[New search]
[Printable PDF version]
[Help]
OUTER HOUSE, COURT OF SESSION
[2025] CSOH 33
P959/24
OPINION OF LORD SANDISON
in the Petition of
BURNS PHARMACY LIMITED
Petitioner
for
Judicial Review of decisions of Ayrshire and Arran Health Board to extend time periods in
relation to an application by Sean Manson for the opening of a pharmacy at Old Monkton
Primary School
Petitioner: Lindsay KC; CMS Cameron McKenna Nabarro Olswang LLP
Respondent (Ayrshire and Arran Health Board): MacGregor KC, James; NHS Central Legal Office
28 March 2025
Introduction
[1]
Mr Sean Manson is a registered pharmacist who wishes to open a pharmacy in his
home village of Monkton in Ayrshire, which presently has no such facility. The petitioner,
Burns Pharmacy Limited, would much rather that he did not do so. It operates several
pharmacies in nearby locations which currently serve the pharmaceutical needs of the
residents of Monkton, and it would prefer that situation to continue. It claims that the
opening of a pharmacy in Monkton and the consequent likely diversion of customers and
income from it would adversely affect its ability to invest in and enhance its own
2
pharmaceutical offering in the neighbourhood and result in a poorer service overall being
offered to residents in the area. The validity of that proposition is not, however, what is in
issue in this case. The opening of a pharmacy is a highly regulated affair and the petitioner
has made various attempts within the applicable legal framework, over a period of several
years, to prevent the necessary permissions being granted to Mr Manson or to attack the
validity of such permissions as have been granted. By the present petition it seeks to have
the court reduce as unlawful what it characterises as a unilateral extension of time given to
Mr Manson by the respondent Health Board as part of the application process to open a new
pharmacy, together with consequent and ancillary orders. The matter came before me for a
substantive hearing.
Relevant regulations
[2]
The National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009
inter alia provide, so far as material for present purposes:
"5.-- Pharmaceutical list
(1)
The Board shall prepare a list to be 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 said list shall also state the nature of the pharmaceutical
services to be provided, and the days and hours during which the premises
are open, and show pharmacists as a separate category of persons within that
list.
(2)
A person (hereinafter referred to in this regulation as an `applicant')
(a)
who wishes to be included in the pharmaceutical list for the
provision of pharmaceutical services; or
(b)
whose name is already included in the pharmaceutical list, but
who intends
(i)
to open within the Board's area additional premises
from which to provide pharmaceutical services, or
3
(ii)
to relocate within the Board's area the premises from
which the applicant provides pharmaceutical services
shall ... complete a pre-application and joint consultation in accordance with
regulation 5A before making an application, and an application in every
instance shall be in accordance with whichever version of Form A set out in
Schedule 2 is appropriate.
...
(2C)
An applicant's assessment in terms of Form A must include--
(a)
a written statement from the person who may grant possession
of the premises that (without prejudice to any negotiation in relation
to any such grant) the premises may be used for the provision of
pharmaceutical services;
(b)
a description of any adjustments the applicant intends to make
to the premises to ensure that the applicant will comply with the
duties incumbent upon a provider of pharmaceutical services under
section 29 of the Equality Act 2010;
(c)
a description of the boundaries of the neighbourhood within
which the applicant intends to provide pharmaceutical services;
(d)
an assessment (in sufficient detail so as to assist the Board to
make a determination) of the current provision in the neighbourhood
described by the applicant of services for which the applicant believes
there is not adequate provision by persons on the pharmaceutical list
and evidence in support of that belief;
(e)
a description of the pharmaceutical services which the
applicant will provide;
(f)
the date by which the applicant intends to commence the
provision of such services;
(g)
the hours in each day that the applicant intends to provide
such services;
...
...
(10)
An application ... shall be assessed in accordance with the procedures
set out in Schedule 3, and shall be granted by the Board--
(a)
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;
...
4
8.-- Provisional pharmaceutical list
(1)
The Board may also in accordance with this regulation prepare a list,
to be called `the provisional pharmaceutical list' in which there shall be
included ... the name of any person, other than a doctor or dentist, who
undertakes provisionally to provide pharmaceutical services. The
provisional pharmaceutical list shall state the particulars required under
regulation 5(1) in relation to any such person and also the date (`the
provisional date') from which such person undertakes to provide
pharmaceutical services at the premises specified in an application under
regulation 5(2).
