England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 10 OF THE PHARMACY ACT 1954

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd May 2005

Mr Justice NEWMAN :

1. This is an appeal pursuant to the provisions of section 10 of the Pharmacy Act 1954. A statutory committee of the Royal Pharmaceutical Society heard and determined allegations of professional misconduct against the appellants and, having found the allegations proved, imposed erasure. Although the appellants contested the allegation of misconduct before the committee, it is not now contended that they were not guilty of misconduct and the appeal relates solely to the penalty imposed.
2. The appellants were pharmacists operating a retail pharmacy owned by Chanins Pharmacy Limited, of which they were shareholders and directors. For several years prior to 2000 they had financial arrangements, including a loan for £850,000, with Unichem Limited (Unichem). From about 1997, the appellants began to experience significant difficulties. In June 2000, the appellants entered into an agreement with Unichem for refinancing. The relationship was unsuccessful in that the appellants eventually defaulted under the agreement and in April 2002 Unichem appointed administrative receivers ("the receivers") alleging that the terms of the refinancing agreement had been broken.
3. The appellants, who had received business advice for some time, from about 1995, from a Mr Brian Jones, took grave exception to this turn of events, appointing their own liquidator and resisting Unichem and the receivers at every turn. The receivers were forced to obtain an injunction against the appellants to allow access to the pharmacies in order to progress the receivership.
4. From April 2002 until the time when the Notices of Inquiry in the disciplinary proceedings were served upon the appellants, on 10^th July 2003, the appellants corresponded and otherwise communicated with board members and employees of Unichem (and its parent company, Alliance Unichem plc) in a manner which was characterised in the allegations made by the respondent as offensive, threatening and harassing. Unichem made a complaint to the respondent about this behaviour, which complaint gave rise to the proceedings
5. The statutory committee, chaired by Lord Fraser of Carmyllie QC and three other members, including two pharmacists, heard the allegations over a number of days and gave their decision on 21^st October 2004.
6. In the written reasons, the committee recognised that the appellants were aggrieved at the appointment of the receivers by Unichem but noted, as was correct, that the course of action taken by Unichem was one which they were entitled to take in accordance with the terms of the loan. Moreover, since the Chanins stopped the monthly trading payments due by direct debit it was, more or less, inevitable that the action would be taken. By the time of the hearing, despite having initiated matters by way of complaint to the Royal Pharmaceutical Society, Unichem had reached an agreement by way of settlement with the Chanins and had sought to have the Royal Pharmaceutical Society drop the complaint. The committee was entitled to, and did, consider this to be unacceptable conduct on the part of Unichem because the Royal Pharmaceutical Society has a statutory duty, in the public interest, to consider allegations which are capable of amounting to professional misconduct.
7. The nature of the case which the committee found proved can be taken from the Notice of Inquiry as follows:

"a. You sent offensive and threatening letters, postcards and faxes to the work and home addresses of board members and/or employees of Unichem Limited and/or Alliance Unichem plc. For example,

On 22^nd April 2002 you sent a letter to Mr Harris, Director of Alliance Unichem plc, which included the following:

It takes an ocean going liner (Unichem) five miles to stop and three miles to turn (time taken to make decisions). SAFE with one "Exocet" missile sinks the ship on the spot.

On 22 April 2002 you sent a letter to Mr Smith, non-executive director of Unichem Limited, and on 24 April 2002 you sent a letter to Mr Harris which included the following:

If the Viet Kong were any example to world peace, it was that if you take away someone's respect they will do anything to destroy the enemy.

…

We hope that the last paragraphs of this letter are not taken as a threat …

On 8 May 2002 you sent a letter to Mr Harris which included the following:

One of 15 new websites are up and running and we are sure you will find yourself displayed on some issue(s) in the future.

On 9 May 2002 you sent a faxed picture of the grim reaper to Mr Harris.

On 12 May 2002 you sent a postcard to Mr Smith's and Mrs Moss's home addresses bearing a picture of the grim reaper.

