Dickson v Pharmaceutical Society of Great Britain
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Morris Of Borth-Y-Gest,Lord Hodson,Lord Upjohn,Lord Wilberforce |
| Judgment Date | 29 May 1968 |
| Judgment citation (vLex) | [1968] UKHL J0529-1 |
| Date | 29 May 1968 |
| Court | House of Lords |
[1968] UKHL J0529-1
Lord Reid
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Upjohn
Lord Wilberforce
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Pharmaceutical Society of Great Britain and another against Dickson, that the Committee had heard Counsel, as well on Monday the 18th, as on Tuesday the 19th, Wednesday the 20th, Thursday the 21st, Monday the 25th and Tuesday the 26th, days of March last, upon the Petition and Appeal of the Pharmaceutical Society of Great Britain and James Cecil Bloomfield, both of 17 Bloomsbury Square, London, W.C.I. praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 26th of January 1967, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Robert Campbell Miller Dickson, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 26th day of January 1967, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, such costs to include the attendance of three Counsel on behalf of the Respondent, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The first Appellant is a Society incorporated by Royal Charter in 1843. Its objects are now set out in a Supplemental Charter of 1953. The second Appellant is its president. By statute all registered pharmacists are members of the Society. It is claimed, I think rightly, that pharmacy is a profession. It is necessary to pursue a course of study and training and to pass a wide ranging examination before one can become a registered pharmacist, and the work of a pharmacist in dispensing medicine is highly skilled and responsible.
A main object of the Society is "to maintain the honour and safeguard and promote the interests of the members in their exercise of the profession of pharmacy". In addition to statutory provisions there are a number of rules for the guidance of members which have been adopted by the Society from time to time. When necessary the Council of the Society seek to enforce these rules by bringing pressure to bear on those who do not comply with them and ultimately by bringing the matter before a Statutory Committee which has power to order removal from the register of the name of a pharmacist who has been guilty of misconduct which in its opinion renders him unfit to have his name on the register.
There are about 29,000 registered pharmacists. Some, such as those employed in hospitals, have no other duties than the professional task of dispensing. But the typical pharmacist owns or is employed in a chemists shop where goods other than dispensed medicines are sold to the public. Such goods have been divided into three classes: first "professional" which include, besides medicines and sick room requirements, agricultural, horticultural and industrial chemicals and various scientific and other appliances: secondly "traditional" which, largely for historical reasons, include cosmetics and photographic requisites: and thirdly "non-traditional" which include a wide variety of articles which many pharmacists have found it profitable and convenient to sell in chemists shops. So most pharmacists act in a dual capacity, combining retail trading with their professional work.
That pharmacists should be engaged in trade is regarded by many pharmacists as undesirable. But it is generally recognised that comparatively few chemists shops could survive without engaging in some degree of trading. The present policy of the Council of the Society is to restrict trading activities so far as is economically practicable as well as to ensure that such activities are carried on in a manner compatible with the professional character of pharmacists. It has been one of their objects to raise the status of the profession.
In 1955 a Committee was set up, and, after extensive consultation, it submitted a report. A number of its recommendations, with some alteration, were incorporated in a motion which was passed by a large majority at a largely attended general meeting on 25th July, 1965. The motion was as follows:
"New pharmacies should be situated only in premises which are physically distinct, and should be devoted solely to:
(i) professional services, as defined in paragraph 19 of the Report of the Committee on The General Practice of Pharmacy
(ii) within the limits recommended in the Report non-professional. services as defined in paragraph 19 of the Report, and
(iii) such other services as may be approved by the Council; and the range of services in existing pharmacies, or in pharmacy departments of larger establishments, should not be extended beyond the present limits except as approved by the Council."
The Respondent is a Director of Boots Pure Drug Co. and is a member of the Society. In this action he seeks a declaration and injunction and on 23rd June, 1966, Pennicuick J. made an order declaring
"That it is not within the powers purposes or objects of The Pharmaceutical Society of Great Britain hereinafter called the Society to enforce or carry out or attempt to enforce or carry out the provisions of the Motion specified in the Pleadings and set forth in the Schedule hereto or any of the said provisions on the ground that the said provisions are in restraint of trade."
That Order was affirmed by the Court of Appeal.
The Appellants maintain for a number of reasons that this declaration should not be made. In the first place they say that there is no justiciable issue. But I agree with your Lordships that this contention must be rejected. If this motion stands it becomes a rule of professional conduct and the Appellants do not deny that they will do their best of enforce it. So a pharmacist who does not restrict his trade in this way may be reported to the Statutory Committee and he will be at risk of that Committee finding that he has been guilty of misconduct and of being deprived of his professional qualification. In my judgment the Court has the power and duty to determine this question at this stage.
In every profession of which I have any knowledge there is a code of conduct, written or unwritten, which makes it improper for members of the profession to engage in certain activities in which ordinary members of the public are quite entitled to engage. Normally this is regarded as a domestic matter within the profession. But it appears to me that if a member of a profession can shew that a particular restriction on his activities goes beyond anything which can reasonably be related to the maintenance of professional honour or standards, the Court must be able to intervene. And in the present case there is a question whether these restrictions are within the objects of the Society. In Jenkin v. Pharmaceutical Society [1921] 1 Ch. 392 it was held that certain attempts to regulate trading by the members were ultra vires. But the Respondent does not dispute that the Society is entitled to regulate such trading activities in so far as that is reasonably necessary to achieve the Society's objects set out in the Charter. So it becomes a question whether these restrictions can property be related to the maintenance or improvement of the status of the profession of pharmacy.
That these restrictions are in restraint of trade cannot be doubted. Any pharmacist who opens a new chemists shop can only sell professional or traditional goods in it, and in any existing chemists shop no new classes of non-traditional goods can be sold unless the Council consents. This restraint may severely hamper the shopkeeper, and indeed it may make the business so unprofitable that the shop has to be closed. I need not consider the wider aspect of public interest, whether that might seriously inconvenience members of the public who wish to have prescriptions dispensed or to buy medicines.
The Respondent argues that, as this motion would operate in restraint of trade, the ordinary principles of restraint of trade apply so that the Appellants must plead and prove justification. I am very doubtful whether that is so where restraints exist as part of a code of professional conduct. If the ordinary rule were to apply, any member of a profession who wanted to make more money by disregarding some long standing rule of professional conduct could require the restraint to be justified without himself having to allege and prove that the rule was unreasonable. The onus would be on the body defending the standards of the profession and, unless the tests laid down in the authorities are to be altered, I do not see how the Court could limit the extent to which it would interfere in the domestic affairs of the profession. On the general question of the ordinary rules of restraint of trade I may be permitted to refer to what I said in Esso Petroleum v. Harpers Garage [1967] 2 W.L.R. 871 at page 876 and the following pages. But I do not think it necessary to pursue this matter because, wherever the onus may lie in this case, I am of opinion that these restrains cannot reasonably be related to the objects of the...
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