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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 125
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P550/07
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OPINION OF LORD GLENNIE
in the petition of
UNITED CO-OPERATIVE
LIMITED
Petitioners;
for
Judicial Review of
the National Appeal Panel for the Entry to the Pharmaceutical Lists &c
Respondents:
ญญญญญญญญญญญญญญญญญ________________
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Petitioners: Lindsay; Anderson Strathern
First Respondents: Ellis, QC, Stuart; Ranald
F. Macdonald, Esq
Third Respondents: Wallace; Wright, Johnston & Mackenzie LLP
12 July 2007
Introduction
[1] The
petitioners own and manage a pharmacy at 21-23 High
Street, Lockerbie, Dumfriesshire. In March 2006 the third respondents, Dalston Pharmacy Limited,
(together with its directors, the fourth and fifth respondents) applied
to the Dumfries and Galloway Health Board ("the Board") for inclusion in their
Pharmaceutical List in respect of a proposed new pharmacy at 75 High Street,
Lockerbie. In May 2006 the Board granted
the application. The petitioners
appealed against that decision. After a
hearing on 17 October before the National Appeal Panel for the Entry to
the Pharmaceutical Lists ("the Panel"), the appeal was refused. The Panel's written decision, dated 20 October 2006, was sent to
the petitioners under cover of a letter dated 24 October 2006.
[2] In
this petition for judicial review, the petitioners seek reduction of that
decision. The grounds set out in the
petition are: (a) that the decision was Wednesbury
unreasonable (Associated Provincial
Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223); and (b) that the
Panel failed to give adequate and comprehensible reasons for its decision (Wordie Property Company v Secretary of State for Scotland 1984 SLT 345). In presenting the case for the petitioners,
Mr Lindsay made it clear that he would not be relying upon Wednesbury
unreasonableness but would be limiting his submissions to the complaint that
the Panel had failed to give adequate reasons.
As a result, subject to one point which arose towards the end of
argument, the hearing was limited to a consideration of the adequacy of the
reasons given by the Panel.
[3] In
addition to opposing the merits of the petitioners' case, the respondents
contend that the petitioners are barred by mora, taciturnity and
acquiescence from insisting on the application.
This argument was presented in the course of the submissions rather than
as a preliminary point, and I propose to deal with it in the same way.
The relevant legislation
[4] Regulation
5(1) of the National Health Service (Pharmaceutical Services) (Scotland)
Regulations 1995 ("the Regulations") requires the Health Board (or, in some
cases, a Primary Care NHS Trust) to prepare a list, called "the Pharmaceutical
List", of the names of persons other than doctors and dentists who undertake to
provide pharmaceutical services, and of the addresses of the premises within
the Board's area from which these persons undertake to provide such services. The list also states what services are to be
provided and the days and hours during which the premises are open. Regulation 5(2) provides that a person ("the
applicant") who wishes to be included in the Pharmaceutical List for the
provision of pharmaceutical services shall apply to the Board. In certain circumstances set out in
Regulation 5(3) and 5(4), the Board is required to grant the application. Regulation 5(10) deals with the situation
when the application does not fall within those paragraphs. It provides as follows:
"(10) An application made in any case other than
one to which paragraphs (3) or (4) applies shall be granted by the Board ... 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."
If the application is granted, the
Board is required to make the relevant entries in the Pharmaceutical List after
the expiry of the period for intimating an appeal against the decision to grant
the application, or the conclusion of all appeal procedures: see Regulation 5(14).
[5] Regulation
5(10) was the subject of detailed consideration by the Inner House in Lloyds Pharmacy Limited v National Appeal Panel 2004 SC 703. It held that, in applying the test in
Regulation 5(10), the decision-maker had to approach an application in two
stages: first it had to consider whether
the existing provision of pharmaceutical services in the relevant neighbourhood
was adequate; and
second, if the existing provision was inadequate, it had to consider whether
the provision of pharmaceutical services at the premises named in the application
was necessary or desirable in order to secure adequate provision. The opinion of the court was given by Lord
Drummond Young. I set out in full
paragraphs [8] - [11] of that opinion:
"[8] The
statutory test that must be satisfied if Lloyds' application to relocate is to
be granted is that set out in regulation 5(10) of the 1995 Regulations. Regulation 5(10) provides that an application
to relocate, other than a minor relocation, shall be granted 'only if [the
decision-maker] 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'. In
applying that test, the first step that the decision-maker must take is clearly
to identify the relevant neighbourhood; that was not in dispute. Thereafter, in our opinion, the
decision-maker must approach an application in two stages. First, it must consider whether the existing
provision of pharmaceutical services in the relevant neighbourhood is
adequate. If it decides that such
provision is adequate, that is the end of the matter and the application must
fail. If it decides that such provision
is not adequate, it must go on to consider a second question: whether the provision of pharmaceutical
services at the premises named in the application is 'necessary or desirable'
in order to secure adequate provision.
We consider that such a two-stage approach is inherent in the logical
structure of regulation 5(10). The
fundamental criterion against which the application is to be judged is the
adequacy of pharmaceutical services in the relevant neighbourhood. A deficiency in those services must exist
before an application can be granted.
Consequently the existence of such a deficiency must be identified
before it is necessary to consider what may be done to provide a remedy. The second question relates to the manner in
which an identified deficiency is remedied.
[9] In
relation to the first question, we are of opinion that 'adequacy' is a simple
concept, in the sense that there is no room for different degrees of adequacy,
or a spectrum of adequacy. Either the
pharmaceutical services available in a neighbourhood are adequate or they are
not. That seems to us to be inherent in
the ordinary meaning of the word, which denotes a sufficiency for a particular
purpose, in this case the provision of pharmaceutical services in the relevant
neighbourhood. The standard of adequacy
is a matter for the decision-maker, whether that is the Pharmacy Practice
Committee or the National Appeal Panel.
In either case, the decision-maker is a specialist tribunal, and can be
expected to apply its knowledge of the pharmaceutical business to the task of determining
the appropriate standard.
[10] The
question that the decision-maker must address is the adequacy of the existing
provision to serve the neighbourhood in question. In addressing that question, however, it is
in our opinion proper to have regard to probable future developments, for two
reasons. First, the standard of adequacy
in a particular neighbourhood will obviously change with time. The relevant neighbourhood may change, for
example through the construction of new housing developments or the movement of
population out of inner-city areas.
Likewise, changes inevitably occur in pharmaceutical practice, and the
standard of 'adequate' pharmaceutical provision must accordingly develop over
time. The proposal under consideration
may well provide an illustration of how pharmaceutical practice is developing,
and may be relevant to show what sort of provision is possible in the
neighbourhood. We are in full agreement
with the Lord Ordinary that changes in pharmaceutical practice should be taken
into account by the decision-maker.
Secondly, regulation 5(10) uses the word 'secure' in relation to the
adequate provision of pharmaceutical services.