On 13 May 2002 you sent a fax to all the Directors of Alliance Unichem plc and/or Unichem Limited at their work address which included the following:

We said he was going and the Grim Reaper is now reviewing all the data.

…

TALK TO US – WE WILL NOT GO AWAY!!

On 14 June 2002 you sent a letter to all the Directors of Alliance Unichem plc and/or Unichem Limited at their work address which included the following:

… those who have everything have everything to lose .. you should now be aware that unless the matters in our affairs are settled amicably we will NOT be going away.

...

Every single new penny of loss counted will create one hour, one day or one year of searching out your company's failures, taking them to the highest mountain and portraying them to every individual who can see or hear what is said… Your head in the sand will be your dinosaur destruction.

On 16 June 2002 you sent a copy of a letter to Mr Tuohey, the Administrative Receiver for Chanins Pharmacy Limited, to Mr Harris and Mr Cooper, Director of Alliance Unichem plc and Deputy Chief Executive, at their work address which stated as to the proposed actions of the receivers:

YOU DO SO AT YOUR PERIL.

On or around 18 June 2002 you sent a letter to Mr Harris at his home address which included the following:

We are sure you must have enjoyed your legal conversations (by statutory deposition) with Rx.com attorneys this last week. Will the outcome be reported to your shareholders? Don't worry, we'll make sure it is.

…

If you think we're mucking about, Try Us!

P.S. Have you booked your flights to Texas for the November trial and are you taking your wife?

b. You made harassing and/or threatening telephone calls to the home and work places of the board members and/or employees of Unichem Limited and/or Alliance Unichem plc. For example,

On 23 May 2002 you left a telephone message for Mr Harris which included the following:

This needs to be sorted. We are not going away … This is not going away until it is settled.

On 16 May 2002 you left a telephone message for Mr Harris which included the following:

Please tell him that if I do not get an answer I will have to ring him at home.

c. You published the names, home addresses and home and work telephone numbers of board members and/or employees of Unichem Limited and Alliance Unichem plc on websites, including www.pharmology.tv.cnchost.com and www.pharmology.net. For example,

You published the names and home and work telephone numbers of Mr Harris, Mr Cooper and Mr Etherington.

You published the home addresses of Mr Goodenough, Company Secretary of Unichem Limited, and Miss Carpenter.

d. You published abusive, offensive and threatening material about and/or directed to board members and/or employees of Unichem Limited and/or Alliance Unichem plc on websites, including www.pharmology.tv.cnchost.com and www.pharmology.net. For example,

You published a picture of the grim reaper holding a "Uni con" logo and saying "I'll be visiting head office next week".

You published a picture of the grim reaper in front of Unichem's head office stating that he would "rip into this Board's secrets".

You published the following statement about Unichem:

And the Directors will either sort this out or be hung out to dry.

e. You instructed and/or permitted Mr Brian Jones to harass, threaten and/or pester board members and/or employees of Unichem Limited and/or Alliance Unichem plc and members of their families. For example,

Mr Jones telephoned Mr Harris' wife at their home and spoke to her.

Mr Jones telephoned Mr Cooper's wife at their home and spoke to her. She was distressed by the telephone call.

Mr Jones made the following statements to Mr Cooper and Goodenough in a telephone call on 21 June 2002:

You are and will be exposed for being who and what you are … you can make your own bloody choice about what is in there but I can tell you they are bloody deadly.

The purpose is to settle [Mr and Mrs Chanin's] situation ..

Too late … you're dead

When you have enemies you have enemies and you do not realise how close they are to you…

You make sure you sign an agreement to get [Mr and Mrs Chanin] out of this shit.

Mr Jones, accompanied by you, in a meeting with Mr Cooper and Mr Goodenough stated that he would distribute a CD that would damage Unichem.

f. You whether yourselves or by instructing others produced and/or distributed to board members and/or employees of Unichem Limited and/or Alliance Unichem plc a CD which purported to contain offensive and/or threatening material about and/or directed at members of the board and/or employees of Unichem Limited and/or Alliance Unichem plc but which was in fact blank.