...
(3)
Where an application is determined by the inclusion of the name of
the applicant in the provisional pharmaceutical list, the Board shall give
notification of the decision to the applicant in Form D set out in Schedule 2,
and in this regulation any reference to `the date of inclusion' is to the date of
inclusion in the provisional pharmaceutical list as stated in Form D.
(4)
Subject to paragraph (5) the applicant shall, as soon as reasonably
practicable after the date of inclusion and in any event not later than either
(a)
the date six months after the date of inclusion, or
(b)
if earlier, the provisional date,
submit Form B set out in Schedule 2 with any information required but not
given in paragraph 2(b) of Form A(1) or A(2) and on receipt of such
information the Board shall include the name of the applicant in the
pharmaceutical list and remove it from the provisional pharmaceutical list.
(5)
Where a person whose name has been included in the provisional
pharmaceutical list applies in writing to the Board not later than twenty eight
days before the date by which, in terms of paragraph (4) above, the applicant
is required to submit Form B, that the applicant wishes the Board to extend
the period for submission of that Form and the Board is satisfied that, due to
circumstances outwith that person's control and which could not reasonably
have been anticipated at the date of the application, there is no reasonable
prospect of such person being able to submit that Form by that date, the
Board may extend the period for submission of Form B by a further period
not exceeding nine months.
(6)
Where an applicant, whose name is included in the provisional
pharmaceutical list, has not submitted Form B in accordance with paragraphs
(4) or (5), the applicant's name shall be removed from the provisional
pharmaceutical list."
5
Background
[3]
As long ago as 19 October 2017 Mr Manson first applied to be included in Ayrshire
and Arran Health Board's provisional pharmaceutical list in respect of premises at 21 Main
Street, Monkton. A hearing before the Board's Pharmacy Practices Committee took place on
5 December 2017 and the application was granted on the basis that it was desirable in order
to secure the adequate provision of pharmaceutical services in the area. This decision was
appealed to NHS Scotland's National Appeal Panel, and the appeal was upheld. The
application was heard again before a fresh Pharmacy Practices Committee on 28 August
2018 and that committee decided that the application was neither necessary nor desirable in
order to secure adequacy of provision. Mr Manson in turn appealed that decision, but his
appeal was dismissed on 8 January 2019. On 5 August 2021 Mr Manson submitted a fresh
application to be admitted to the Board's pharmaceutical list in respect of premises at Old
Monkton Primary School, Station Road, Monkton. The Pharmacy Practices Committee
hearing in respect of that application was held on 2 November 2021 and the decision of the
committee, issued on 23 November 2021, was favourable. That decision was appealed to the
National Appeal Panel, which on 28 February 2022 allowed the appeal on the basis that the
committee's decision had failed to state the grounds upon which it had concluded that the
existing services provided to the neighbourhood were inadequate. The Panel remitted the
application back to the committee for further explanation of that matter, and a revised
decision was issued in June 2022, which was again favourable to Mr Manson. A further
appeal to the Panel was dismissed by it on 10 August 2022. The petitioner challenged the
Panel's decision by way of a petition for judicial review, which after lengthy delay was
refused on 6 October 2023. There is also a further petition for judicial review at the instance
of Burns Pharmacy Limited in dependence before the court concerning Mr Manson's
6
proposals at Monkton, which appears to be entirely an artefact of and a satellite to this
petition, and which I mention only to illustrate further just how contentious the situation has
long been and remains.