That word seems to us to indicate that the decision-maker can look to
more than merely achieving a bare present adequacy of pharmaceutical
provision. 'Secure' suggests that it
should be possible to maintain a state of adequacy of provision into the
future. That indicates that the
decision-maker must have some regard to future developments, in order to ensure
that an adequate provision can be maintained.
The decision-maker must, however, determine the adequacy of the existing
provision of pharmaceutical services at a specific time, the time of its
decision. It must accordingly reach its
conclusion on the adequacy of the existing provision on the basis of what is
known at that time, together with future developments that can be considered
probable rather than speculative. The
decision-maker must also bear in mind that the critical question at this stage
of its reasoning is the adequacy of the existing provision, not the adequacy or
desirability of some other possible configuration of pharmaceutical services in
the neighbourhood.
[11] If
the decision-maker determines that the existing provision of pharmaceutical
services in the relevant neighbourhood is inadequate to meet the needs of that
neighbourhood, it must go on to consider the question of how the deficiency can
be remedied. It is at this point that it
must consider whether the proposal in the application is 'necessary or
desirable in order to secure adequate provision of pharmaceutical services in
the neighbourhood'. In
this context, two expressions used in the regulation call for comment. First, the words 'necessary or desirable' are
intended in our opinion to give flexibility in the manner in which a shortfall
in provision is remedied. If the
proposal under consideration does no more than make up the shortfall, that
proposal will obviously be 'necessary' to secure adequate provision of
pharmaceutical services in the neighbourhood.
In some cases, however, the proposal may go further, and result in a
degree of over-provision. The use of the
word 'desirable' is in our view intended to permit the approval of such a
proposal, if the decision-maker is satisfied that, notwithstanding the
over-provision, the proposal is still 'desirable' in order to secure
adequacy. It should be noted, however,
that the expression 'necessary or desirable' is only relevant to the second
question that the decision-maker must consider, namely how an identified
inadequacy is to be remedied. It is not
in our opinion relevant to the first question, whether such an inadequacy
exists in the first place. Secondly, as
we have already noted, the use of the word 'secure' seems to us to indicate
that it should be possible to maintain a state of adequacy of provision into
the future. That could in some cases
result in some degree of present over-provision. Subject to these comments, however, the
question of whether a proposal is necessary or desirable in order to secure an
adequate provision of pharmaceutical services is a matter for the Pharmacy
Practice Committee or the National Appeal Panel as a specialist tribunal."
At the hearing before me, counsel
agreed that that was the approach which the Panel was required to follow in
considering the petitioners' application.
[6] The
procedure for the making and the determination of applications is set out in
Schedule 3 to the Regulations. The
application to the Board is determined on its behalf by the Pharmacy Practice
Committee ("the PPC"). An appeal from
the decision of the Board is determined by the National Appeal Panel ("the
Panel") in accordance with the terms of Part II of Schedule 4 to the
Regulations. The Panel consists of nine
members, of which four are pharmacists and five (including the chairman and
vice chairman) neither are nor have been pharmacists or doctors, or dentists,
or ophthalmic opticians or the like. In
terms of para (15) of Part II of Schedule 4, the
Panel is required to give reasons for its decision at the same time as giving
notice of it to the Board; and the Board
is required to intimate both the decision and the reasons for it to the
applicant and other relevant persons.
The Panel's decision and the petitioners' response to it
[7] The
appeal to the Panel was heard on 17 October
2006. Legal representation
was not permitted. The petitioner was
represented by its NHS Contracts Manager, Mr Brooker,
and the Dalston Pharmacy by Mr Stakin, the fourth respondent. The Panel refused the appeal. Its decision, as intimated in its reasons
dated 20 October 2006,
was that
"The provision
of pharmaceutical services at the premises was necessary 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 refused."
That decision was intimated to the
petitioners, amongst others, by letter of 24 October 2006.
On 5 December 2006,
their London solicitors, Charles
Russell, wrote to the Panel stating that the petitioners intended to challenge
the decision and setting out their reasons for saying that the decision was
unlawful. They sought the agreement of the
Panel that its decision should be set aside and that the appeal should be
re-determined by a differently constituted panel. The letter ended by saying that if the Panel
was not prepared to do this, they had instructions from the petitioners to
arrange for Scottish agents to apply to the Court of Session for an order for
reduction of the decision. The chair of
the Panel responded on 18 December
2006 saying that the Panel did not accept the petitioners'
contentions that it had acted unlawfully and was not prepared to set aside the
decision. No further steps were
intimated on behalf of the petitioners until a petition for judicial review was
lodged on 2 March 2007. A first order was granted on 6 March 2007.
The Panel's response
[8] In
its decision of 20 October 2006,
the Panel first set out the procedure to date and the issues which it had to
decide. In para
5, it identified the issues in these terms:
"(a) neighbourhood;
(b) adequacy of existing pharmaceutical
services in the neighbourhood and in particular, whether provision of
pharmaceutical services at the premises named in the application was necessary
or desirable in order to secure adequate provision of pharmaceutical services
in the neighbourhood in which the premises were located".
Under the heading "Neighbourhood,
adequacy, necessity and desirability", the Panel then summarised, in
considerable detail, the submissions made by the applicants (Dalston Pharmacy Limited, the third respondents) and by the
appellants (United Co-operatives Limited, the petitioners). In their decision, they first dealt with the
question of neighbourhood. The concluded that the neighbourhood should be defined as "the town
of Lockerbie, being bounded by the green fields on its circumference". Their conclusions on neighbourhood are not
challenged. They then turned to deal
with the "Adequacy of existing provision of pharmaceutical services and
necessity or desirability". In view of
the detailed criticism made of this part of their decision, I should set out in
full paras 22-24 of the decision letter:
"22. Having
reached that decision [viz. on neighbourhood], the Panel was then required to
consider the adequacy of 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.
23. [1]
Within the neighbourhood, as defined by the Panel, it
was noted that there was one pharmacy which provided pharmaceutical services to
the town of Lockerbie and the
adjacent villages. [2] The nearest pharmacy outside Lockerbie was located in Lochmaben, approximately four miles distant. [3] It was noted that the existing
pharmacy had only relatively recently introduced needle exchange and Methadone
dispensing. [4] There was no collection and delivery service except for
emergencies. [5] A full delivery service would be available from January
2007. [6] The number of pharmacists present at the current pharmacy on a
daily basis, being one, together with locums, was considered to be inadequate
to meet the requirements of both a very high and above average number of
prescriptions being dispensed every month and the longer consultation demands
of the new pharmacy contract including the provision of the minor ailments
scheme. [7] At the site visit by the Panel that morning, the only
pharmacist on duty was a locum although the number of dispensing assistants was
considered to be sufficient. [8] It was the Panel's view that the
existing pharmacy had not been able to demonstrate its ability to cope with the
requirements of the new contract at the date of the Panel hearing. [9] The
letter from the General Medical Practitioner, Dr Porteous,
had been indicative of a level of inadequacy of pharmaceutical provision to the
neighbourhood. [10] It was the Panel's view that such a letter was most unusual in
criticising the adequacy of pharmaceutical services. [11] The
Panel noted the housing developments under construction and those proposed, in
the neighbourhood, which were considered to be significant, in the context of
an increasing population of the neighbourhood.