6. You were made the subject of an injunction in the High Court of Justice, Queen's Bench Division on 18 July 2002 by Bell J which provides that until further order:

you and Mrs Chanin be restrained from:

Entering upon, occupying or taking possession of or otherwise seeking to interfere with the administrative receivers' possession of the premises at 14-167 Cross Lane, Bebbington, Wirral, Merseyside and 4, Fenderway, Greenfields, Birkenhead, Wirral, Merseyside ("the premises") and/or

Taking possession of or otherwise seeking to interfere with the administrative receivers' possession of property at the premises.

Interfering with or otherwise in any way in or in connection with the carrying on of any business or activity carried on by the administrative receivers at the premises save with their consent."

8. The committee concluded:

"It was not disputed that these were sent, but it appears at times but not consistently that it was disputed that the examples given were offensive and/or threatening. In our view, not only are all the examples threatening and offensive, but they were intended to be. It bordered on the ludicrous to assert, as was done before us, that a picture of the Grim Reaper was not to be regarded as a symbol or representation of death, and the postscript to the letter of 18 June 2002 to Mr Harris, I quote, "Have you booked your flight to Texas for the November trial and are you taking your wife?" was not intended as a social nicety. We find 5(a) in the Notice of Inquiry proved and the communications to be both offensive and threatening."

The committee did not find 5(b) proved, but did find the details in 5(c) and 5(d) proved and, under 5(d), stated that it would regard the material put on the website as abusive, offensive and threatening. In addition, the committee, having expressed their reasons in full, which it is unnecessary for the court to recite, concluded that the Chanins were also responsible for Mr Jones's conduct and found paragraph 5(e) proved. It was a matter of record that the Chanins were made subject to an injunction in the High Court.

9. The committee concluded that pharmacists were expected to conduct themselves:

"… generally in accordance with the standards of professional men and women and that failure to do so may reflect upon the reputation of the profession as a whole.

Mr and Mrs Chanin have singularly failed to conduct themselves in accordance with such standards and it is worthy of comment that even to the end of the hearing there appeared to be no insight or understanding of the extent of their departure from the professional standards required of pharmacists. That may in part follow from the baleful influence Mr Jones exercised over them which we were able to observe but the responsibility is theirs and we find that their departure from professional standards is such as to render them both unfit to be on the Register of Pharmaceutical Chemists".

10. Before considering the penalty, the committee accorded the Chanins an opportunity to make submissions in mitigation. The committee considered a number of references, including the evidence of someone who had worked for the Chanins. Having adjourned to consider the matter, they returned and stated their decision as follows:

"We have noted very carefully what Mrs Chanin has said in her final submission to us, and have reread the transcript of her submissions, together with the evidence adduced on their behalf and the references provided to us, but there appears to us to be such a remarkable lack of insight into how far they have departed from professional standards that we consider we have no option but to give the direction to remove their names from the Register, which we now do."

11. The reference to the record and to the final submissions is particularly relevant to a point urged by Mr Higginson on this appeal. Mrs Chanin stated as follows:

"Both Mr Chanin and I would like to place before this committee our unreserved apologies to both Unichem and the Society for any misunderstandings or concerns they may have had in these matters. It is regretful that we found ourselves having to exercise such action and language. We ask this committee to accept our apologies, reflect upon the substantial character witness we have provided and our detailed explanation of the unusual commercial circumstances we found ourselves in. Since that short period of events we have continued to act as Pharmacists and still represent the Society in the Wirral. Mr Chanin provides computer expertise with his computer skills to the local Society website and Mrs Chanin is the programme secretary. Our value to Pharmacy and its future must outweigh this unfortunate incident. We ask the Society to accept our submission that this is one isolated incident we are not seeking to repeat."