[4]
Given the rather dense quality of the 2009 Regulations (only a simplified version of
which is set out above), it may be helpful by way of introduction to the issues which arise
for decision in this case to begin by explaining in very general terms how the application
process for opening a new pharmacy in Scotland works. A pharmacist wishing to open in
new premises in a Health Board's region will often seek in the first instance to be admitted
to that Board's provisional pharmaceutical list, because it is usually necessary to make sure
that the premises in question are made suitable for operation as a pharmacy and there is
little point in carrying out the necessary work should it transpire that the Board is for one
reason or another not willing in principle to approve the application. Although the
maintenance of a provisional pharmaceutical list is not mandatory in terms of the
2009 Regulations, in fact one is maintained by every territorial Health Board in Scotland,
essentially because of the practical considerations just referred to. An applicant for inclusion
on the pharmaceutical list or the provisional such list makes his application to the relevant
Board on something called a "Form A", provided for (along with the other forms to be
referred to) in a Schedule to the Regulations. One of the things which is supposed to be
stated in the Form A is the date by which the applicant undertakes to open the pharmacy for
business if his application is approved. If the Board is prepared to admit the applicant to the
provisional pharmaceutical list maintained by it, it issues him with a "Form D" stating the
date on which he has been so admitted. The applicant will then have to submit a "Form B"
when he is ready to open the pharmacy, in essence providing any necessary details which he
was unable to supply at the time of completing Form A, and if the details so provided satisfy
7
the Board, he will be removed from the provisional pharmaceutical list and added to the
substantive such list in respect of the premises in question. The Form B has to be submitted
within a certain timeframe after the issue of the Form D, and the question of whether that
timeframe was lawfully adhered to in the present case is the occasion of this litigation.
[5]
Mr Manson sought inclusion on the Board's provisional pharmaceutical list in
August 2021 because the premises from which he proposed to operate were not then
registered in his name with the General Pharmaceutical Council and in that state of affairs
he could not apply directly for inclusion in the Board's substantive pharmaceutical list. In
terms of the 2009 Regulations he accordingly filled in a Form A(1) to apply for inclusion in
the provisional such list. In that form he undertook to register the premises with the GPC on
successful admission to that list, and to provide pharmaceutical services there "within 3-4
months of a successful result" (a "successful result" presumably referring to his inclusion on
the provisional list).
[6]
As a result of the appeals and judicial review already described, much time had
passed before Mr Manson's application for admission to the provisional pharmaceutical list
could finally be determined by the Board. During the subsistence of these processes,
necessary work to render his premises suitable for operation as a pharmacy was
understandably suspended, lest it and the associated expense might ultimately prove
abortive. On 9 October 2023, days after the refusal of the petitioner's judicial review of the
National Appeal Panel's decision, and thus effectively as soon as he was able to proceed
further with his application, a conversation took place between Mr Manson and an
employee of the Board, Carolyn Dickson, the outcome of which was that to use a neutral
description an arrangement was arrived at concerning the allowable period for him to
lodge his Form B, the effect of which was that he was to have 6 months after his admission
8
to the provisional pharmaceutical list to do so, rather than the period of 3 to 4 months which
he had stipulated in his Form A in August 2021. On 10 October 2023 a Form D was issued
by the Board to Mr Manson in terms of Regulation 8(3) of the 2009 Regulations, which had
the effect of including his name on the Board's provisional pharmaceutical list as of that
date. If the arrangement made on 9 October 2023 was a lawful one, then the latest date
allowable for the submission of Form B would be 10 April 2024, and if Mr Manson wanted
any extension to that date, he would have had to apply for it at least 28 days in advance, i.e.
by 13 March 2024, and a maximum extension of 9 months to the original due date could
have been granted, to 10 January 2025.
[7]
The lawfulness of that arrangement made on 9 October 2023 is the crux of the present
proceedings. The petitioner argues that the Board had no power to set a final date for the
submission of the Form B later than that stated by Mr Manson in his Form A. If that is
correct, then the last possible date for his submission of Form B (being 4 months after his
admission to the provisional pharmaceutical list) would have been 10 February 2024, any
desired extension would have had to have been applied for by 13 January 2024, and the
maximum extension which could have been granted would have been one to 13 October
2024.
[8]
In fact, Mr Manson applied for an extension to the period allowed for the submission
of his Form B on 12 February 2024. That was in time if the arrangement of 9 October 2023
was lawful, but out of time if it was not. An extension of 9 months was purportedly granted
by the Board on 21 February 2024, to 10 January 2025. That extension was asked for in time
if the arrangement of 9 October 2023 was lawful, but was asked for out of time if it was not.