24. 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 was necessary 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. In
the circumstances it was the decision of the Panel that the appeal be refused."
The petitioners' criticisms focus
in particular upon para 23. For this reason, and for ease of reference to
the arguments, I have numbered the individual sentences in that paragraph.
Submissions - adequacy of the Panel's reasons
The
petitioners' submissions
[9] As
I have indicated, although the petition sought a reduction of the decision both
on Wednesbury
and Wordie
grounds, it was only the latter that were pressed in argument on behalf of the
petitioner. In support of his general
submission, and as illustrating the sort of reasons which the Panel ought to
have given, Mr Lindsay, for the petitioner, referred me to Safeway Stores plc v National Appeal Panel 1996 S.C. 37,
citing Wordie
and Albyn Properties Ltd v Knox 1977 S.C. 108, and to William
Hill (Caledonian) Ltd v City of
Glasgow Licensing Board 2003 S.L.T. 668.
He accepted that the panel did not have to go into every detail that
informed their decision or to deal with every piece of evidence. However, they had to deal with the
substantive issues and their decision should leave the petitioners in no real
doubt as to what their conclusions were on material issues. This was not a case where they have merely
agreed with the PPC. The arguments had
moved on since the hearing before the PPC, and additional material had been
lodged. Mr Lindsay emphasised that
his complaint about lack of adequate reasons was not merely formal. Unless adequate reasons were given, one could
not tell whether the Panel had adopted the right legal test or whether there
was any procedural unfairness. As an
example of the latter, one of his complaints was that the Panel said very little
about the site visit that they had undertaken.
They should be required to say what they had taken from that visit as
relevant to their decision. Otherwise
there was a risk that they had failed to give the petitioners the opportunity
of dealing with a matter which they had considered relevant: cf. William
Hill (Scotland) Ltd v Kyle and Carrick District Licensing Board 1991 S.L.T. 559,
561F-G.
[10] Turning to the decision itself, Mr Lindsay did not
criticise the Panel's identification of the relevant neighbourhood as being the
town of Lockerbie. Nor did he challenge the formulation of the
test which the Panel set out in paragraph 22 of its decision, provided
that the Panel was aware that it was a two-stage test and that they required to
consider the adequacy of the existing pharmaceutical services in the
neighbourhood before going on to consider whether the granting of the
application was necessary or desirable in order to secure adequate
provision.
[11] Mr Lindsay's main criticisms related to para 23 of the decision letter. He referred first to the way in which the
Panel had dealt with the site visit which it had carried out that morning. This is focused in para 9.1
of the petition. In sentence [7] of para 23
of the decision letter, the Panel says this:
"At the site
visit by the Panel that morning, the only pharmacist on duty was a locum
although the number of dispensing assistants was considered to be sufficient."
Although it was known that there
had been a site visit that morning, nothing had been said at the hearing about
the site visit. If the sole fact that
they had taken away from the visit was that there was only one pharmacists there at the time of the visit, and that he was
a locum, then he had no complaint about that.
But it was unclear what else they had taken into account from the
visit. He referred to the positioning of
that sentence, which he said was "sandwiched in between the two killer
conclusions": namely that the number of pharmacists present at the pharmacy on
a daily basis, being one, together with locums, was considered to be inadequate; and that it was the
Panel's view that the existing pharmacy had not been able to demonstrate its
ability to cope with the requirements of a new contract. There was, he said, a legitimate concern that
the Panel took something from the visit more than the mere fact that there was
only one pharmacist on duty at the time of the visit. There may well have been procedural
unfairness in not putting its concerns to the petitioners. However, without better reasons being given,
the petitioners could not make this criticism good.
[12] Next, under reference to para 9.2
of the petition, Mr Lindsay referred to the finding of inadequacy in the
preceding sentence [6]. This reads as follows:
"The number of
pharmacists present at the current pharmacy on a daily basis, being one,
together with locums, was considered to be inadequate to meet the requirements
of both the very high and above average number of prescriptions being dispensed
every month and the longer consultation demands of the new pharmacy contract
including the provision of the minor ailments scheme."
Mr Lindsay pointed out that in
Mr Brooker's submissions to the Panel he had
dealt with the minor ailments scheme, the provision of a consultation facility
and other matters relating to the questions addressed in that sentence. Yet the Panel had not said what part of
Mr Brooker's submissions it had accepted or
rejected to enable it to reach the conclusion expressed in that sentence, or on
what basis it had accepted or rejected them.
[13] As part of the same complaint, Mr Lindsay drew attention
to the sentences - [9] and [10] - dealing with the letter from
Dr Porteous.
The Panel says this:
"The letter from
General Medical Practitioner, Dr Porteous, had
been indicative of a level of inadequacy of pharmaceutical provision in the
neighbourhood. It was the Panel's view
that such a letter was most unusual in criticising the adequacy of
pharmaceutical services."
In his submissions to the Panel,
Mr Brooker had contested that letter point by
point. He had said that all the
criticisms had been dealt with. There
had been a problem but it was now sorted out.
There had been no complaints since July.
The petitioners had a reasonable concern that the Panel had simply
failed to take account of that evidence.
[14] Mr Lindsay then turned to paragraph 24 of the
decision to develop a criticism made in para 9.3
of the petition. There the Panel said
that it considered that the existing pharmaceutical service in the
neighbourhood was inadequate and was satisfied that the provision of
pharmaceutical services at the premises of the applicant was necessary in order
to secure the adequate provision of pharmaceutical services in the
neighbourhood. They had simply "parroted"
the words of the statutory provision.
The petitioners had a legitimate concern that the Panel had not
addressed its mind properly to the two-stage test. At the second stage, as was shown in the Lloyds Pharmacy case, it was necessary
for the Panel to consider whether the provision of the new pharmaceutical
services at the premises of the applicant was necessary or desirable. Two points had been made, relating to the
location of the new premises and the potential for staff being poached. The Panel had simply not addressed these
points.
[15] In the course of discussion, Mr Lindsay focused on the
fact that the Panel had not even made any finding that the provision of the new
pharmaceutical services was desirable.
In Lloyds Pharmacy it was
emphasised that the words "necessary" and "desirable" served different
functions. If the new pharmacy did no
more than make up the shortfall in existing services, the proposal would be
"necessary". But if the new pharmacy
would result in a degree of over-provision, the Panel could not grant the
application unless it was also "desirable".
The Panel had made no finding that the new pharmacy was desirable. Accordingly, it had erred in law and the
decision should be reduced on that basis.
