OUTER HOUSE, COURT OF SESSION [2007] CSOH 125 |
|
P550/07 |
OPINION OF LORD GLENNIE in the petition of UNITED CO-OPERATIVE LIMITED Petitioners; for Judicial Review of the National Appeal Panel for the Entry to the Pharmaceutical Lists &c Respondents: ________________ |
Petitioners: Lindsay;
First Respondents:
Third Respondents: Wallace; Wright, Johnston & Mackenzie LLP
Introduction
[2] In this petition for judicial review, the petitioners seek reduction of that decision. The grounds set out in the petition are: (a) that the decision was Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223); and (b) that the Panel failed to give adequate and comprehensible reasons for its decision (Wordie Property Company v Secretary of State for Scotland 1984 SLT 345). In presenting the case for the petitioners, Mr Lindsay made it clear that he would not be relying upon Wednesbury unreasonableness but would be limiting his submissions to the complaint that the Panel had failed to give adequate reasons. As a result, subject to one point which arose towards the end of argument, the hearing was limited to a consideration of the adequacy of the reasons given by the Panel.
The relevant legislation
[4] Regulation 5(1) of the National Health Service (Pharmaceutical Services) (Scotland) Regulations 1995 ("the Regulations") requires the Health Board (or, in some cases, a Primary Care NHS Trust) to prepare a list, called "the Pharmaceutical List", of the names of persons other than doctors and dentists who undertake to provide pharmaceutical services, and of the addresses of the premises within the Board's area from which these persons undertake to provide such services. The list also states what services are to be provided and the days and hours during which the premises are open. Regulation 5(2) provides that a person ("the applicant") who wishes to be included in the Pharmaceutical List for the provision of pharmaceutical services shall apply to the Board. In certain circumstances set out in Regulation 5(3) and 5(4), the Board is required to grant the application. Regulation 5(10) deals with the situation when the application does not fall within those paragraphs. It provides as follows:
"(10) An application made in any case other than one to which paragraphs (3) or (4) applies shall be granted by the Board ... 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."
If the application is granted, the Board is required to make the relevant entries in the Pharmaceutical List after the expiry of the period for intimating an appeal against the decision to grant the application, or the conclusion of all appeal procedures: see Regulation 5(14).
[5] Regulation 5(10) was the subject of detailed consideration by the Inner House in Lloyds Pharmacy Limited v National Appeal Panel 2004 SC 703. It held that, in applying the test in Regulation 5(10), the decision-maker had to approach an application in two stages: first it had to consider whether the existing provision of pharmaceutical services in the relevant neighbourhood was adequate; and second, if the existing provision was inadequate, it had to consider whether the provision of pharmaceutical services at the premises named in the application was necessary or desirable in order to secure adequate provision. The opinion of the court was given by Lord Drummond Young. I set out in full paragraphs [8] - [11] of that opinion:
"[8] The statutory test that must be satisfied if Lloyds' application to relocate is to be granted is that set out in regulation 5(10) of the 1995 Regulations. Regulation 5(10) provides that an application to relocate, other than a minor relocation, shall be granted 'only if [the decision-maker] 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'. In applying that test, the first step that the decision-maker must take is clearly to identify the relevant neighbourhood; that was not in dispute. Thereafter, in our opinion, the decision-maker must approach an application in two stages. First, it must consider whether the existing provision of pharmaceutical services in the relevant neighbourhood is adequate. If it decides that such provision is adequate, that is the end of the matter and the application must fail. If it decides that such provision is not adequate, it must go on to consider a second question: whether the provision of pharmaceutical services at the premises named in the application is 'necessary or desirable' in order to secure adequate provision. We consider that such a two-stage approach is inherent in the logical structure of regulation 5(10). The fundamental criterion against which the application is to be judged is the adequacy of pharmaceutical services in the relevant neighbourhood. A deficiency in those services must exist before an application can be granted. Consequently the existence of such a deficiency must be identified before it is necessary to consider what may be done to provide a remedy. The second question relates to the manner in which an identified deficiency is remedied.
