Scottish Court of Session Decisions

The relevant legislation

"(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).

"[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.

At the hearing before me, counsel agreed that that was the approach which the Panel was required to follow in considering the petitioners' application.

The Panel's decision and the petitioners' response to it

"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 24 October 2006. On 5 December 2006, their London solicitors, Charles Russell, wrote to the Panel stating that the petitioners intended to challenge the decision and setting out their reasons for saying that the decision was unlawful. They sought the agreement of the Panel that its decision should be set aside and that the appeal should be re-determined by a differently constituted panel. The letter ended by saying that if the Panel was not prepared to do this, they had instructions from the petitioners to arrange for Scottish agents to apply to the Court of Session for an order for reduction of the decision. The chair of the Panel responded on 18 December 2006 saying that the Panel did not accept the petitioners' contentions that it had acted unlawfully and was not prepared to set aside the decision. No further steps were intimated on behalf of the petitioners until a petition for judicial review was lodged on 2 March 2007. A first order was granted on 6 March 2007.

The Panel's response

"(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 Lockerbie, being bounded by the green fields on its circumference". Their conclusions on neighbourhood are not challenged. They then turned to deal with the "Adequacy of existing provision of pharmaceutical services and necessity or desirability". In view of the detailed criticism made of this part of their decision, I should set out in full paras 22-24 of the decision letter:

"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 Lockerbie and the adjacent villages. [2] The nearest pharmacy outside Lockerbie was located in Lochmaben, approximately four miles distant. [3] It was noted that the existing pharmacy had only relatively recently introduced needle exchange and Methadone dispensing. [4] There was no collection and delivery service except for emergencies. [5] A full delivery service would be available from January 2007. [6] 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 a 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. [7] 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. [8] It was the Panel's view that the existing pharmacy had not been able to demonstrate its ability to cope with the requirements of the new contract at the date of the Panel hearing. [9] The letter from the General Medical Practitioner, Dr Porteous, had been indicative of a level of inadequacy of pharmaceutical provision to the neighbourhood. [10] It was the Panel's view that such a letter was most unusual in criticising the adequacy of pharmaceutical services. [11] The Panel noted the housing developments under construction and those proposed, in the neighbourhood, which were considered to be significant, in the context of an increasing population of the neighbourhood.

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

"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.

"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.

"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.

The respondents' submissions

Submissions - mora, taciturnity and acquiescence

The respondents' submissions

Discussion

mora, taciturnity and acquiescence

"[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 (Pickering v Kyle and Carrick District Council (supra) Lord Penrose at 53). Perhaps because of this, the Court has occasionally ventured to suggest that the determination of whether a plea of mora is made out in the context of judicial review is a matter for the court's discretion having regard to a variety of factors, including the need for sound administration (Uprichard v Fife Council (supra), Lord Bonomy at 956). The Court does appear to have approached the matter from that angle at times (Atherton v Strathclyde Regional Council (supra), Lord Cameron at 559). However, although the idea of the Court's decision on the plea being one of discretion was floated during the hearing in this case, it was, quite correctly, not pursued by any party. The decision is not a discretionary one but one involving the Court determining whether the party founding upon it has established that the plea is applicable on the facts presented.

"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.

"[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 Somerville said this (at para [94]):

"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.

Adequacy of reasons

"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.

"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.

Disposal