The
respondents' submissions
[16] Mr Ellis, QC, who appeared for the Panel, drew my
attention first to certain detailed provisions of the Regulations and, in
particular, to Schedules 3 and 4 thereof.
He pointed out that, in terms of Regulation 5(14), the entry in the
pharmaceutical list consequent upon an application being granted by the Board
is to be made after the expiry of the period for appeal or the conclusion of
appeal procedures. He then took me to
the provisions in Schedule 3 dealing with the determination of applications and
the appeal procedures. The functions of
the Board in dealing with applications were to be exercised by the PPC on its
behalf. Any appeal by a disappointed
party against a decision on the application required to be by notice of appeal
given to the Board within 21 days after notification of the decision to that
party: para 4(1). The notice of appeal had to contain "a
concise statement of the facts and contentions upon which the appellant intends
to rely": para 4(3). Any appeal had to be referred by the Board to
the National Appeal Panel. Part II of
Schedule 4 dealt inter alia with the composition of the Panel. I have already referred to its composition: see para [6]
above. Mr Ellis submitted that with
four pharmacists on the Panel, it could properly be described as a specialist
tribunal.
[17] Turning to the requirement for reasons, Mr Ellis pointed
out that the reasons given both in the Lloyd's
Pharmacy case and in Safeway Stores v National Appeal Panel were very brief, but they were, nonetheless, considered
adequate. Wordie was not directly in point
in that it dealt with the question of what level of detail was required for a
planning decision. But it emphasised
that what reasons are adequate will depend on the context, including matters
such as the nature of the tribunal and the scope of the material and arguments
put before the Panel. In addition to the
cases cited by Mr Lindsay, Mr Ellis referred me to South Bucks District Council and Another v
Porter (No.2) [2004] 1 WLR 1953
where the English authorities on the question of adequacy of reasons are
reviewed in the Opinion of Lord Brown of Eaton-under-Heywood at paras 24-34, and summarised at paras
35-36. That summary of the authorities
was referred to with apparent approval by Lord Macphail
in the case of Hyaltech Ltd (unreported, 15 May 2007) at paras
[42]-[43]. Mr Ellis also referred
me to William Hill (Caledonian) Ltd v City of Glasgow Licensing Board 2003
SLT 668, in which, at para [13], the Inner House
approved the observations of Lord McCluskey, in a
licensing case, to the effect that, although an unsuccessful applicant should
be able to ascertain from the reasons why its application has been refused, the
licensing authority was not required to give something approximating to a
judicial judgment, dealing in its reasons with each argument and each piece of
evidence. Those observations were in
point here, though care needed to be taken in seeking guidance on the
particular facts from a licensing case.
The Panel was an expert tribunal which was entitled to use its own
expertise. Mr Ellis submitted that
the court should not be too ready to find that the reasons given were
inadequate; and
that, in assessing a Wordie
challenge, the court should also ask whether the petitioners have been
prejudiced by the alleged inadequacy in the reasons given by the tribunal.
[18] Mr Ellis then turned to consider the decision and
reasons. The Panel had correctly
identified the relevant neighbourhood.
The next stage was to consider the adequacy of the existing provision
and the necessity or desirability of granting the application. In para 22 it
had asked itself the right question. He
proceeded to analyse para 23 of the reasons. In sentence [1], having identified the neighbourhood as Lockerbie, the Panel
had noted that the petitioners' pharmacy provided pharmaceutical services to
Lockerbie and to the surrounding villages.
In sentences [3] - [5] the
Panel had noted a problem with needle exchange and collection and
delivery. The first significant
observation relevant to the adequacy of existing provision was in sentence [6].
One pharmacist on duty on a daily basis was not considered to be
adequate, even with locums. This
criticism was supported from the observation, in sentence [7], that during the site visit, only one pharmacist, and that a
locum, was on duty. Mr Ellis
rejected the suggestion that the Panel had taken something from the site visit
which it had not raised with the petitioners.
The Panel had said what reliance it had placed on the site visit. The visit simply provided anecdotal support
for the fact that only one pharmacist was on duty at any one time. The point about there only being one
pharmacist on duty at any one time had been raised by the Panel with Mr Brooker of the petitioners (see para 18
of the decision letter). Despite his
comments, the Panel had come to the view that one pharmacist on duty at any one
time was inadequate. In sentence [6], the Panel had referred to the
demands of the new contract. Mr Brooker had made submissions on this too (also recorded in para 18 of the decision letter). Nonetheless, the Panel's view was that the
petitioners had not demonstrated its ability to cope with the requirements of
the new contract: sentence [8].
The letter from Dr Porteous referred to in
sentences [9] and [10] supported the Panel's view that one pharmacist on duty was
not enough. The Panel had not fallen
into the error of saying that that letter reflected the present position. But it was entitled to take it into account
in considering whether the petitioners had persuaded it of their ability to
provide adequately both now and in the future for the increased demands. Similarly, the Panel was entitled to have
regard to the increasing population - see sentence [11] - as relevant to its judgment of whether one pharmacist on
duty was enough for the future, and to assess this against the background that
one pharmacist had been shown to be inadequate in the past. It had not been submitted that that
consideration was irrelevant. The
complaint that the Panel did not deal expressly with each of Mr Brooker's points concerning the adequacy of the service was
without substance. This was an expert
tribunal. It concluded that it was not
satisfied, having heard Mr Brooker and taken
account of the other material and its own expertise, that the existing
provision was adequate. In para 14 of the decision letter, the question of the
minor ailments scheme had been raised.
Although Mr Brooker had said that they
had been providing that service without problems for two months, it appeared
from para 17 that he had no information about
the numbers involved and was unaware of the General Practitioner having to obtain
pharmaceutical items from Mr Stakim's pharmacy
in Cumbria. The Panel was entitled to regard the letter
from Dr Porteous as indicative that there had
been problems and was entitled to conclude that the petitioners had not
demonstrated their ability to cope with the requirements of the new
contract. There was material that the
Panel was entitled to take into account concerning the numbers of
prescriptions. The Panel was not
required to set out in its reasons a comprehensive analysis of the competing
evidence. There was no reason to suppose
that it had ignored that evidence. It
was clear what view they had come to. In
summary, Mr Ellis submitted, the Panel had given quite a full statement of
the thinking behind its view that the existing provision was inadequate,
particularly bearing in mind the expertise it had which enabled it to make an
informed assessment of the material presented to it.
[19] Mr Ellis next turned his attention to para
24 of the decision letter. The Panel
re-iterated that the existing provision was inadequate. It then, correctly, moved onto the next stage
of considering whether the provision of services at the new pharmacy was
necessary to secure the provision of adequate services in the
neighbourhood. It was not necessary for
the Panel to do more than state its conclusion that it was necessary. If the present provision was inadequate,
further provision was clearly necessary to make good the shortfall. The petitioners complained that the Panel had
not dealt with the concerns expressed at the hearing about the location of the
new pharmacy and about the risk of staff poaching. But neither of these issues was relevant to
the question of necessity. Necessity was
demonstrated by the finding that the present service was inadequate.