[9] In relation to the first question, we are of opinion that 'adequacy' is a simple concept, in the sense that there is no room for different degrees of adequacy, or a spectrum of adequacy. Either the pharmaceutical services available in a neighbourhood are adequate or they are not. That seems to us to be inherent in the ordinary meaning of the word, which denotes a sufficiency for a particular purpose, in this case the provision of pharmaceutical services in the relevant neighbourhood. The standard of adequacy is a matter for the decision-maker, whether that is the Pharmacy Practice Committee or the National Appeal Panel. In either case, the decision-maker is a specialist tribunal, and can be expected to apply its knowledge of the pharmaceutical business to the task of determining the appropriate standard.
[10] The question that the decision-maker must address is the adequacy of the existing provision to serve the neighbourhood in question. In addressing that question, however, it is in our opinion proper to have regard to probable future developments, for two reasons. First, the standard of adequacy in a particular neighbourhood will obviously change with time. The relevant neighbourhood may change, for example through the construction of new housing developments or the movement of population out of inner-city areas. Likewise, changes inevitably occur in pharmaceutical practice, and the standard of 'adequate' pharmaceutical provision must accordingly develop over time. The proposal under consideration may well provide an illustration of how pharmaceutical practice is developing, and may be relevant to show what sort of provision is possible in the neighbourhood. We are in full agreement with the Lord Ordinary that changes in pharmaceutical practice should be taken into account by the decision-maker. Secondly, regulation 5(10) uses the word 'secure' in relation to the adequate provision of pharmaceutical services. That word seems to us to indicate that the decision-maker can look to more than merely achieving a bare present adequacy of pharmaceutical provision. 'Secure' suggests that it should be possible to maintain a state of adequacy of provision into the future. That indicates that the decision-maker must have some regard to future developments, in order to ensure that an adequate provision can be maintained. The decision-maker must, however, determine the adequacy of the existing provision of pharmaceutical services at a specific time, the time of its decision. It must accordingly reach its conclusion on the adequacy of the existing provision on the basis of what is known at that time, together with future developments that can be considered probable rather than speculative. The decision-maker must also bear in mind that the critical question at this stage of its reasoning is the adequacy of the existing provision, not the adequacy or desirability of some other possible configuration of pharmaceutical services in the neighbourhood.
[11] If the decision-maker determines that the existing provision of pharmaceutical services in the relevant neighbourhood is inadequate to meet the needs of that neighbourhood, it must go on to consider the question of how the deficiency can be remedied. It is at this point that it must consider whether the proposal in the application is 'necessary or desirable in order to secure adequate provision of pharmaceutical services in the neighbourhood'. In this context, two expressions used in the regulation call for comment. First, the words 'necessary or desirable' are intended in our opinion to give flexibility in the manner in which a shortfall in provision is remedied. If the proposal under consideration does no more than make up the shortfall, that proposal will obviously be 'necessary' to secure adequate provision of pharmaceutical services in the neighbourhood. In some cases, however, the proposal may go further, and result in a degree of over-provision. The use of the word 'desirable' is in our view intended to permit the approval of such a proposal, if the decision-maker is satisfied that, notwithstanding the over-provision, the proposal is still 'desirable' in order to secure adequacy. It should be noted, however, that the expression 'necessary or desirable' is only relevant to the second question that the decision-maker must consider, namely how an identified inadequacy is to be remedied. It is not in our opinion relevant to the first question, whether such an inadequacy exists in the first place. Secondly, as we have already noted, the use of the word 'secure' seems to us to indicate that it should be possible to maintain a state of adequacy of provision into the future. That could in some cases result in some degree of present over-provision. Subject to these comments, however, the question of whether a proposal is necessary or desirable in order to secure an adequate provision of pharmaceutical services is a matter for the Pharmacy Practice Committee or the National Appeal Panel as a specialist tribunal."
At the hearing before me, counsel agreed that that was the approach which the Panel was required to follow in considering the petitioners' application.