Mr Manson submitted his "Form B" on 14 November 2024. Again, that was in time if the
arrangement of 9 October 2023 and what followed thereon was lawful, but out of time if it
9
was not. The petitioner argues that the arrangement of 9 October 2023 was not lawful, that
in consequence Mr Manson did not submit his Form B in time, and that as a result his name
falls, in terms of Regulation 8(6), to be removed from the provisional pharmaceutical list and
he would require to make a fresh application of one kind or another to continue in his
attempts to open a pharmacy in Monkton. Quite what such an application would entail is a
matter in dispute between the parties, but it is at least clearly arguable that it would involve
starting from scratch with a new full consultation process having to be gone through before
a fresh Pharmacy Practices Committee decision and possible appeals and judicial review
following thereon.
Submissions for the Petitioner
[9]
Senior counsel for the petitioner asked me to declare that what the Board decided in
relation to fixing time limits for the submission of a Form B by Mr Manson (both initially on
9 October 2023 and by way of the subsequent extension on 21 February 2024) unlawful and
unreasonable, and to reduce those decisions. He further asked that I order the Board to
remove Mr Manson from its provisional pharmaceutical list in respect of the intended
pharmacy premises at Monkton.
[10]
Regulation 8(1) of the 2009 Regulations made provision allowing a Health Board to
create and keep a provisional pharmaceutical list. That list required to state, inter alia, the
date from which a person entered on it undertook to provide pharmaceutical services at the
premises he had specified in his application, and the Regulations referred to that date as
"the provisional date". In his application on Form A(1) to be included in the provisional list,
Mr Manson undertook to provide pharmaceutical services at the premises in question
"within 3 4 months of a successful result", a successful result presumably being his
10
inclusion in the provisional list. The date of his inclusion in the list was, in accordance with
Regulation 8(3), the date stated as such on the Form D issued by the Board, namely
10 October 2023. Regulation 8(4) required the submission of a Form B as soon as reasonably
practicable after that date, and in any event not later than either (a) the date six months after
the date of inclusion, or (b) if earlier, the provisional date. In the present case, as the
provisional date was earlier than the date six months after the date of inclusion, being 3
4 months after the date of inclusion, it was that earlier date by which Mr Manson was
required to submit his Form B, i.e. by 10 February 2024.
[11]
The Board had a discretion in terms of Regulation 8(5) to extend the time period set
out in Regulation 8(4) for lodging the Form B by a period not exceeding 9 months, if an
application for such an extension was made not later than 28 days before the date brought
out by Regulation 8(4) and if the Board was satisfied that, due to circumstances outwith the
applicant's control and which could not reasonably have been anticipated at the date of the
application, there was no reasonable prospect of him being able to submit the Form B by
that date. There was, however, no power or discretion to entertain such an application
outwith the specified time period or retrospectively to excuse a failure to lodge the Form B
timeously. Mr Manson had applied to the Board for a Regulation 8(5) extension on
12 February 2024, and on 21 February the Board had granted his application and
purportedly extended the period for him to lodge his Form B by 9 months.
[12]
Applications for inclusion on the pharmaceutical list or the provisional such list were
made, in accordance with Regulation 5(2), on whichever version of Form A set out in
Schedule 2 to the 2009 Regulations was appropriate. As Mr Manson's application was a new
one, Form A(1) was the appropriate version. Part 4(b)(vi) of that Form required an applicant
to "state the date you intend to commence the provision of services". The "provisional
11
date" was defined in Regulation 8(1) as "the date from which such person undertakes to
provide pharmaceutical services at the premises specified in an application under regulation
5(2)".
[13]
The date stated by an applicant in Part 4(b)(vi) of Form A(1) was the provisional date
for the purposes of Regulation 8(1). There was nothing irregular or unexpected in a
statutory form, such as the Form A(1), being used to provide the information that was
required for a statutory application. There was no other statutory mechanism for the
provisional date to be provided by an applicant. The provisional date was an important part
of the application and was a material consideration which was taken into account when
deciding whether or not to grant the application. In the present case Mr Manson had
undertaken in Form A(1) to begin providing pharmaceutical services at the premises in
question "within 3 4 months of a successful result", a "successful result" being inclusion in
the Board's provisional pharmaceutical list. Accordingly, he required to submit his Form B
no later than 4 months after this date of that inclusion, being no later than 10 February 2024.