[20] Finally Mr Ellis addressed the point raised by
Mr Lindsay that the Panel had not dealt with the question of
"desirability". He pointed out that this
attack on the decision was not foreshadowed in the Petition. He did not take the point that it could not
be raised without amendment of the Petition, nor did he submit that he needed
more time to deal with it. However, he
submitted that it was inappropriate to admit a new case at this stage. The Panel had to deal with the arguments and
material placed before it. The notice of
appeal set out the petitioners' grounds on which it challenged the decision of
the PPC. The question of "desirability"
in the technical sense used in the Regulations and explained in the Lloyds Pharmacy case, as a necessary
hurdle to be overcome if the proposed new pharmacy would result in over
provision, had not been raised. It was
not necessary for the Panel to consider it.
Further, the criticism of the Panel's failure to deal with desirability
proceeded upon the factual assumption that including the new pharmacy on the
Pharmaceutical List would result in over provision. The respondents did not accept that
assumption. There is no finding to that
effect in the decision letter, nor any reason to suggest that the Panel ought
to have made such a finding.
[21] On this question of adequacy of reasons, Mr Wallace, for
the third respondents, was content to adopt the submissions of Mr Ellis.
Submissions - mora,
taciturnity and acquiescence
The
respondents' submissions
[22] The argument on mora, taciturnity and acquiescence was developed principally
by Mr Wallace. Mr Ellis
adopted his submissions, in advance, but added certain comments of his own on
the facts as seen from the perspective of the Panel. The Panel had made its decision on 20 October 2006. On that date, in terms of Regulation 5(14),
the Board was required to enter the applicants on the Pharmaceutical List. The petitioners received notification of the
decision within a few days, under cover of the letter of 24 October 2006.
They instructed solicitors. The
letter from Charles Russell, on their behalf, requesting the Panel to set aside
its own decision made it clear that they intended to challenge the
decision. Grounds of challenge were set
out in their letter and it is to be assumed that they had by then taken advice
from counsel. They required a reply from
the Panel by 27 December 2006; and, if the Panel
was not willing to confirm that it would consent to reduction of the decision,
they sought the name and address of solicitors for service of legal proceedings
for judicial review. By letter of 18 December 2006 the Panel
stated that it would not agree to set aside the decision. One would have expected the petitioners to
proceed with their legal challenge if they were serious about it, particularly
given the time limits for the Board acting upon the decision. But they did nothing, so far as the respondents
were concerned, until commencing proceedings for judicial review at the
beginning of March 2007. There was no
further correspondence from them in the interim, no indication that the
prospect of a legal challenge was still live and no explanation of the
delay. By the time of their letter of 5 December 2006 the petitioners
were aware of everything of which they needed to be aware to commence
proceedings. They would have known that
the third respondents were going ahead with establishing their business. In circumstances where the petitioners ought
to have been doing something, that failure to act infers acquiescence. The letter of 5 December 2006 itself gives rise to the need to get
on and take further steps promptly if any further steps are to be taken. Where good governance requires steps to be
taken promptly, acquiescence can be inferred from a relatively short period of
delay. The Panel have identified a
shortfall in provision of pharmaceutical services which remains unremedied.
[23] Mr Wallace adopted what Mr Ellis had said about the
facts. He added that even prior to the
hearing before the Panel, the petitioners had known
that the third respondents were intent on purchasing the premises subject to
gaining inclusion on the Pharmaceutical List and subject also to planning
permission for change of use. The third
respondents proceeded with the purchase under the impression they had formed
that it was now too late for the petitioners to go further with their
challenge. Completion was on 9 February 2007. They were entitled to take that view. They had started work on altering the
premises on 23 February 2007
and had incurred, and had committed themselves to incurring, expense in
stripping out the premises. They had
employed a pharmacist and had opened on 7 May 2007 (though I was told
that, pursuant to an undertaking given to the petitioners, they were not yet
dispensing NHS prescriptions, and the pharmacist newly employed by them was
presently doing locum work). Mr Wallace submitted that acquiescence
could be inferred when there was a strong public interest, for reasons of good
administration, in achieving finality.
There was no reason in practice why proceedings for judicial review
could not have been started much earlier, say by mid January 2007. There was no real explanation of the delay.
[24] Mr Wallace referred me to Somerville v
The Scottish Ministers 2006 SLT 96.
The discussion on mora
began at p.119. At p.120E-F the court
had referred to circumstances in which the passage of time might lead to
acquiescence. Although usually one party
will have altered his position, the concept of good administration also played
a part. At p.120K-L it was emphasised
that prejudice or reliance were not necessary elements of the plea; at most they were
circumstances from which acquiescence might be inferred. Mr Wallace said that he did not submit
that prejudice was enough without acquiescence.
He referred me also to Simson v Kincardine and Mearns
Area Planning Committee (unreported, 25 January 2007).
At para [29] of his Opinion in that case,
Lord Abernethy had referred to the requirements of good administration
requiring people aggrieved by a decision to take prompt action to challenge
it. The remarks of Lord Diplock in O'Reilly v Mackman
[1983] 2 AC 237, 280-281 were cited with approval. On the primary facts in that case, the delay
was 15 months after the decision to grant planning permission. But assuming a different punctum temporis, the delay was only about 12
weeks. Lord Abernethy considered that
the Lord Ordinary had been entitled to find that even a delay of this length
amounted to mora. On this issue, both of the other members of
the court agreed with Lord Abernethy.
Mr Wallace referred me also to Devine
v McPherson 2002 SLT 213 at paras [22] - [24], in which Lord Eassie
had remarked that the recipient of planning consent "may well be likely to
proceed, with relative despatch, to organise his affairs on the basis of having
such a consent".
He emphasised the need for the objector to act "with alacrity". Mr Wallace emphasised that here the
petitioners knew about the intention of the third respondents to act upon the
basis of the decision in their favour.
The petitioners could not have been in any doubt as to the need for
certainty in decision making. They must
have been aware that inactivity on their part could be seen as
acquiescence. Towards the end of
January, the third respondents looked at the position and told themselves that
it was all right to proceed. Some might
categorise that decision as rash, but it was foreseeable that they would act in
this way. They could have asked the
petitioners whether they were proceeding with a challenge, but there was no
need to do so if they believed that the petitioners had by then acquiesced in the
decision.
Petitioners'
submissions
[25] For the petitioners,
Mr Lindsay made his submissions in two parts: first in anticipation of what was going to be
said by counsel for the respondents; and
then in reply to their submissions. He
submitted that there was no merit in the plea.
The third respondents had been put on notice by the letter of 5 December 2006 that a legal
challenge was to be made. They went
ahead with purchasing the property in early February 2007 with their eyes
open. There was no "taciturnity" by the
petitioners. The letter of 5 December 2006 is sufficient to
prevent that part of the plea being made good.