[6] The procedure for the making and the determination of applications is set out in Schedule 3 to the Regulations. The application to the Board is determined on its behalf by the Pharmacy Practice Committee ("the PPC"). An appeal from the decision of the Board is determined by the National Appeal Panel ("the Panel") in accordance with the terms of Part II of Schedule 4 to the Regulations. The Panel consists of nine members, of which four are pharmacists and five (including the chairman and vice chairman) neither are nor have been pharmacists or doctors, or dentists, or ophthalmic opticians or the like. In terms of para (15) of Part II of Schedule 4, the Panel is required to give reasons for its decision at the same time as giving notice of it to the Board; and the Board is required to intimate both the decision and the reasons for it to the applicant and other relevant persons.
The Panel's decision and the petitioners' response to it
[7] The
appeal to the Panel was heard on
"The provision of pharmaceutical services at the premises was necessary in order to secure adequate provision of pharmaceutical services in the neighbourhood in which the premises were located by persons whose names are included in the Pharmaceutical List and that accordingly, the appeal was refused."
That decision was intimated to the
petitioners, amongst others, by letter of
The Panel's response
[8] In
its decision of
"(a) neighbourhood;
(b) adequacy of existing pharmaceutical services in the neighbourhood and in particular, whether provision of pharmaceutical services at the premises named in the application was necessary or desirable in order to secure adequate provision of pharmaceutical services in the neighbourhood in which the premises were located".
Under the heading "Neighbourhood,
adequacy, necessity and desirability", the Panel then summarised, in
considerable detail, the submissions made by the applicants (Dalston Pharmacy Limited, the third respondents) and by the
appellants (United Co-operatives Limited, the petitioners). In their decision, they first dealt with the
question of neighbourhood. The concluded that the neighbourhood should be defined as "the town
of
"22. Having reached that decision [viz. on neighbourhood], the Panel was then required to consider the adequacy of existing pharmaceutical services in that neighbourhood, and whether the granting of the application was necessary or desirable in order to secure adequate provision of pharmaceutical services in that neighbourhood.
23. [1]
Within the neighbourhood, as defined by the Panel, it
was noted that there was one pharmacy which provided pharmaceutical services to
the town of
24. For the reasons set out above, the Panel considered that the existing pharmaceutical service in the neighbourhood was inadequate. The Panel was satisfied that the provision of pharmaceutical services at the premises of the Applicant was necessary in order to secure the adequate provision of pharmaceutical services in the neighbourhood in which the premises were located by persons whose names are included in the Pharmaceutical List. In the circumstances it was the decision of the Panel that the appeal be refused."
The petitioners' criticisms focus in particular upon para 23. For this reason, and for ease of reference to the arguments, I have numbered the individual sentences in that paragraph.
Submissions - adequacy of the Panel's reasons
The
petitioners' submissions
[9] As
I have indicated, although the petition sought a reduction of the decision both
on Wednesbury
and Wordie
grounds, it was only the latter that were pressed in argument on behalf of the
petitioner. In support of his general
submission, and as illustrating the sort of reasons which the Panel ought to
have given, Mr Lindsay, for the petitioner, referred me to Safeway Stores plc v National Appeal Panel 1996 S.C. 37,
citing Wordie
and Albyn Properties Ltd v Knox 1977 S.C. 108, and to William
Hill (Caledonian) Ltd v City of
Glasgow Licensing Board 2003 S.L.T. 668.
He accepted that the panel did not have to go into every detail that
informed their decision or to deal with every piece of evidence. However, they had to deal with the
substantive issues and their decision should leave the petitioners in no real
doubt as to what their conclusions were on material issues. This was not a case where they have merely
agreed with the PPC. The arguments had
moved on since the hearing before the PPC, and additional material had been
lodged. Mr Lindsay emphasised that
his complaint about lack of adequate reasons was not merely formal. Unless adequate reasons were given, one could
not tell whether the Panel had adopted the right legal test or whether there
was any procedural unfairness. As an
example of the latter, one of his complaints was that the Panel said very little
about the site visit that they had undertaken.
They should be required to say what they had taken from that visit as
relevant to their decision. Otherwise
there was a risk that they had failed to give the petitioners the opportunity
of dealing with a matter which they had considered relevant: cf. William
Hill (
[10] Turning to the decision itself, Mr Lindsay did not
criticise the Panel's identification of the relevant neighbourhood as being the
town of
[11] Mr Lindsay's main criticisms related to para 23 of the decision letter. He referred first to the way in which the Panel had dealt with the site visit which it had carried out that morning. This is focused in para 9.1 of the petition. In sentence [7] of para 23 of the decision letter, the Panel says this:
"At the site visit by the Panel that morning, the only pharmacist on duty was a locum although the number of dispensing assistants was considered to be sufficient."