[14]
The Board's decision on 9 October 2023 to extend the initial period for submitting the
Form B for the premises from 3 to 4 months to 6 months was unlawful because it was ultra
vires. It was ultra vires because the initial period for lodging the Form B was fixed by
Regulation 8(4). The Board had no discretion or other statutory power to vary the initial
period for submitting the Form B. In such circumstances, the Board's decision of 9 October
2023 was ultra vires and, therefore, unlawful.
[15]
The Board had no express or implied statutory power to amend the provisional date
specified by an applicant in Part 4(b)(vi) of the Form A(1). Such a power of amendment
would be contrary to the express terms of Regulations 5(2), 8(4) and 8(5). A power of
amendment could not be implied into legislation when it would contradict the express
12
provisions of the legislation. In any event, implied statutory powers unilaterally to vary the
provisional date and/or amend Part 4(b)(vi) of the Form A(1) were wholly unnecessary. If
Mr Manson required more time because of circumstances beyond his control, the Board
could have delayed issuing a Form D to him, which would have delayed his inclusion in the
provisional pharmaceutical list and thereby provided him with more time.
[16]
Further, on 12 February 2024, Mr Manson applied to the Board, in terms of
Regulation 8(5), for the period of time for him to submit a Form B in respect of the premises
to be extended. On 21 February 2024 the Board granted that application and purported to
extend the time for him to lodge his Form B. That decision was also unlawful. In order to be
made timeously, the application for an extension of time, under Regulation 8(5) required to
be made no later than 28 days before the expiry of a 4-month period from the date of
inclusion (four months from that date having been stipulated by Mr Manson in his
Form A(1) as the latest date by which he undertook to begin providing pharmaceutical
services from the premises and thus being the "provisional date"). The date of his inclusion
on the provisional pharmaceutical list was 10 October 2023. Accordingly, his application for
an extension of time, under Regulation 8(5) required to be made no later than 13 January
2024
[AB1]
. As Mr Manson did not make his application under regulation 8(5) until
12 February 2024, it was out of time and required to be refused by the Board.
[17]
The Board had no express power under Regulation 8(5), or any other provision, to
grant late applications. Nor did it have any implied statutory power to do so. Such a
discretionary power could not be implied into the 2009 Regulations. Variation of the
periods of time specified by Regulation 8(4) was not incidental or consequential upon the
exercise of any power conferred by the Regulations. Rather, any such variation would
expressly contradict the clear and unambiguous provisions of Regulations 8(4) and 8(5). A
13
power or discretion could not be implied into legislation when it would contradict the
express provisions thereof.
[18]
As there had been no lawful extension of the initial period for lodging the Form B
and as Mr Manson had failed to lodge his Form B within that initial period, the Board was
required to remove his name, in respect of the premises, from its provisional pharmaceutical
list in terms of Regulation 8(6). The Board had no discretion in this matter. The terms of the
Regulation were mandatory.
[19]
There were no grounds upon which the court could exercise an equitable discretion
to decline to grant the orders sought by the petitioner. The terms of the 2009 Regulations
made it clear that strict compliance with the time limits specified in Regulations 8(4) and 8(5)
was required. The Regulations also specified the consequences of failing to comply with
those time limits. Regulation 8(6) expressly stated that where an applicant whose name was
included in the provisional pharmaceutical list had not submitted Form B in accordance
with Regulations 8(4) and 8(5), his name fell to be removed from the provisional
pharmaceutical list. No discretion, equitable or otherwise, enabling a different outcome was
conferred. As Regulation 8(6) expressly stated the consequences for failing to comply with
the time limits specified by Regulations 8(4) and 8(5) of the 2009 Regulations, it was not
open to the court to excuse Mr Manson's failure to comply with them. To do so would be
contrary to the legislative intention of those statutory provisions. Reference was made to
proposition that no amount of purposive interpretation could entitle the court to disregard
the plain and unambiguous terms of legislation. Where the consequence of a failure to do
something within a set time was ineluctably spelled out by the relevant legislation, that
consequence could not be avoided by relying on authorities such as R v Soneji [2005] UKHL 14
legislation was silent as to the consequences of failure to comply with a time-limit, and
where the intended consequences therefore had to be inferred from the underlying purpose
of the legislation. This case was fundamentally different from the situation there addressed.