The petition for judicial review was lodged on 2 March 2007 and a first order was granted on 6
March. The overall passage of time from
the Panel's decision until the commencement of proceedings was just over 4
months. There could be no inference of
acquiescence. In light of the letter of 5 December 2006, there could be
no inference that the petitioners were not intending to proceed with a petition
for judicial review. Having been put on
notice, it was up to the third respondents to decide whether or not to take the
risk of going ahead. If they were in
doubt as to the petitioners' intentions, they should have asked.
[26] Mr Lindsay referred me to the decision of Lord Carloway in Edgar
Road Property Company v Moray Council
and others (unreported, 29 May
2007). At para [23] Lord Carloway
emphasised that, despite occasional suggestions to the contrary, the plea of mora does not seek
to invoke the court's discretion, rather it is for the court to determine
whether, on the facts presented, the party founding upon it has established
that the plea is applicable. Mere delay
is not enough. There must be additional
elements of taciturnity and acquiescence.
There was no hint of those elements in the present case. Whilst a very lengthy delay might be enough
to overcome a protestation in the correspondence, the lapse of three months,
which is all there was in the present case, was not enough. Mr Lindsay also referred me to Somerville at
pp.119-120. The respondents' reference
to there being a public interest in the provision of pharmaceutical services
begged the question at the heart of this dispute; it was the petitioners' contention, which
they sought to justify, that there was already adequate provision; and that the public interest was best served
by them remaining the only pharmacist in Lockerbie. Nor should the court assume that there was
significant prejudice to the third respondents in having incurred expenditure
on doing up the premises. It was not
money down the drain; the
premises would still have a commercial value.
Discussion
[27] Although it was dealt with as part of the discussion, and
indeed was argued second, it is appropriate to start by considering the plea of
mora,
taciturnity and acquiescence.
mora, taciturnity and acquiescence
[28] In Edgar Road Property,
at paras [23] and [24], Lord Carloway
described the present state of the authorities on the plea of mora, taciturnity
and acquiescence in this way:
"[23] There have been a number of attempts in the
recent past to persuade the Court that delay in bringing judicial review
proceedings should of itself operate as a bar, having regard to the need for
certainty and efficiency in certain fields of administrative law, notably
planning (see Pickering v Kyle and Carrick District Council (supra)
at 50); Uprichard v
Fife Council (supra) at 955). It is
recognised that the principles of mora, taciturnity and acquiescence, as they have been
developed in private law fields such as contract, do not sit entirely easily in
the arena of public administration (Pickering v
Kyle and Carrick District Council (supra) Lord Penrose at 53). Perhaps because of this, the Court has
occasionally ventured to suggest that the determination of whether a plea of mora is made out
in the context of judicial review is a matter for the court's discretion having
regard to a variety of factors, including the need for sound administration (Uprichard v
Fife Council (supra), Lord Bonomy at
956). The Court does appear to have
approached the matter from that angle at times (Atherton v Strathclyde
Regional Council (supra), Lord Cameron at 559). However, although the idea of the Court's
decision on the plea being one of discretion was floated during the hearing in
this case, it was, quite correctly, not pursued by any party. The decision is not a discretionary one but
one involving the Court determining whether the party founding upon it has
established that the plea is applicable on the facts presented.
[24] The
common law principles surrounding the plea remain broadly intact. Mere delay is not enough. There must be the additional elements of
taciturnity and acquiescence (Assets Co v Bain's Trs
(supra), Lord President (Kinross) at 705, followed in Singh v Secretary of State
for the Home Department (supra), Lord Nimmo Smith
at 537; R (Burkett) v Hammersmith LBC
(supra), Lord Hope at 1613). Lord
Penrose's analysis in Pickering v
Kyle and Carrick District Council (supra at 55) certainly clings onto the
common law principles, but his test bears repetition here given its specific
planning context:
"The essence of the plea
... is that the person or persons having a legitimate ground of challenge
refrain from exercising the rights which flow from that ground of challenge, or
from intimating an intention to exercise those rights, in circumstances in
which, to their knowledge, the holder of a planning permission proceeds with
material operations in reliance upon the permission, and so alters his position
that there would be loss or other form of prejudice to him if the permission
were to be reduced".
This is a relatively restrictive test and perhaps
more so than the one applied by Lord Prosser in Hanlon v Traffic Commissioner
(supra at 805), where he addressed the 'reasonableness' of the delay. For present purposes, however, I will proceed
upon the basis that it is an accurate reflection of the current law."
In the discussion before me, there
was little or no disagreement as to the relevant principles. All parties agreed that mere delay was not
sufficient. There had, in addition, to
be taciturnity and acquiescence. I
propose to proceed on that basis. I note
the suggestion in the recent decision of the Inner House in Barrie Tonner v Reiach and Hall
(unreported, 12 June 2007) at para [114] that there
may be a distinction between the plea referred to as a plea of mora in judicial
review cases, invoked when there has been undue delay in seeking judicial
review, and the common law plea of mora in cases of private right. If there is such a distinction, it may be
because the full requirements of plea of mora are inapplicable to some
cases of judicial review. For example,
if the common law requirement of taciturnity is a requirement of the plea in a
judicial review context, the objector may in practice be able to hold up
implementation of, or reliance on, a decision by continually threatening action
without actually taking legal proceedings.
However, there is no need for me to consider this further in this case.
[29] In delivering the Opinion of the court in Somerville - a
case which does not appear to have been cited in Edgar Road Property - the Lord President referred to a number of
authorities dealing with the question whether delay by itself could be a bar to
successful proceedings for judicial review (see para [92]
of the Opinion). In particular, he cited
a lengthy passage from the opinion of Lord Nimmo
Smith in Singh v Secretary of State for the Home Department 2000 SLT 533 at
537. In Singh, Lord Nimmo Smith quoted the
well-known passage in the opinion of Lord President Kinross in Assets Co Ltd. v Bain's Trustees (1904) 6 F 705 to the following effect:
"[that] in order to lead to
such a plea [of mora]
receiving effect, there must ... have been excessive or unreasonable delay in
asserting a known right, coupled with a material alteration of circumstances,
to the detriment of the other party"
and went
on to give this summary of the law:
"It does not appear to me to be possible to define
the plea of mora, taciturnity and acquiescence more
precisely than the dictum in Assets Co. Limited v Bain's Trustees to which I have made reference. The plea is necessarily protean and it must
depend on the particular circumstances of the case whether or not its
requirements are satisfied. There may be
cases where the passage of time, as related to the surrounding circumstances,
may be such as to yield the inference of acquiescence in the decision in
question. Usually, there will have been
such alteration of position on the part of one of the parties, or of third
parties, as, together with the passage of time, to yield the inference of
acquiescence. The petitioner may,
however, be in a position to put forward an explanation for the delay
sufficient to rebut the inference. The
concept of detriment to good administration appears to me to have a part to
play in all of this, not as an abstraction but where further administrative
action has been taken in the belief that the decision in question has been
acquiesced in."