The Pharmacy Act 1954

12. The terms of section 8 of the Pharmacy Act 1954 require the statutory committee to reach an "opinion" as to whether a person is "unfit to have his name on the Register". If they so conclude they may decide that his name should be removed from the Register. By section 8(2) the committee has the power to restore the name of a pharmacist who has been removed from the Register at any time, upon his application or of its own motion, in their discretion. They also have the power to direct that no application for restoration should be made for a specified period of time (section 8(1)(iii)). In this case, the committee did not make such a declaration.

The Grounds of Appeal

13. The grounds of appeal run to some twenty-three paragraphs. As to the allegations which were found to have been proved, the essence of the submission is that the committee exaggerated the seriousness of these allegations and should have concluded they were relatively insubstantial. So far as Mr Brian Jones is concerned, the complaint is that the committee failed to distance the appellants from the role performed by Mr Jones and from responsibility for much of what occurred which, it was said, should properly have been seen as the responsibility of Mr Jones alone. In the context of the mitigation which was available, the grounds contend that insufficient weight was paid to the nature of the conduct which, on a proper view, should have been regarded as extraneous to the fulfilment of the appellants' professional responsibility as pharmacists. Having regard to the exemplary character of the appellants and the material by way of references and so forth, it is submitted that the penalty was excessive. A discrete issue is raised as to the role played by Mr Jones acting as the "advocate" or Mackenzie friend for the appellants in the proceedings before the committee. The record shows that the chairman had to reprimand Mr Jones in an endeavour to control his conduct. It is plain that the chairman and the committee disapproved of the manner in which he conducted himself and the case. It has been submitted that, in such circumstances, the appellants should have been warned of the peril at which they were putting themselves by being represented by Mr Jones and that the failure to warn them amounts to a breach of their Article 6 or Article 10 rights under the European Convention of Human Rights.
14. At the commencement of the hearing of the appeal Mr Higginson submitted that, since the appeal was by way of a re-hearing under section 10(2) of the Pharmacy Act 1954, statements which had not been before the committee but which had been prepared by the Chanins for the purpose of the appeal should be admitted in evidence to the court. Although minded, at first, to submit that it was open to the appellants on an appeal such as this to submit any fresh evidence that they wished before the court, without making a formal application and without meeting the conventional principles governing fresh evidence on an appeal, the court understood Mr Higginson ultimately accepted that, in effect, unless he could bring himself within the Ladd v Marshall principles, there was no right to adduce fresh evidence on a statutory appeal such as this. The court understands that Mr Higginson does not agree that he made any such concession. Whether he did or not the court is satisfied that his application fell to be considered by reference to Ladd v Marshall principles. In an endeavour to form a view as to the breadth of the evidence contained in the statements, the court perused them and has now considered them at length. Taken together, the two statements extend to some seventy-two pages. They draw together an immense amount of detail but, more than that, Mr Chanin's statement takes each of the allegations in the Notice of Inquiry and sets out, in respect of each, a response. The statement of Mr Chanin is, in many respects, completely outside the ambit of the appeal, since it is not confined to matters of sentence, but seeks to raise points calculated to persuade the court that the findings of misconduct should not have been made. I shall take some examples. Under paragraph 5, he states:

"… I could be accused of being persistent, relentless and unyielding in my efforts to engage those parties to investigate and debate the problem, but no more."

Of 5(a)(1), whilst admitting writing communications, he maintains that they were dictated by Mr Jones and asserts: "for example, I did not read the contents of this letter closely let alone debate them with him". A little later on: "On my own I could never have thought of letters of such a nature. The language it was expressed in was alien to me, so strange that at the time it went right above my head." Other examples of an attempt to place the blame upon Mr Jones to absolve himself of any responsibility which could account for misconduct can be found in his responses to the other allegations.