Although it was known that there had been a site visit that morning, nothing had been said at the hearing about the site visit. If the sole fact that they had taken away from the visit was that there was only one pharmacists there at the time of the visit, and that he was a locum, then he had no complaint about that. But it was unclear what else they had taken into account from the visit. He referred to the positioning of that sentence, which he said was "sandwiched in between the two killer conclusions": namely that the number of pharmacists present at the pharmacy on a daily basis, being one, together with locums, was considered to be inadequate; and that it was the Panel's view that the existing pharmacy had not been able to demonstrate its ability to cope with the requirements of a new contract. There was, he said, a legitimate concern that the Panel took something from the visit more than the mere fact that there was only one pharmacist on duty at the time of the visit. There may well have been procedural unfairness in not putting its concerns to the petitioners. However, without better reasons being given, the petitioners could not make this criticism good.
[12] Next, under reference to para 9.2 of the petition, Mr Lindsay referred to the finding of inadequacy in the preceding sentence [6]. This reads as follows:
"The number of pharmacists present at the current pharmacy on a daily basis, being one, together with locums, was considered to be inadequate to meet the requirements of both the very high and above average number of prescriptions being dispensed every month and the longer consultation demands of the new pharmacy contract including the provision of the minor ailments scheme."
Mr Lindsay pointed out that in Mr Brooker's submissions to the Panel he had dealt with the minor ailments scheme, the provision of a consultation facility and other matters relating to the questions addressed in that sentence. Yet the Panel had not said what part of Mr Brooker's submissions it had accepted or rejected to enable it to reach the conclusion expressed in that sentence, or on what basis it had accepted or rejected them.
[13] As part of the same complaint, Mr Lindsay drew attention to the sentences - [9] and [10] - dealing with the letter from Dr Porteous. The Panel says this:
"The letter from General Medical Practitioner, Dr Porteous, had been indicative of a level of inadequacy of pharmaceutical provision in the neighbourhood. It was the Panel's view that such a letter was most unusual in criticising the adequacy of pharmaceutical services."
In his submissions to the Panel, Mr Brooker had contested that letter point by point. He had said that all the criticisms had been dealt with. There had been a problem but it was now sorted out. There had been no complaints since July. The petitioners had a reasonable concern that the Panel had simply failed to take account of that evidence.
[14] Mr Lindsay then turned to paragraph 24 of the decision to develop a criticism made in para 9.3 of the petition. There the Panel said that it considered that the existing pharmaceutical service in the neighbourhood was inadequate and was satisfied that the provision of pharmaceutical services at the premises of the applicant was necessary in order to secure the adequate provision of pharmaceutical services in the neighbourhood. They had simply "parroted" the words of the statutory provision. The petitioners had a legitimate concern that the Panel had not addressed its mind properly to the two-stage test. At the second stage, as was shown in the Lloyds Pharmacy case, it was necessary for the Panel to consider whether the provision of the new pharmaceutical services at the premises of the applicant was necessary or desirable. Two points had been made, relating to the location of the new premises and the potential for staff being poached. The Panel had simply not addressed these points.
[15] In the course of discussion, Mr Lindsay focused on the fact that the Panel had not even made any finding that the provision of the new pharmaceutical services was desirable. In Lloyds Pharmacy it was emphasised that the words "necessary" and "desirable" served different functions. If the new pharmacy did no more than make up the shortfall in existing services, the proposal would be "necessary". But if the new pharmacy would result in a degree of over-provision, the Panel could not grant the application unless it was also "desirable". The Panel had made no finding that the new pharmacy was desirable. Accordingly, it had erred in law and the decision should be reduced on that basis.