Having considered these
authorities, the Lord President in Somerville said this (at para [94]):
"We have quoted
the passage from Lord Nimmo Smith's Opinion in Singh ... because counsel
were agreed that this was the fullest treatment of the subject in
judicial review cases. While we are
content to adopt it, we would emphasise that prejudice or reliance are not
necessary elements of the plea. At most,
they feature as circumstances from which acquiescence may be inferred. By its nature, acquiescence is almost always
to be inferred from the whole circumstances, which must therefore be the
subject of averment to support the plea."
This insistence that neither
prejudice nor reliance is a necessary element of the plea is an important reminder
that the whole plea of mora,
taciturnity and acquiescence looks to the conduct of the would-be pursuer or
petitioner, and the inferences sought to be drawn from that conduct. The essence of the plea is acquiescence, to
be inferred from the petitioner's inaction.
Although the three elements of the plea overlap and, indeed, coalesce, I
think it is helpful, in considering a plea of mora, taciturnity and
acquiescence, first to consider separately the questions of mora and taciturnity before going
on to assessing what inferences fall to be drawn from those factors in the
context of the whole of the surrounding circumstances.
[30] The term mora
refers to the delay in bringing legal proceedings to challenge the decision
complained of. In cases of private
right, the relevant periods are likely to be counted in years, not months. In cases of judicial review, the plea is
likely to be invoked where the delay is much shorter. That can be explained by the administrative
law context and, more particularly by the requirements of good administration; not "as an
abstraction" (per Lord Nimmo Smith in Singh), but because the statutory or
administrative context shows that some decisions are likely to be acted upon
promptly; and therefore, if they are to
be challenged, should be challenged "with alacrity". This is the expression used by Lord Eassie in Devine
at para [22] in the context of the grant of planning
consent, but similar considerations seem to me to apply in a context such as
the present. Mora simply means delay beyond a reasonable time. What is a reasonable time will depend on all
the circumstances. The requirements of
good administration rank high amongst those circumstances. In Scotland,
there is no fixed time within which steps require to be taken to commence
proceedings for judicial review. In
assessing what is a reasonable time, account must, of course, be taken of the
complexity of the matter, and the need to take advice, gather information, and
draft proceedings. In some cases, this
will require considerable time; but in others, because the issues are
narrow and may already be well known at the time of the decision, there will be
no reason why the petition cannot be prepared and lodged within weeks. Other factors may dictate that the aggrieved
party may have to move with particular expedition. For example, he may be aware that other
parties are in fact organising their affairs on the strength of the decision,
or are intending to do so. In such
circumstances, he will need to get a move on.
[31] In the present case, the Panel's decision was known to the
petitioners by late October 2006. A
solicitor's letter was sent on behalf of the petitioners on 5 December 2006, i.e. within
about six weeks of the decision. It
asked the Panel to reduce its own decision and gave a deadline for a favourable
response. The clear implication behind
that deadline was that legal proceedings would follow promptly if a favourable
response were not received by then. The
Panel responded negatively on 18 December.
Yet proceedings were not begun until the beginning of March 2007. It is clear from the letter of 5 December 2006 that the
petitioners had taken legal advice (though possibly not from Scottish
lawyers). The reasons for challenge in
the letter were brief;
and it cannot be said that the grounds in the petition raise
particularly complex issues. This
chronology must also be viewed against the background of the short time limits
for action to be taken on the basis of the Panel's decision; and, in the particular circumstances of
this case, against the background of the petitioners knowing that completion of
the Dalston Pharmacy's purchase of the new premises
was likely to take place in reliance, at least to some extent, on the Panel's
decision. In those circumstances, it
seems to me that the period of over four months between intimation of the
Panel's decision to the petitioners and the commencement of proceedings for
judicial review is considerably in excess of what could reasonably be
justified. On that basis, I am satisfied
that the petitioners have been guilty of mora or undue delay.
[32] Taciturnity simply connotes a failure to speak out in assertion
of a right or claim when a reasonable person in that position would be expected
to speak out. Here the only
communication from the petitioners was in the letter from their solicitors of 5 December 2006. Mr Lindsay argued that this letter
showed that there had been no taciturnity.
I do not agree. Of course, that
letter contained an assertion on behalf of the petitioners of their perceived
rights. But it also gave rise to an
expectation that, if a favourable response were not received from the Panel,
legal proceedings would follow promptly.
Such an expectation was disappointed.
For just over two and a half months after the Panel's response, the
petitioners neither commenced proceedings nor gave any indication that they
were going to do so. They were wholly
silent. Against the background of the
implied threat in the letter of imminent proceedings, this silence must have
seemed eloquent of a change of heart by the petitioners. In my opinion the plea of taciturnity over
the period following the response to the letter is made out.
[33] What then of acquiescence?
Acquiescence simply means assent to what has taken place. The enquiry is not a subjective one, to be
answered by looking into the mind of the petitioner. The test is objective. Acquiescence requires to be inferred from the
petitioners' inaction and silence. The
question is how the matter would have appeared to a reasonable person observing
the petitioners' conduct, knowing of all the circumstances of which the
petitioners knew or ought to have known when acting in the way they did. The same facts as inform the assessment of mora and
taciturnity are relevant to the question of acquiescence. As is pointed out in Somerville, it
is not necessary for the respondents to prove reliance or prejudice. Proof of such matters is, in my view,
relevant not to acquiescence but to personal bar. When considering acquiescence, it is of no
interest how the person at whom the conduct was directed understood it, and so
understanding it, relied on it. What is
of interest is the knowledge which the petitioners had or could reasonably be
expected to have, including knowledge of whether others are likely to act on
the basis of the decision of which they complain. Attention is focused solely on how, in such
circumstances, their conduct is to be characterised.
[34] I consider that anyone looking objectively at the petitioners'
actions as at, say February 2007, would have concluded
that the petitioners had decided not to challenge the Panel's decision. In other words, they would have concluded
that the petitioners had, albeit reluctantly, acquiesced in it. The petitioners knew, or ought to have
appreciated, that a challenge to this sort of decision had to be made
promptly. The petitioners also knew that
the Dalston Pharmacy was intent on going ahead with
the purchase of the premises subject inter
alia to inclusion on the pharmaceutical
List. Having got a decision in their
favour, they could not be expected to wait forever. The letter of 5 December 2006 would have told interested parties
that the petitioners had taken legal advice and were bent on a legal
challenge. But no legal challenge was
made, despite a rebuff from the Panel.
