Safeway Stores Plc v National Appeal Panel
| Jurisdiction | Scotland |
| Judgment Date | 08 November 1996 |
| Docket Number | No 7,No 28 |
| Date | 08 November 1996 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION
Administrative LawJudicial reviewApplication for inclusion in pharmaceutical listNational appeal panel allowing appeal from decision of pharmacy practices committee of Health Board granting applicationReasons given by panelAdequacy of reasonsMaterial considerationsWhether further pharmacy necessary or desirableAppropriate testNational Health Service (General Medical and Pharmaceutical Services (Scotland) Regulations 1974, as amended, reg 28(4)1
The petitioners applied to a local health board to be included in the board's pharmaceutical list for the provision of pharmaceutical services. The application was dealt with by the board's pharmacy practices committee who granted the application. The case was thereafter appealed to the National Appeal Panel who allowed the appeal, having heard the petitioners, various objectors, the board and the community health council. The panel failed to give adequate reasons and the petition was continued by the Second Division and the case remitted to the panel to provide a proper and adequate statement of reasons for their decision in earlier proceedings [SeeSafeway Stores plc v. National Appeal PanelSC1996 SC 37]. The panel provided a statement of reasons, in para 3 of which they set forth that: In arriving at its decision the National Appeal Panel considered as material factorsthe neighbourhood in respect of which the application was made; the existing pharmaceutical provision in the neighbourhood or in relation to the neighbourhood; whether the existing provision was, in the panel's opinion and in the light of the evidence, such that it could be described as adequate. In para 8 they concluded that: A further pharmacy to serve the area was not necessary taking into account the current demand for and supply of pharmaceutical services, and the application was accordingly refused. The petition thereafter called before the Lord Ordinary who held that the petition was irrelevant and dismissed it. The petitioners reclaimed.
Held (1) that it was not implicit in the statement of reasons that the panel concluded that a further pharmacy was not desirable, which was an issue to which it ought to have directed its mind in terms of reg 28(4); (2) that, accordingly, the panel had not applied the appropriate test so that, as the statement of reasons did not say anything as to whether further pharmacy was desirable, the decision of the committee to the effect that an additional pharmacy was desirable had never been displaced, and that no good reason had been put forward by the panel for differing from the committee and for upholding the appeal against their decision; and reclaiming motion allowed.
Observed that although the absence of certain interested parties should not prevent the court from determining the issue between the parties, it would not be appropriate for the court to order the petitioners to be entered on the pharmaceutical list without giving the other interested parties an opportunity of being heard again by the panel, so that the cause ought to be remitted to the panel to proceed as accords and to re-hear the objectors' appeal against the decision of the committee.
Safeway Stores plc petitioned under the judicial review procedure seeking reduction of a decision taken by the National Appeal Panel allowing an appeal from a
decision of the Pharmacy Practices Committee of Lanarkshire Health Board, granting an application for the inclusion in the pharmaceutical list in respect of the petitioners' supermarket premises at Stewartfield, East KilbrideThe panel lodged answers in the petition and answers call before the Lord Ordinary (Johnstone) for a first reading.
At advising, on 8 February 1995, the Lord Ordinary refused the application [SeeSafeway Stores plc v. National Appeal Panel 1995 SLT 1083].
The petitioners reclaimed.
The cause called before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord McCluskey and Lord Morison for a hearing in the summar roll.
At advising, on 31 October 1995, the Second Division allowed the reclaiming motion, continued the case and remitted to the panel to provide a proper and adequate statement of reasons for their decision [SeeSafeway Stores plc v. National Appeal PanelSC 1996 SC 37].
The cause thereafter called before the Lord Ordinary who, at advising, held that the petition was irrelevant and accordingly dismissed it.
The petitioners reclaimed.
The cause called before the Second Division, comprising the Lord Justice-Clerk (Ross), Lord Morison and Lord Cowie for a hearing on the summar roll.
At advising, on 8 November 1996, the opinion of the court was delivered by the Lord Justice-Clerk (Ross).
Opinion ofthe CourtWe refer to the earlier opinion in this reclaiming motion dated 31 October 1995 [SeeSafeway Stores plc v. National Appeal PanelSC 1996 SC 37]. In that opinion, reference was made to the background to the petition, and the relevant regulations which governed the matter.
What the panel was dealing with was an appeal against the granting by the Pharmacy Practices Committee of an application by the petitioners to be placed upon Lanarkshire Health Board's pharmaceutical list. The reasons for the decision of the Pharmacy Practices Committee were stated in a letter dated 25 January 1994 addressed to the petitioners' solicitors to be as follows: I should advise you that the Pharmacy Practices Committee agreed to grant Safeway Stores plc's application because it considered that both the extent of the new Stewartfield Development and the changes to shopping patterns within the town demonstrated that an additional contract was desirable to secure adequate pharmaceutical services within the area.
The pharmaceutical list is dealt with in reg 28 of the National Health Service (General Medical and Pharmaceutical Services) (Scotland) Regulations 1974 as amended by the National Health Service (General Medical and Pharmaceutical Services) (Scotland) Amendment Regulations 1987. Regulation 28(4) provides as follows: (4) An application in any case other than one to which paragraph (3) applies shall be granted by the Board, after the procedures set out in Schedule 3A have been followed, only if it is satisfied that the provision of pharmaceutical services at the premises named in the application is necessary or desirable in order to secure adequate provision of pharmaceutical services in the neighbourhood in which the premises are located by persons whose names are included in the Pharmaceutical List.
It is clear from the terms of the letter of 25 January 1994 which we have already quoted, that in the present case the application was granted because the Pharmacy Practices Committee was satisfied that the provision of pharmaceutical services at the petitioners' premises was desirable in order to secure adequate pharmaceutical services within the area.
At the earlier hearing of this reclaiming motion, counsel for the petitioners maintained that the panel had failed to provide an adequate statement of their reasons, with the result that neither the petitioners nor the court could be aware what these reasons were. All that the panel had said was: Having taken into account all of the factors, including the demand for and the existing supply of pharmaceutical services in the area, the Appeal Panel has concluded that the granting of the contract is not justified at this time and accordingly the appeals have been upheld.
Since it appeared to the court that adequate reasons had not been given by the panel, the court remitted to the panel to provide a proper and adequate statement of the reasons for its decision, and in particular to state what material factors it considered in arriving at its decision, and what conclusions it reached on these material matters.
In obedience to that remit the panel has now provided a statement of reasons. In para 3 of that statement of reasons it is stated: In arriving at its decision the...
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