15. I have no doubt that the statement of Mr Chanin goes well beyond what is admissible on this appeal, which is an appeal against "sentence". As for Mrs Chanin's statement, it, too, in dealing with the allegations, seeks to raise points which would be relevant had there been an appeal against the findings of misconduct as opposed to an appeal which is limited to "sentence". As I indicated to Mr Higginson at the close of argument, it would be appropriate for me to pay regard to those parts of the two statements which do no more than re-assert, in the words of the Chanins, the points which are relevant on this appeal against the penalty, but they are not properly before the court for any other reason. I have taken account of them only so far as they are admissible on the appeal.

Argument on the Appeal

16. Mr Higginson submitted that it could be seen from the record that an exaggerated view of the seriousness of the allegations had been formed by the committee because of the irritation and annoyance which Mr Jones had created in the course of the proceedings. I have no hesitation in rejecting this submission. Having considered the transcript and the conduct of Mr Jones, it seems to me that the chairman and the members of the committee conducted themselves in a proper, restrained but firm manner when dealing with excesses of conduct on the part of Mr Jones. That said, I am entirely satisfied that, in any event, there is no basis for concluding that the committee's disapproval of the conduct of Mr Jones at the proceedings in any way affected the penalty which it imposed.
17. The code of ethics which guides the behaviour and standard of conduct for registered pharmacists, "Medicines, Ethics & Practice: A Guide for Pharmacists" provides, inter alia, as follows:

"Part 1: Pharmacists' Ethics

The public places great trust in the knowledge, skills and professional judgment of pharmacists. This trust requires pharmacists to ensure and maintain, throughout their career, high standards of personal and professional conduct and performance …

Ethics has been described as the systematic study of moral choices; it concerns the values that lie behind them, the reasons people give for them and the language used to describe them. Ethical decision-making is the process whereby one recognises that a problem needs to be overcome or a difficult choice made, identifies the possible courses of action, chooses one, takes it and then accepts responsibility."

18. Disreputable behaviour or breach of a professional responsibility or requirement identified in the Code of Ethics can form the basis of a complaint of professional misconduct.

"Pharmacists must ensure that they behave with integrity and probity, adhere to accepted standards of personal and professional conduct and do not engage in any behaviour or activity likely to bring the profession into disrepute or undermine public confidence in the profession."

19. Like the committee, this court is wholly unimpressed with the suggestion that these communications did not amount to abusive and threatening conduct of a serious nature. They were also highly offensive. On the appellants' own case they were used in order to achieve a result, namely to force Unichem to talk to them, which it is asserted they had been unable to achieve by conventional means. The attempt to justify such extreme conduct on the basis of frustration with Unichem is to ignore the right of Unichem to conduct their affairs as they see fit, with whatever legal consequences that might bring upon Unichem. The appellants' failure to conduct their dispute paying proper regard to the rights of Unichem, its officers and employees comprised a core element in the allegations of misconduct. The appellants' case fails to recognise that simply because you may be thwarted in commercial affairs, a professional person cannot resort to conduct such as this without the risk of a professional sanction being imposed. An isolated occurrence of intemperate behaviour, either by telephone or by letter, would be one thing, but the appellants, using Mr Jones as their adviser and creative enforcer, engaged in a sustained course of conduct, which was designed to draw attention to their position by publishing offensive material, including threatening content. Like the committee, this court finds the absence of any insight into the offensiveness and the threatening nature of the material to constitute an aggravating feature of the case against them. The statements which have been submitted do not demonstrate that there is yet any insight into the position.
20. There is no evidence that the actions which were taken by Mr Jones were ever censured or questioned. The contrary appears to be the case; they were supported, adopted and defended before the committee as the committee itself noted. The committee was entitled to conclude that the appellants were responsible for the actions taken on their behalf by Mr Jones.