The
respondents' submissions
[16] Mr Ellis, QC, who appeared for the Panel, drew my attention first to certain detailed provisions of the Regulations and, in particular, to Schedules 3 and 4 thereof. He pointed out that, in terms of Regulation 5(14), the entry in the pharmaceutical list consequent upon an application being granted by the Board is to be made after the expiry of the period for appeal or the conclusion of appeal procedures. He then took me to the provisions in Schedule 3 dealing with the determination of applications and the appeal procedures. The functions of the Board in dealing with applications were to be exercised by the PPC on its behalf. Any appeal by a disappointed party against a decision on the application required to be by notice of appeal given to the Board within 21 days after notification of the decision to that party: para 4(1). The notice of appeal had to contain "a concise statement of the facts and contentions upon which the appellant intends to rely": para 4(3). Any appeal had to be referred by the Board to the National Appeal Panel. Part II of Schedule 4 dealt inter alia with the composition of the Panel. I have already referred to its composition: see para [6] above. Mr Ellis submitted that with four pharmacists on the Panel, it could properly be described as a specialist tribunal.
[17] Turning to the requirement for reasons, Mr Ellis pointed
out that the reasons given both in the Lloyd's
Pharmacy case and in Safeway Stores v National Appeal Panel were very brief, but they were, nonetheless, considered
adequate. Wordie was not directly in point
in that it dealt with the question of what level of detail was required for a
planning decision. But it emphasised
that what reasons are adequate will depend on the context, including matters
such as the nature of the tribunal and the scope of the material and arguments
put before the Panel. In addition to the
cases cited by Mr Lindsay, Mr Ellis referred me to South Bucks District Council and Another v
Porter (No.2) [2004] 1 WLR 1953
where the English authorities on the question of adequacy of reasons are
reviewed in the Opinion of Lord Brown of Eaton-under-Heywood at paras 24-34, and summarised at paras
35-36. That summary of the authorities
was referred to with apparent approval by Lord Macphail
in the case of Hyaltech Ltd (unreported,
[19] Mr Ellis next turned his attention to para 24 of the decision letter. The Panel re-iterated that the existing provision was inadequate. It then, correctly, moved onto the next stage of considering whether the provision of services at the new pharmacy was necessary to secure the provision of adequate services in the neighbourhood. It was not necessary for the Panel to do more than state its conclusion that it was necessary. If the present provision was inadequate, further provision was clearly necessary to make good the shortfall. The petitioners complained that the Panel had not dealt with the concerns expressed at the hearing about the location of the new pharmacy and about the risk of staff poaching. But neither of these issues was relevant to the question of necessity. Necessity was demonstrated by the finding that the present service was inadequate.
[20] Finally Mr Ellis addressed the point raised by Mr Lindsay that the Panel had not dealt with the question of "desirability". He pointed out that this attack on the decision was not foreshadowed in the Petition. He did not take the point that it could not be raised without amendment of the Petition, nor did he submit that he needed more time to deal with it. However, he submitted that it was inappropriate to admit a new case at this stage. The Panel had to deal with the arguments and material placed before it. The notice of appeal set out the petitioners' grounds on which it challenged the decision of the PPC. The question of "desirability" in the technical sense used in the Regulations and explained in the Lloyds Pharmacy case, as a necessary hurdle to be overcome if the proposed new pharmacy would result in over provision, had not been raised. It was not necessary for the Panel to consider it. Further, the criticism of the Panel's failure to deal with desirability proceeded upon the factual assumption that including the new pharmacy on the Pharmaceutical List would result in over provision. The respondents did not accept that assumption. There is no finding to that effect in the decision letter, nor any reason to suggest that the Panel ought to have made such a finding.
[21] On this question of adequacy of reasons, Mr Wallace, for the third respondents, was content to adopt the submissions of Mr Ellis.
Submissions - mora,
taciturnity and acquiescence
The
respondents' submissions
[22] The argument on mora, taciturnity and acquiescence was developed principally
by Mr Wallace. Mr Ellis
adopted his submissions, in advance, but added certain comments of his own on
the facts as seen from the perspective of the Panel. The Panel had made its decision on
[23] Mr Wallace adopted what Mr Ellis had said about the
facts. He added that even prior to the
hearing before the Panel, the petitioners had known
that the third respondents were intent on purchasing the premises subject to
gaining inclusion on the Pharmaceutical List and subject also to planning
permission for change of use. The third
respondents proceeded with the purchase under the impression they had formed
that it was now too late for the petitioners to go further with their
challenge. Completion was on
[24] Mr Wallace referred me to
[26] Mr Lindsay referred me to the decision of Lord Carloway in Edgar
Road Property Company v Moray Council
and others (unreported,
Discussion
[27] Although it was dealt with as part of the discussion, and indeed was argued second, it is appropriate to start by considering the plea of mora, taciturnity and acquiescence.
