QUEEN'S BENCH DIVISION
B e f o r e :
(sitting as a deputy judge of the High Court)
|THE QUEEN ON THE APPLICATION OF BOOTS THE CHEMIST||Claimant|
|THE FAMILY HEALTH SERVICES APPEAL AUTHORITY||Defendant|
|LLOYDS PHARMACY LIMITED||Interested Party|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR C SHELDON (instructed by Messrs Beachcroft Wansbroughs, Leeds LS1 2LW) appeared on behalf of the Defendant
MR IAN ROGERS (instructed by Messrs Charles Russell, London EC4A 1RS) appeared on behalf of the Interested Party
Crown Copyright ©
"An application ... shall be granted by the health authority or the Primary Care Trust only if it is satisfied that it is necessary or desirable to grant the application in order to secure, in the neighbourhood in which the premises from which the applicant intends to provide the services are located, the adequate provision, by persons included in the list, of the services, or some of the services, specified in the application."
"Where several applications are received for the same or similar locations or where there is a substantial measure of overlap in the population which would be served by the several applications, the applications should be considered in the order in which they are received only if there are no other deciding factors. Care should be taken that procedures do not encourage 'blocking' applications. The range of services offered should be considered and, for example, if it is clear that one applicant is in possession or control of the relevant premises or likely to gain such control, approval should not normally be granted to one of the other applicants simply because his application was received at an earlier time."
"... financially more competitive and will significantly assist the financial viability of the project. We can also confirm our formal acceptance of your offer and re-affirm our wish to proceed with your Company subject to legal agreements and, of course, PCT approval.
Regarding the legal aspects of the new development we can confirm that we will be instructing our solicitors to produce the necessary 'Agreement to Lease' and Lease and will now forward these to your company's solicitors, Messrs Shoosmiths.
We trust this letter is sufficient for your requirements and wish you every success at the appeal hearing."
There was an intervening paragraph dealing with services which they were not competent to comment on.
"... Lloyds Pharmacy had been having discussions with the developers, Matrix Medical, but that these were in the early stages. Lloyds have also dealt with Matrix Medical in the past."
He goes on to deal with services that will be provided, and I do not think anything else that affects the point.
"We appeal on the grounds that the first application is only applicable if the applications are the same. In this instance they are not as Boots the Chemist will have control of [the] premises and Lloyds will not."
That contention was the essential issue in the appeal.
"... I shall obtain the appropriate information from the Primary Care Trust to enable your appeal to be circulated in accordance with the Regulations; after which I will contact you again. This assumes, of course, that your appeal is not summarily dismissed.
You will be aware that an oral hearing may be needed before an appeal is determined. In considering whether to hold a hearing, the Pharmacy Committee will take into account any request received."
A second letter was submitted on the same day, but I do not think that adds to the picture.
"The Authority is now circulating a copy of your appeal in accordance with Regulation 8 of the NHS (Pharmaceutical Services) Regulations 1992. If you have any further comments or evidence in support of your appeal, these should be submitted to the Authority within 30 days of the date of this letter, (i.e. by 1st April 2004). You may wish to comment on why you believe your application should be granted over that of Lloyds Pharmacy."
"You do request that we make comments as to why we believe our application should be granted over that of Lloyds Pharmacy's application and this is purely down to the fact that Boots the Chemists are finalising the Agreement for Lease and [the new Lease] with the developers for the pharmacy unit at the proposed Health Centre and therefore will have control of premises."
"In reality, therefore, we do not believe that Boots are any closer to securing the property that is the subject of these applications than Lloyds Pharmacy are. Although Matrix Medical state that they have formally accepted Boots' offer this is subject to approval by the relevant body (now the Appeal Authority) of their relocation application. If the Appeal Authority uphold the PCT's decision then Matrix Medical will deal with Lloyds Pharmacy. In this respect we contend that negotiations by either contractor have not reached a position whereby one applicant has secured a confirmed position over the other."
"The Committee noted that the only reason advanced for preferring the second applicant was in relation to the control of the proposed premises. Boots The Chemists stated that it has been finalising lease arrangements, and the Committee carefully considered the letter sent to Boots The Chemists by Matrix Medical. However, the Committee was of the view that any agreement disclosed in that letter for Boots the Chemists to obtain control of the premises was on the condition that Boots the Chemists is granted the necessary permission from the PCT (a responsibility now transferred to the Appeal Authority in this case). However, the Committee did not feel that this agreement in itself is evidence that Boots the Chemists has reached a position whereby it has secured a confirmed position over Lloyds Pharmacy."
They therefore dismissed the appeal.
"We can accordingly confirm that the contents of our previous letter still apply and that Boots retain contractual control of the premises."
In fact, as is obvious, that letter does not do much more than to say that the status quo as in September remains in place.
"It would have added greater weight to the Claimant's application but I do not believe that it would have ensured their success."
He goes on to explain why.
"... the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
Those were propositions 3 and 4 cited at paragraph 66 of the E case.