Conclusions

21. I am entirely satisfied that there is no substance in the submission that the committee exaggerated these allegations. The nature of the imagery included the "grim reaper" which is a clear symbol of death. The language included references to Exocet missiles, the VietCong and other aggressive, warlike or death-orientated material. Many of the letters were sent on the appellants' writing paper having their professional qualifications on the paper and being signed by them. The website, which was set up by Mr Chanin, was composed in a form that mimicked Unichem's own website, Unichem's own logo was bastardised for the mock up website; private telephone numbers and mocking references to the directors were all posted where they were publicly available.
22. I am unimpressed with the contention that the conduct in question was extraneous or extra-professional. The conduct had given rise to a complaint by Unichem going to the manner in which the appellants conducted themselves as pharmacists. It is plain that the complaint went to their conduct, not as pharmacists in the dispensing of drugs, but as pharmacists in the conduct of their business as pharmacists. The conduct was wholly unprofessional. It was wholly self-centred, intemperate, inconsiderate, offensive and threatening. It was, in my judgment, within the power of the conduct committee to regard the regulation of its members, in the conduct of their business, as requiring proper professional standards to be met and that members of the public dealing with them should not be subjected to such conduct. The fact that Unichem had reached a commercial settlement, which was no doubt in its own best interests, was neither here nor there to the duty which the committee had to discharge.
23. The committee dealt expressly and clearly with the mitigation which had been tendered and with the option of erasure from the Register. The previous standing of the appellants and their previous good character or community support was relevant, but could not serve to reduce the gravity of the misconduct. Although "good character" is relevant to mitigation, where conduct plainly justifies erasure, the duty to protect the reputation of the profession is of prime importance and, in such a case, personal mitigation is likely to have limited impact so far as penalty is concerned. The apology upon which Mr Higginson has relied, in my judgment, was correctly labelled by Miss Foster QC, who appeared for the Society, as more in the nature of an apologia and, for that reason, was not capable of carrying much weight.
24. At one point in the course of the hearing the following exchange occurred between Mr Chanin and a committee member:

"Q. When we first started today … Mr Smith came from Unichem and … spoke … very approving terms of your contribution to the profession and how committed you were to it. That behaviour is so totally at odds with what we see written out, your behaviour in 2002, … But even two years on you cannot see that this is intemperate, unpleasant, appalling I would say..

Q. Well …

…

Q: Mr Jones seems to have caused you a lot of grief along the way.

A. I disagree with you. Mr Jones has been extremely helpful to us.

Q. Threatening intimidating behaviour from Mr Jones, causing enormous additional costs, Mr Harris's wife receiving a phone call from him, extremely influential over you.

A. That is their opinions

…

Q. Yet you do not seem to have the insight to see that what you have been accused of was dreadful.

A. Which feel that it was justified in the circumstances; we were not threatening.

Q. 3 years on can you not see how a normal person …

A. I am beginning to see how you are viewing it, yes.

Q. That is not the answer.

A. No, I cannot see that…"

25. Finally, so far as proportionality is concerned, it can be said that it is not apparent from the decision that consideration was given to lesser penalties and no reasons appear for such lesser penalties not being appropriate. In my judgment, it is perfectly plain from the overall content of the decision and, in particular, the absence of insight and lack of judgment demonstrated to the committee, that the committee could have no confidence that, in the event that the appellants were again thwarted in their business, they would not embark upon conduct of a similar nature. The import of their submissions was that they were justified in doing what they had done because they had been treated so appallingly by Unichem. In my judgment no other penalty would have been appropriate.
-----------------------------------------------

MISS FOSTER: My Lord, I ask for my costs of this appeal and I wonder if your Lordship would be prepared to assess those costs. There are two statements. Perhaps if I could talk to you about costs, as it were, before showing you my statement of costs and if your Lordship is prepared to assess it summarily in the sum that we have asked I would be very grateful. My friend was served with a copy of this at the time of the proceedings. If your Lordship wishes a comparator his schedule is to hand also.

MR JUSTICE NEWMAN: I think it is always helpful if I have them both.

MR HIGGINSON: Before your Lordship embarks upon this exercise may I make my position this morning clear?