mora, taciturnity and acquiescence
[28] In Edgar Road Property, at paras [23] and [24], Lord Carloway described the present state of the authorities on the plea of mora, taciturnity and acquiescence in this way:
"[23] There have been a number of attempts in the
recent past to persuade the Court that delay in bringing judicial review
proceedings should of itself operate as a bar, having regard to the need for
certainty and efficiency in certain fields of administrative law, notably
planning (see Pickering v Kyle and Carrick District Council (supra)
at 50); Uprichard v
Fife Council (supra) at 955). It is
recognised that the principles of mora, taciturnity and acquiescence, as they have been
developed in private law fields such as contract, do not sit entirely easily in
the arena of public administration (
[24] The
common law principles surrounding the plea remain broadly intact. Mere delay is not enough. There must be the additional elements of
taciturnity and acquiescence (Assets Co v Bain's Trs
(supra), Lord President (Kinross) at 705, followed in Singh v Secretary of State
for the Home Department (supra), Lord Nimmo Smith
at 537; R (Burkett) v Hammersmith LBC
(supra), Lord Hope at 1613). Lord
Penrose's analysis in
"The essence of the plea ... is that the person or persons having a legitimate ground of challenge refrain from exercising the rights which flow from that ground of challenge, or from intimating an intention to exercise those rights, in circumstances in which, to their knowledge, the holder of a planning permission proceeds with material operations in reliance upon the permission, and so alters his position that there would be loss or other form of prejudice to him if the permission were to be reduced".
This is a relatively restrictive test and perhaps more so than the one applied by Lord Prosser in Hanlon v Traffic Commissioner (supra at 805), where he addressed the 'reasonableness' of the delay. For present purposes, however, I will proceed upon the basis that it is an accurate reflection of the current law."
In the discussion before me, there was little or no disagreement as to the relevant principles. All parties agreed that mere delay was not sufficient. There had, in addition, to be taciturnity and acquiescence. I propose to proceed on that basis. I note the suggestion in the recent decision of the Inner House in Barrie Tonner v Reiach and Hall (unreported, 12 June 2007) at para [114] that there may be a distinction between the plea referred to as a plea of mora in judicial review cases, invoked when there has been undue delay in seeking judicial review, and the common law plea of mora in cases of private right. If there is such a distinction, it may be because the full requirements of plea of mora are inapplicable to some cases of judicial review. For example, if the common law requirement of taciturnity is a requirement of the plea in a judicial review context, the objector may in practice be able to hold up implementation of, or reliance on, a decision by continually threatening action without actually taking legal proceedings. However, there is no need for me to consider this further in this case.
[29] In delivering the Opinion of the court in
"[that] in order to lead to such a plea [of mora] receiving effect, there must ... have been excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party"
and went on to give this summary of the law:
"It does not appear to me to be possible to define the plea of mora, taciturnity and acquiescence more precisely than the dictum in Assets Co. Limited v Bain's Trustees to which I have made reference. The plea is necessarily protean and it must depend on the particular circumstances of the case whether or not its requirements are satisfied. There may be cases where the passage of time, as related to the surrounding circumstances, may be such as to yield the inference of acquiescence in the decision in question. Usually, there will have been such alteration of position on the part of one of the parties, or of third parties, as, together with the passage of time, to yield the inference of acquiescence. The petitioner may, however, be in a position to put forward an explanation for the delay sufficient to rebut the inference. The concept of detriment to good administration appears to me to have a part to play in all of this, not as an abstraction but where further administrative action has been taken in the belief that the decision in question has been acquiesced in."