In those circumstances it seems to me that the obvious implication is
that the petitioners had decided not to go ahead with their challenge. The fact that the Dalston
Pharmacy proceeded to completion in February 2007 is interesting but not
essential. And since the actual
understanding of the respondents is not relevant, it matters not that they
could, before proceeding to completion, have checked with the petitioners to
ascertain whether they were going ahead with their legal challenge. In case this matter goes further, I should
say that it is clear that the third respondents did rely on the decision and on
the petitioners' failure to commence legal proceedings to challenge that
decision. But I base my decision not,
primarily, on that but rather on the view which I have taken that the
petitioners' delay in taking proceedings coupled with their silence after their
solicitors' letter of 5 December
2006 infers acquiescence on their part.
Adequacy
of reasons
[35] There was little, if any, dispute between the parties as to the
law applicable to such a complaint. The
principles are well known. I do not
propose to re-state them here. They are
conveniently summarised in para 36 of the speech
of Lord Brown of Eaton-under-Heywood in South
Bucks District Council v Porter
(No.2):
"The reasons for a decision must be intelligible and
they must be adequate. They must enable the reader to understand why the matter
was decided as it was and what conclusions were reached on the 'principal
important controversial issues', disclosing how any issue of law or fact was
resolved. Reasons can be briefly stated,
the degree of particularity required depending entirely on the nature of the
issues falling for decision. The
reasoning must not give rise to a substantial doubt as to whether the
decision-maker erred in law, for example by misunderstanding some relevant
policy or some other important matter or by failing to reach a rational
decision on relevant grounds. But such
adverse inference will not readily be drawn. The reasons need refer only to the main issues
in the dispute, not to every material consideration. They should enable disappointed developers to
assess their prospects of obtaining some alternative development permission,
or, as the case may be, their unsuccessful opponents to understand how the
policy or approach underlying the grant of permission may impact upon future
such applications. Decision letters must
be read in a straightforward manner, recognising that they are addressed to
parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the
party aggrieved can satisfy the court that he has genuinely been substantially
prejudiced by the failure to provide an adequately reasoned decision."
Although that was said in the
context of a planning decision, it applies generally to decisions of this
sort. Many of the relevant authorities
are planning cases. The other authorities
cited by counsel, whether or not in the field of planning, all pointed in a
similar direction, some emphasising one aspect of the approach, some another.
[36] I propose to consider Mr Lindsay's criticisms of the
adequacy of the reasons by reference to the heads under which he advanced his
arguments. The first complaint is that
the Panel failed to specify what adverse inferences they drew from the site
visit. In my opinion this criticism must
fail, if for no other reason than that there is nothing to suggest that they
took from the site visit anything more than they set out in line [7] of para 23. The positioning of that sentence,
"sandwiched" though it may be, does not lead to any inference that they were
doing any more than referring to their site visit by way of confirmation that
there was generally only one pharmacist on duty.
[37] The second complaint is that the Panel failed to provide any
reasons for concluding that one pharmacist was inadequate. This criticism fails too, in my
judgement. The assessment of the
adequacy of the service provided by the petitioners is essentially a matter for
the Panel. I accept Mr Ellis'
submission that the Panel is an expert tribunal. Four of the nine members are
pharmacists. The assessment required by
Regulation 5(10) is one requiring expert evaluation. In giving its reasons for its evaluation, the
Panel cannot be expected to deal in detail with every matter raised in argument
and on the evidence. Nonetheless, it has
given reasons in the instant case which, in my opinion, are intelligible and
explain succinctly why they have come to their view. The nub of those reasons is contained in
sentences [6] and [8] of para 23. The Panel has formed the view that one
pharmacist is inadequate to meet the current and future requirements. It was not satisfied with the attempts on
behalf of the petitioners to demonstrate their ability to cope with the
requirements of the new contract.
Although the Panel says that the existing pharmarcy
"has not been able to demonstrate its ability to cope ...",
I do not think that this should be read as in some way placing the onus of
proof on the petitioners. It is more
fairly to be read as part of the overall conclusion reached by the Panel - in
light of its assessment that one pharmacist was inadequate, and in light of the
evidence from Dr Porteous' letter that there had been
a level of inadequacy - that the service provided by the petitioners was not
adequate for either the existing or future needs of the neighbourhood. The last sentence, sentence [11], simply highlights the fact that ,with an increasing population, the future needs for
which pharmaceutical provision will be required will be all the greater. It is true that Mr Brooker
sought to persuade the Panel to reach a contrary view. His arguments were obviously not
accepted. It was not incumbent on the
Panel to refer specifically to each point he made. Their essential finding of inadequacy is
clear. In my opinion the Panel has set
out its reasons adequately.
[38] Mr Lindsay's third point, namely that in para 24 the Panel does not give any reasons for
finding that the provision of pharmaceutical services at the new premises is
necessary, is correctly answered by Mr Ellis' submission that necessity is
established once it has been determined that the existing provision is
inadequate. As is said in Lloyds Pharmacy at para [11],
"if the proposal under
consideration does no more than make up the shortfall, that proposal will obviously
be 'necessary' to secure adequate provision of pharmaceutical services in the
neighbourhood." [emphasis added]
Matters such as the location of the
new premises and the risk of poaching of staff have nothing to do with this
assessment.
[39] I have recorded that Mr Lindsay also sought to argue that
the Panel had erred in law in failing to deal with the question of
desirability. This was never raised by
the petitioners in the appeal to the Panel.
The Panel was, therefore, not asked to deal with it in its decision or
its reasons. The question of
desirability only arises if the establishment of the new pharmacy would lead to
a measure of over-provision. One has to
be careful about this. There is no clear
line to be drawn. It is not an exercise
capable of mathematical certainty. To my
mind, the concept of desirability comes into play only where the establishment
of the new pharmacy would result in substantial over-provision. In Lloyds
Pharmacy, at para [11], the court went on
from the passage cited in the last paragraph to say that the use of the word
"desirable" was intended to permit the approval of a proposal where the
services to be provided by the new pharmacy "may go further [viz., than merely
making up the shortfall], and result in a degree of over-provision". I do not think that the court intended that
to include some minor over-provision resulting from the new pharmacy doing a
little more than making up the shortfall.
It is difficult, where the assessment of the adequacy of the existing
services is, at least in part, qualitative, to see how, in a borderline case,
one could decide whether the listing of the new pharmacy would result in some
minor over-provision, so as to require the Panel to address the question of
desirability rather than necessity. Be
that as it may, in the first instance, if these matters are raised, it is for
the Panel to consider whether there will be over-provision and, if so, whether
the new pharmacy is desirable. The Panel
has to form a view. On a petition for
judicial review, any view expressed by the Panel could only be challenged on Wednesbury grounds. Since the Panel was never asked to deal with
this point, and make findings, I consider that it would be quite wrong now to
allow this new point to be taken at this stage.
[40] For these reasons I reject the petitioners' argument that the
Panel failed to give adequate reasons for its decision.
Disposal
[41] In the result, therefore, I shall sustain the first, second and
third pleas-in-law for the first respondents and the first second and fifth
pleas-in-law for the third respondents, repel the
petitioners' pleas-in-law and refuse the prayer of the petition.