MR JUSTICE NEWMAN: Yes, of course.

MR HIGGINSON: Plainly in the light of the court's judgment I cannot say anything about the order for costs proposed, but before your Lordship embarks upon a review of the schedules it would be my submission that in the light of the history of this case procedurally it would be sensible for it to be the subject of a detailed assessment. There are a number of stages that have been gone through in order to arrive where we are today.

MR JUSTICE NEWMAN: Yes.

MR HIGGINSON: I myself would not be happy, with respect, to see the court embark upon a summary process in those circumstances.

MR JUSTICE NEWMAN: It qualifies for a summary assessment, does it, in accordance with the rules? It was a one-day case and therefore -- I mean we are urged, Mr Higginson, so far as possible to avoid battles over costs which only incur more costs. I have not yet looked at the figures, but I do not know how much we are even likely to be concerned about as being in issue. Have you got an idea?

MR HIGGINSON: It would be a very substantial sum. I have not been given any up-to-date schedule. There ought to be one to include today. Nothing has been served to include today.

MR JUSTICE NEWMAN: What is the difference between your two schedules for example?

MR HIGGINSON: I do not know at the moment because I do not know what Miss Foster's going to unleash on the court now.

MR JUSTICE NEWMAN: What is the difference as it stands for the moment on the two schedules I have in front of me?

MR HIGGINSON: My learned friend will indicate what her current position is and what her last schedule --

MISS FOSTER: The difference is £5,000. My learned friend's is £5,000 more than ours and I am embarrassed to inform you it is the value that his solicitors has put upon him that has increased his amount.

MR JUSTICE NEWMAN: I see.

MISS FOSTER: Other than that they reasonably commensurate - ours is I think £23,000 and theirs is £28,000, which as I say the difference is in that respect.

MR JUSTICE NEWMAN: Yes. Thank you. Enlighten me, Mr Higginson. You are suggesting their figure is so high that it needs an assessment to have it brought down. Is that it?

MR HIGGINSON: My Lord, yes. I am saying all of the figures are sufficiently high for it to be right that a detailed assessment should be conducted. It is not simply that it is a one day case; it is the stature of the case leading up to that. The disparity of course between our schedule and the other side's schedule is simply explained: it is that there was a new legal team in this case which started after the last hearing, but there was none of that in the case of the Society. That is simply explained. But that is a side question to the central question. The central question is whether or not these figures and the material that they cover are of sufficient seriousness and size to merit a rather closer look than in my submission they are.

MR JUSTICE NEWMAN: Yes, all right.

MR HIGGINSON: I still have not got a schedule taking the position up-to-date today.

MR JUSTICE NEWMAN: I do not suppose today is going to add very much.

MISS FOSTER: I do not think it will add anything.

MR JUSTICE NEWMAN: Are you charging more for today?

MISS FOSTER: We are happy to keep our figure.

MR JUSTICE NEWMAN: They are not charging anything for today. Mr Higginson, what is your response to that?

MR HIGGINSON: Let me take instructions. (Pause) My Lord, I have taken instructions. In the light of the recently stated position my clients are happy that summary assessment is conducted today.

MR JUSTICE NEWMAN: Good. What submissions do you want to make, if any, on the £24,000, rounding it up, which is on the----

MR HIGGINSON: I had expected a later schedule which I did not get. I wonder if I could have a copy of whatever is now being looked at.

MISS FOSTER: This is just the earlier one that was served.

MR HIGGINSON: I am sure it is but I did not know that that was what was going to be relied on again today. Whilst that is being obtained, it is principally a question of principle. The principle I have already enunciated. It is not to do with the quantum of individual items, individual sections of the bill that has been put in, it is the underlying principle and the underlying principle is that disparity of which my learned friend speaks is in fact --

MR JUSTICE NEWMAN: Let us assume that your disparity, which is £5,000, is explained on your part, on your side, by the fact that there have been a change of legal representation and therefore there had been double-counting. What are the particular amounts that you say I should be pruning in the schedule which the respondents have given you? If you have not got anything you want to say, Mr Higginson, you do not have to say it.

