chiwara
considered and felt are likewise nothing to the purpose. The fact that a party's representative feels
unequal to the task of competing with a skilful, confident and experienced
opponent does not mean that the party is the victim of procedural unfairness or
irregularity (Al-Mehdawi).
[37] I do not consider that there was any breach of paragraph 4(8)
(set out in paragraph 29 above). The
terms of paragraph 4(8) may suggest that the party who may be assisted is a
natural person. It can hardly have been
contemplated, however, that non-natural persons would not be permitted to
appear before the PPC or the NAP. Many
non-natural persons are parties to such proceedings and are necessarily
represented by natural persons. The
object of the paragraph appears to be to prevent anyone who is counsel or a
solicitor or a paid advocate from appearing in that capacity and from speaking
on behalf of a party. Anyone who appears
as counsel or as a solicitor at a hearing before a court or tribunal is specifically
instructed and remunerated for his or her appearance at that particular
hearing. Likewise a "paid advocate" is a
person who, although neither counsel nor a solicitor, is considered by the
person paying him or her to have advocacy skills and, perhaps, special
knowledge or expertise, which justify his or her being "hired in" for the
occasion of the hearing. Clearly anyone
who falls into any of these three categories is not entitled to appear in that
capacity or to speak on behalf of a party.
On the other hand a full-time employee of a party who is a non-natural
person may, in my opinion, appear on behalf of that party without contravening
paragraph 4(8) provided that he or she does not appear in any of these
capacities.
[38] The question here is whether at the hearing before the Panel on
27 September 2005 Mr Daly
was appearing in the capacity of a paid advocate for Healthcare. Whether he so acted for any parties elsewhere
in the past or for Alliance on 6 October 2005 appears to me to have
no bearing on that question. The
question may be resolved, in my opinion, by inspecting the contract of
employment and the payslips lodged by Healthcare. No. 7/12 of process bears to be a service
agreement dated 8 August 2005 between Healthcare and Mr Daly whereby he is
appointed as business development director of the company (paragraph 2.1) and
is required to devote the whole of his time, attention and skill to the
business and affairs of the company (paragraph 4.1(a)). No. 7/13 of process is a collection of what
bear to be Mr Daly's payslips dated 30 August, 30 September, 31 October, 30
November and 31 December 2005
which show that over that period he was remunerated by the company at the rate
stated in the contract. In Mr Daly's
affidavit (no. 14 of process) he states that he has been a full-time employee
of Healthcare since 8 August 2005
with the job title of business development director. Counsel for the petitioners suggested that
these documents were obscure and did not clear matters up. It is true that the contract of employment
was not executed until 10 October 2005, but having regard to its terms, the
payslips and Mr Daly's affidavit there is in my view no room for any real doubt
as to whether Mr Daly was acting as a paid advocate for Healthcare at the
hearing before the Panel on 27 September 2005.
In my opinion it is clear that he was not: he had not been "hired in"
for the occasion, but was appearing for them in his capacity as a full-time
employee without receiving for his appearance any remuneration additional to
his salary. There being no suggestion of
fraud, I consider that formal proof of the documents at inquiry would not be of
any assistance.
[39] In any event, even if there was a failure to comply with
paragraph 4(8), the petitioners have failed, in my view, to demonstrate that it
caused them any material prejudice; and unless they have been prejudiced, they
have no interest to challenge the Panel's decision (Walker; Macpherson). I did not hear full argument on the issue of
waiver and I therefore express no opinion on that point.
Result
[40] I shall accordingly sustain the first pleas-in-law for the
respondents and the first interested parties, repel the pleas-in-law for the
petitioners and dismiss the petition.