Having considered these
authorities, the Lord President in
"We have quoted the passage from Lord Nimmo Smith's Opinion in Singh ... because counsel were agreed that this was the fullest treatment of the subject in judicial review cases. While we are content to adopt it, we would emphasise that prejudice or reliance are not necessary elements of the plea. At most, they feature as circumstances from which acquiescence may be inferred. By its nature, acquiescence is almost always to be inferred from the whole circumstances, which must therefore be the subject of averment to support the plea."
This insistence that neither prejudice nor reliance is a necessary element of the plea is an important reminder that the whole plea of mora, taciturnity and acquiescence looks to the conduct of the would-be pursuer or petitioner, and the inferences sought to be drawn from that conduct. The essence of the plea is acquiescence, to be inferred from the petitioner's inaction. Although the three elements of the plea overlap and, indeed, coalesce, I think it is helpful, in considering a plea of mora, taciturnity and acquiescence, first to consider separately the questions of mora and taciturnity before going on to assessing what inferences fall to be drawn from those factors in the context of the whole of the surrounding circumstances.
[30] The term mora
refers to the delay in bringing legal proceedings to challenge the decision
complained of. In cases of private
right, the relevant periods are likely to be counted in years, not months. In cases of judicial review, the plea is
likely to be invoked where the delay is much shorter. That can be explained by the administrative
law context and, more particularly by the requirements of good administration; not "as an
abstraction" (per Lord Nimmo Smith in Singh), but because the statutory or
administrative context shows that some decisions are likely to be acted upon
promptly; and therefore, if they are to
be challenged, should be challenged "with alacrity". This is the expression used by Lord Eassie in Devine
at para [22] in the context of the grant of planning
consent, but similar considerations seem to me to apply in a context such as
the present. Mora simply means delay beyond a reasonable time. What is a reasonable time will depend on all
the circumstances. The requirements of
good administration rank high amongst those circumstances. In
[31] In the present case, the Panel's decision was known to the
petitioners by late October 2006. A
solicitor's letter was sent on behalf of the petitioners on
[32] Taciturnity simply connotes a failure to speak out in assertion
of a right or claim when a reasonable person in that position would be expected
to speak out. Here the only
communication from the petitioners was in the letter from their solicitors of
[33] What then of acquiescence?
Acquiescence simply means assent to what has taken place. The enquiry is not a subjective one, to be
answered by looking into the mind of the petitioner. The test is objective. Acquiescence requires to be inferred from the
petitioners' inaction and silence. The
question is how the matter would have appeared to a reasonable person observing
the petitioners' conduct, knowing of all the circumstances of which the
petitioners knew or ought to have known when acting in the way they did. The same facts as inform the assessment of mora and
taciturnity are relevant to the question of acquiescence. As is pointed out in
[34] I consider that anyone looking objectively at the petitioners'
actions as at, say February 2007, would have concluded
that the petitioners had decided not to challenge the Panel's decision. In other words, they would have concluded
that the petitioners had, albeit reluctantly, acquiesced in it. The petitioners knew, or ought to have
appreciated, that a challenge to this sort of decision had to be made
promptly. The petitioners also knew that
the Dalston Pharmacy was intent on going ahead with
the purchase of the premises subject inter
alia to inclusion on the pharmaceutical
List. Having got a decision in their
favour, they could not be expected to wait forever. The letter of
Adequacy
of reasons
[35] There was little, if any, dispute between the parties as to the law applicable to such a complaint. The principles are well known. I do not propose to re-state them here. They are conveniently summarised in para 36 of the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No.2):
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
Although that was said in the context of a planning decision, it applies generally to decisions of this sort. Many of the relevant authorities are planning cases. The other authorities cited by counsel, whether or not in the field of planning, all pointed in a similar direction, some emphasising one aspect of the approach, some another.
[36] I propose to consider Mr Lindsay's criticisms of the adequacy of the reasons by reference to the heads under which he advanced his arguments. The first complaint is that the Panel failed to specify what adverse inferences they drew from the site visit. In my opinion this criticism must fail, if for no other reason than that there is nothing to suggest that they took from the site visit anything more than they set out in line [7] of para 23. The positioning of that sentence, "sandwiched" though it may be, does not lead to any inference that they were doing any more than referring to their site visit by way of confirmation that there was generally only one pharmacist on duty.
