BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> United Co-Operative Ltd, Re Application for Judicial Review [2007] ScotCS CSOH_125 (12 July 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_125.html
Cite as: 2007 SLT 831, [2007] CSOH 125, [2007] ScotCS CSOH_125

[New search] [Context] [Printable version] [Help]


 

OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 125

 

P550/07

 

 

 

 

 

 

 

 

 

 

 

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________________

 

 

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.

 


BAILII:
Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_125.html