QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
Manchester Civil Justice Centre
1 Bridge Street West
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
| THE QUEEN ON THE APPLICATION OF PHARMACY CARE PLUS LIMITED
|- and -
FAMILY HEALTH SERVICES APPEALS UNIT
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
The Defendant did not attend and was not represented.
Crown Copyright ©
"(a) a person on a pharmaceutical list (which may or may not be the applicant) is providing or has undertaken to provide pharmaceutical services ("the existing services") from:
(i) the premises to which the application relates, or
(ii) adjacent premises; and
(b) the Primary Care Trust is satisfied that it is reasonable to treat the services that the applicant proposes to provide as part of the same service as the existing services (and so the premises to which the application relates and the existing listed premises should be considered as one site)."
"The Committee was not provided with any information as to why it would be reasonable to treat services provided by Medsdirect 2U Ltd as part of the same services as those provided by King Cross Pharmacy (for the purposes of Regulation 17A(b)) as the applicant and King Cross Pharmacy are two separate chemists (although it is uncertain as to whether some or all of the directors of one are also directors of the other, however there appears to be no commercial connection)."
"Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are [as follows]. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning"
JUDGE DAVIES: Yes. So, Mr Fraser Campbell, the order you invite me to make is...?
MR FRASER CAMPBELL: That the decision is quashed, my Lord, with costs reserved.
JUDGE DAVIES: I will make this order:
"Upon hearing counsel for the claimant and upon there being no attendance by the defendant or any of the interested parties, it is ordered:
(1) The decision of the defendant made on 25 June 2012 is quashed.
(2) The question of costs is reserved to be dealt with as follows …"
Mr Fraser Campbell, what do you invite me to do in relation to costs? I would have thought, unless you have any contrary suggestions, that I should require the defendant to file and serve submissions in relation to costs within a specified period, for you to have the right to reply within a specified period, and for me then to determine all questions of costs on paper?
MR FRASER CAMPBELL: Yes, my Lord, I think that would be the best way.
JUDGE DAVIES: Your solicitor sent to the court yesterday a schedule of costs.
MR FRASER CAMPBELL: Yes, my Lord.
JUDGE DAVIES: Has that also been served on the defendant?
MR FRASER CAMPBELL: Yes, my Lord, it has been served.
JUDGE DAVIES: So, as far as you are concerned, there is no need for you to serve anything more on the defendant?
MR FRASER CAMPBELL: No, indeed, my Lord. My position is that the natural order would be for our costs and it is now for the defendant, if it wishes to, to make representations as to why some different order should be made.
JUDGE DAVIES: Yes. Good, so I shall say, as I have said:
"(2) The question of costs is reserved to be dealt with as follows:
(i) The defendant shall if so advised file and serve any written submissions and or evidence on the question as to whether or not it should be ordered to pay the claimant's costs of the claim, and on the amount claimed under the costs schedule already served upon it by the claimant, by 4.00 pm on Friday, 15th March.
(ii) The claimant shall, if so advised, file and serve any reply by 4.00 pm on --"
Do you want 14 days? 14 days will take us up to Good Friday, but do you want to try and get it served before then or do you want it after?
MR FRASER CAMPBELL: I would think seven days would be enough for us.
JUDGE DAVIES: So if I say 25 March, which gives you over the weekend as well.
"(ii) The claimant shall, if so advised, file and serve any reply by 4.00 pm on Monday, 25th March 2013.
(iii) The court shall determine all questions of costs thereafter on paper."
MR FRASER CAMPBELL: I am grateful, my Lord.
JUDGE DAVIES: Good. Would you be prepared to volunteer, Mr Fraser Campbell, to draw up that order and to file it at court in the normal way?
MR FRASER CAMPBELL: Yes.
JUDGE DAVIES: Thank you very much, that is very kind. Well, I think that is everything, is it not?
MR FRASER CAMPBELL: My Lord, I wonder if I could possibly have your note just so I can check the wording of the order accords.
JUDGE DAVIES: Of course. Do you want me to read the whole thing out again?
MR FRASER CAMPBELL: Or if you would be prepared to give it to me.
JUDGE DAVIES: Unfortunately, my note would be illegible to anyone else.
MR FRASER CAMPBELL: That is fine.
JUDGE DAVIES: I will read it out again.
MR FRASER CAMPBELL: It is fine; I think my solicitor has taken a better note than I have.
JUDGE DAVIES: Certainly. In the normal way, when you produce the minute, send it by email to the court office and ask them to send it through to me for me to approve and then I can check it against my own, illegible to anyone else, note and I can declare it as accurate.
MR FRASER CAMPBELL: Fine.
JUDGE DAVIES: Good. Thank you very much for your helpful submissions and thank you very much to your solicitors for the very well prepared bundle.