MR HIGGINSON: I am not going to invent things, no. It is not a question really of pruning individual items, my Lord, and it is not a question merely of a reduction on account of the principle which I have outlined. It goes further than that. There should be a further reduction beyond that. It is not simply a change of legal team, as your Lordship will recollect in this case, it is the imposition of a completely new legal team. So the whole legal team started from scratch after the decision in the hearing.

MR JUSTICE NEWMAN: I am not so much concerned with your difficulties and your legal team because what is at issue is not so much your summary, and I understand your summary I should not take as a touchstone for what is fair. Okay, let us assume that to be the position. What I want to know though is why you say the £24,000 which is sought by the Royal Pharmaceutical Society of Great Britain is not fair or should be reduced.

MR HIGGINSON: My Lord, I know your Lordship wants to divorce the particular inspection from the principle, but it is in my submission not right to do so.

MR JUSTICE NEWMAN: You do it whichever way you think you can persuade me to reduce the bill of £24,000. You say it, Mr Higginson, and I will listen.

MR HIGGINSON: I am going to try.

MR JUSTICE NEWMAN: You have a go.

MR HIGGINSON: It is a point of principle. The fact that as some sort of a touchstone our bill is at £28,000 is very substantially explained, as I say, by the imposition of a completely new legal team as opposed to the existent legal team for the Society, merely taking precisely the same case one stage further.

MR JUSTICE NEWMAN: Yes.

MR HIGGINSON: So the disparity is very considerably greater than as indicated in the schedule that your Lordship is now looking at and it is a point of principle. As to individual items, I do not seek to attack any of those, that is not the approach that I would urge nor in my submission is it the correct approach. It is simply that as a comparator, when one takes account of that crucial factor, overall the Society's bill should be very substantially lower because, as I say, it had done most of the work in the earlier hearing. It was taking it on merely one more appellate stage. It involved references to several more authorities but otherwise it was simply that extra stage. So I do not attack individual items. It is rather a criticism over-arching as a point of principle. That is my submission.

MR JUSTICE NEWMAN: Thank you. Miss Foster, do you want to say anything?

MISS FOSTER: Very shortly. This was the first time that the case had been argued by a legally trained representative. All the points therefore taken were essentially new but there were factual assertions as well. So if you were to look at our statements of costs, the largest elements of them are counsel's fee which you will see there, which embarrassing as it is in these circumstances I would invite you to find it reasonable, there is one conference with counsel you will see on the first page, and there is work done on documents you see at partner level. In considering the number of documents that were here in issue, I think it was three Lever Arch files we had, it is, I would say, an economical assessment that you have. Those really are the only sums that top £1,000, in fact the conference does not, and there is attendance at the hearing which does. Aside from that and some of the attendance figures there is very little here of substance at all, my Lord. Every point was taken, there was a large volume of documents. That really is the sum of the case.

MR JUSTICE NEWMAN: Thank you very much indeed.

Having considered the two schedules and taking account of the fact that Mr Higginson does submit that their schedule being higher reflects the excesses of costs that have had to be incurred because of changes of team and therefore should not be taken as a benchmark for the position and having looked at the schedule for the Society, it seems to me that fairness does require only that the schedule for the Society should be reduced by £2,500. That I do particularly by reference to what one can see there as the accumulation of counsel's fees, but nevertheless nobody should take that as an indication that I have not been deeply indebted to both counsel for their submissions. Thank you very much.

Mr Higginson, I took account of your editorial comment.

MR HIGGINSON: Your Lordship did.

MR JUSTICE NEWMAN: And so I did not commit you to a concession that you did not feel you had made, but I felt you had. But it does not really matter.

MR HIGGINSON: Your Lordship is most kind.

MR JUSTICE NEWMAN: Thank you.