[37] The second complaint is that the Panel failed to provide any reasons for concluding that one pharmacist was inadequate. This criticism fails too, in my judgement. The assessment of the adequacy of the service provided by the petitioners is essentially a matter for the Panel. I accept Mr Ellis' submission that the Panel is an expert tribunal. Four of the nine members are pharmacists. The assessment required by Regulation 5(10) is one requiring expert evaluation. In giving its reasons for its evaluation, the Panel cannot be expected to deal in detail with every matter raised in argument and on the evidence. Nonetheless, it has given reasons in the instant case which, in my opinion, are intelligible and explain succinctly why they have come to their view. The nub of those reasons is contained in sentences [6] and [8] of para 23. The Panel has formed the view that one pharmacist is inadequate to meet the current and future requirements. It was not satisfied with the attempts on behalf of the petitioners to demonstrate their ability to cope with the requirements of the new contract. Although the Panel says that the existing pharmarcy "has not been able to demonstrate its ability to cope ...", I do not think that this should be read as in some way placing the onus of proof on the petitioners. It is more fairly to be read as part of the overall conclusion reached by the Panel - in light of its assessment that one pharmacist was inadequate, and in light of the evidence from Dr Porteous' letter that there had been a level of inadequacy - that the service provided by the petitioners was not adequate for either the existing or future needs of the neighbourhood. The last sentence, sentence [11], simply highlights the fact that ,with an increasing population, the future needs for which pharmaceutical provision will be required will be all the greater. It is true that Mr Brooker sought to persuade the Panel to reach a contrary view. His arguments were obviously not accepted. It was not incumbent on the Panel to refer specifically to each point he made. Their essential finding of inadequacy is clear. In my opinion the Panel has set out its reasons adequately.
[38] Mr Lindsay's third point, namely that in para 24 the Panel does not give any reasons for finding that the provision of pharmaceutical services at the new premises is necessary, is correctly answered by Mr Ellis' submission that necessity is established once it has been determined that the existing provision is inadequate. As is said in Lloyds Pharmacy at para [11],
"if the proposal under consideration does no more than make up the shortfall, that proposal will obviously be 'necessary' to secure adequate provision of pharmaceutical services in the neighbourhood." [emphasis added]
Matters such as the location of the new premises and the risk of poaching of staff have nothing to do with this assessment.
[39] I have recorded that Mr Lindsay also sought to argue that the Panel had erred in law in failing to deal with the question of desirability. This was never raised by the petitioners in the appeal to the Panel. The Panel was, therefore, not asked to deal with it in its decision or its reasons. The question of desirability only arises if the establishment of the new pharmacy would lead to a measure of over-provision. One has to be careful about this. There is no clear line to be drawn. It is not an exercise capable of mathematical certainty. To my mind, the concept of desirability comes into play only where the establishment of the new pharmacy would result in substantial over-provision. In Lloyds Pharmacy, at para [11], the court went on from the passage cited in the last paragraph to say that the use of the word "desirable" was intended to permit the approval of a proposal where the services to be provided by the new pharmacy "may go further [viz., than merely making up the shortfall], and result in a degree of over-provision". I do not think that the court intended that to include some minor over-provision resulting from the new pharmacy doing a little more than making up the shortfall. It is difficult, where the assessment of the adequacy of the existing services is, at least in part, qualitative, to see how, in a borderline case, one could decide whether the listing of the new pharmacy would result in some minor over-provision, so as to require the Panel to address the question of desirability rather than necessity. Be that as it may, in the first instance, if these matters are raised, it is for the Panel to consider whether there will be over-provision and, if so, whether the new pharmacy is desirable. The Panel has to form a view. On a petition for judicial review, any view expressed by the Panel could only be challenged on Wednesbury grounds. Since the Panel was never asked to deal with this point, and make findings, I consider that it would be quite wrong now to allow this new point to be taken at this stage.
[40] For these reasons I reject the petitioners' argument that the Panel failed to give adequate reasons for its decision.
Disposal
[41] In the result, therefore, I shall sustain the first, second and third pleas-in-law for the first respondents and the first second and fifth pleas-in-law for the third respondents, repel the petitioners' pleas-in-law and refuse the prayer of the petition.