[20]
If the court granted the orders sought by the petitioner, the Board would not have a
live application before it for inclusion on the pharmaceutical list by Mr Manson, as his
application had already been determined by adding his name, in respect of the premises, to
its provisional pharmaceutical list. An application could only be determined once, not more
than once on differing statutory bases: see, e.g. R (Piffs Elm Ltd) v Commission for Local
[106]; and Turning Point Scotland v Perry UKEATS/0049/11/BI at [19], [27], [37] and [46]. If
Parliament had conferred a function on a body, the provision conferring that power did not
confer, by implication, on that body a power to rescind or revoke an earlier exercise of that
function.
[21]
The petitioner was not seeking, and did not require to seek, reduction of the Board's
decision to admit Mr Manson to the provisional pharmaceutical list, or of the Form D which
notified that decision to him, only of the extension of the date stated by Mr Manson on his
Form A and what had followed thereon. Accordingly, having determined the application
under Regulation 8(2) and having issued a Form D under Regulation 8(3), it would not be
competent nor lawful for the Board to proceed to add Mr Manson's name directly to the
substantive pharmaceutical list. If he wished to be included in that list in respect of the
Premises it would be necessary for him to make a new application under Regulation 5(10).
Accordingly, granting the orders sought would have practical consequences and a practical
effect. It did not matter that, by acting differently, as for example by delaying the issue of
15
the Form D to Mr Manson by 2 months or so, the Board might lawfully have achieved the
same result as it thought it had achieved by altering the date for the provision of services
stated in the Form A; the question was the lawfulness of what had actually happened, not
what might or could have happened: Galbraith Trawlers Ltd v Advocate General for Scotland
[2024] CSIH 1, 2024 SC 255, 2024 SLT 43 at [42]. Similarly, while it was accepted that, in
practice, if an applicant did not provide a date by which he undertook to provide services in
his Form A, or if he provided a specific date which was then overtaken by events such as
had occurred in the present case, Health Boards would treat the Form A as having offered to
provide services from 6 months after the date of admission to the provisional
pharmaceutical list, being the default period provided for by Regulation 8(4)(a), but the
petitioner did not necessarily accept the legality of that practice.
[22]
It was not accepted that a fresh application by Mr Manson for admission to the
substantive pharmaceutical list would inevitably be granted. There would need to be a
consultation exercise and a consideration of the relevant circumstances as they stood now,
not as they stood in 2021.
Submissions for the Respondent
[23]
On behalf of the Board, senior counsel invited the court to affirm the lawfulness of its
impugned decisions and to refuse the petition. If necessary, the court should exercise its
equitable jurisdiction to refuse to reduce those decisions.
[24]
Public bodies had the power to do anything which might fairly be regarded as
incidental to, or consequential upon, those things which the legislature had expressly
Corporation v Flint 1966 SC 108 at 119, 1966 SLT 183 at 188. Minor amendments to an
16
application which did not render the amended application in substance different from the
original application could be lawful even if the decision-maker did not have the express
power to allow amendments: Walker v Aberdeen City Council 1998 SLT 427 at 431F, 1997
SCLR 425 at 434D.
[25]
Mere failure to comply with a procedural requirement, such as a time limit or the use
of a prescribed form, did not in and of itself vitiate a decision: Seal v Chief Constable of South
with statutory time limits, the emphasis ought to be on the consequences of non-compliance
with the statutory requirements, and whether Parliament could fairly be taken to have
intended that non-compliance rendered the decision totally invalid: Soneji at [23]; London &
Clydeside Estates Ltd v Aberdeen District Council 1980 SC (HL) 1 at 30 31, 1980 SLT 81 at 85
86; Glasgow City Council v Upper Tribunal [2025] CSIH 2, 2025 SLT 112 at [31], [34]. Whether
an irregularity ought to be excused by the court depended on the nature of the irregularity
at 40.
[26]
Even where a court was satisfied that an administrative body might have erred in
reaching a decision, the jurisdiction to grant reduction was inherently discretionary and the
court would not in general grant reduction if to do so would have no practical effect:
King v East Ayrshire Council 1998 SC 182 at 194, 1998 SLT 1287 at 1294F; London & Clydeside
Estates at 1980 SC (HL) 31, 1980 SLT at 86. In exercising its discretion, the court required to
consider the public and private interests of impacted parties: Walton v Scottish Ministers
material, in that its absence would inevitably have led to the same result, a court should
17
choose not to reduce the relevant decision: Balajigari v Secretary of State for the Home
[27]
It was necessary to approach the 2009 Regulations in context. The Board had various
obligations in terms of section 27 of the National Health Service (Scotland) Act 1978,
including a duty to ensure that arrangements were made for the provision to persons in its
territory of drugs and medicines. The 2009 Regulations were the procedural mechanism by
which the Board fulfilled that duty, and fell to be read and interpreted in that light.
Compliance with the Regulations was not an end or a good in itself; rather, they provided a
scheme by which arrangements to provide medicines could be secured. The very point of
the Regulations was to ensure access to medicines and meet patient needs. The construction
of the Regulations which the petitioner put forward was inimical to the whole purpose of
the 1978 Act. They ought not to be read or interpreted in a manner which undermined
patient need.
[28]
Regulation 8 dealt with the provisional pharmaceutical list. The definition of the
"provisional date" in Regulation 8(1) was of crucial importance, since Regulation 8(4)
required Form B to be submitted "not later than either (a) the date six months after the
date of inclusion, or (b) if earlier, the provisional date." The initial decision which was
challenged was the decision of 9 October 2023 to allow Mr Manson 6 months to submit the
Form B, instead of the three to four months from his inclusion on the provisional
pharmaceutical list which he had stated on his Form A. On 9 October 2023 Ms Dickson of
the Board had spoken to Mr Manson, who had indicated that, due to the passage of time, he
would no longer be able to open the proposed pharmacy within 3 to 4 months, and had
requested a longer period of time. He had stated that he might need up to 6 months because
18
of difficulties which had emerged with the conversion of the intended premises. The Board
had agreed to accept the period which was being put forward by Mr Manson as what would
be required in the changed circumstances since the submission of his Form A.
[29]
The "provisional date" was not, per Regulation 8(1), defined by reference to what
was said in Form A. That Regulation stated in terms that the provisional date was the date
upon which the applicant undertook to provide services from the premises specified in
Form A, but the date itself was not tied to the Form A. Form A was merely the application;
Form D determined the date by which services should be provided, subject to the possibility
of extension in terms of Regulation 8(5). On 9 October 2023, Mr Manson had undertaken to
provide pharmaceutical services from the premises specified in the Form A within 6 months.
That was the provisional date, which was also the date 6 months from the date of his
inclusion on the provisional pharmaceutical list. In terms of Regulation 8(4), he thus had
until 10 April 2024 to submit his Form B.
[30]
Even if the provisional date was that set out in the Form A, that would still not
provide any basis for the court to grant the orders sought by the petitioner. The Board had
incidental powers to do certain things or take certain steps in respect of the application
process, even where it had not been granted those powers expressly in terms of the
Regulations. There was no express power to consider and allow applicants to amend their
Form A, for example, but the application system would be wholly unworkable if a fresh
Form A had to be submitted if there was even a very minor change to the details set out in
that form. Allowing applicants to amend their application forms to account for such minor
matters would be entirely incidental to and consequential upon the fundamental purpose of
the Regulations, particularly if the alternative was for them to submit a fresh application and
to have to repeat an involved consultative exercise. Excessive and arid technicality ought
19
not to stand in the way of the provision of necessary services to patients. To the extent that
the provisional date was dependent on what an applicant said in the Form A, the form could
in that respect be amended. An applicant could request to change the information set out in
the form, and the Board could consider and grant such an application. As in the planning
context (Walker, supra) the touchstone for whether a proposed amendment was within the
scope of the Board's incidental powers was whether it altered the substance of the
application. If not, considering and granting the amendment was incidental to the overall
system of considering applications and ensuring that persons in the Board's area were able
to access medicines. In the present case, on 9 October 2023 Mr Manson had requested
additional time. He had said that he would need up to 6 months. The Board granted him
that 6 months. He applied to amend his Form A, and that application was granted by the
Board. That did not entail a change to the substance of the application. The persons who
would be providing services and the premises from which those services would be provided
remained the same. The successful amendment application resulted in the issue of the
Form D, which granted Mr Manson until 10 April 2024 to lodge his Form B. That was quite
lawful.
[31]
The petitioner's argument in relation to the extension of time in terms of
Regulation 8(5) rested entirely on the proposition that the "provisional date" was, at most,
4 months from 10 October 2023, and that the 12 February 2024 application for an extension
was thus out of time. The challenge to that decision therefore stood or fell with the
challenge to the earlier decision. If, as the Board contended, the provisional date was
6 months from 10 October 2023, the extension application on 12 February 2024 was in time.
[32]
In any event, reduction of the impugned decisions ought not to be ordered even if
they were not in full compliance with the Regulations. Mere non-compliance with a
20
procedural time limit did not, in and of itself, automatically vitiate a decision; Soneji at [14]
[17], [23] [24], [65] and [67]; London & Clydeside Estates at 30 31. The law focused on the
consequences of non-compliance. The question was whether Parliament intended that non-
compliance with a relevant requirement ought to lead to the matter being held to be totally
invalid. The Regulations were not an end in themselves. They provided a structured
framework to ensure that arrangements could be made to enable patients to access
medicines and allow the Board to fulfil its statutory obligations. At their core, the
Regulations were concerned with patients being able to access services. Parliament could
not have intended that a failure to comply with every technicality of the Regulations,
however minor or tangential to the provision of services to patients, would necessarily lead
to the total invalidity of essential applications which would provide real benefits to patients.
Insofar as there had been a delay between Mr Manson making his application and the
application being granted, that delay was largely due to the repeated and unsuccessful
challenges brought by the petitioner. It might be contended that compliance with the time
limits set out in the Regulations ensured the timeous delivery of services and so the court
ought to treat compliance with deadlines as a serious matter. However, that argument did
not lie in the petitioner's mouth. It could not delay matters for more than 2 years through
appeals to the National Appeal Panel and a petition to this court, and then insist that the
two-month difference between "3 4 months" and 6 months was of material significance.
Following on from the earlier judicial review brought by the petitioner, it was settled that
the relevant authorities had concluded, and were entitled to conclude, that pharmaceutical
services in Monkton were presently inadequate and that the pharmacy Mr Manson
proposed to open was necessary to remedy that inadequacy. The petitioner had not offered
to prove that the situation on the ground in Monkton had changed in any respect. The
21
opening of Mr Manson's pharmacy would therefore be a direct and immediate good for the
people of Monkton. He had submitted his Form B to the Board, which understood that he
had been in a position to open his pharmacy from November 2024. It could not have been
the intention of Parliament that, in such circumstances, his application would be totally
invalid. It would be farcical for something that was clearly and indisputably in the public
interest to be rendered wholly void because of a relatively trivial point of procedure,
particularly where the underlying point of the Regulations, namely ensuring that patients
were given adequate pharmaceutical services, had been achieved. In accordance with the
approach set out in Soneji, the court ought to refuse to reduce the relevant decisions.
[33]
Furthermore, reduction was a discretionary remedy. The court was not bound to
reduce the decisions complained of merely because there had been non-compliance with a
time limit. In the present case, there was a clear and obvious explanation for the extension
of time. The delays in the present case occurred in good faith. Mr Manson was stymied
from opening the pharmacy as planned due to the petitioner's actions. There was no
deliberate or malicious attempt to circumvent the requirements set out in the Regulations.
The delay was not lengthy and was understandable given the delays associated with the
previous unsuccessful litigation by the petitioner. No material prejudice had been suffered
by the petitioner. However, there would be material prejudice to the general public if
Mr Manson was not permitted to open the proposed pharmacy given the inadequate
provision of pharmaceutical services in the local area. There would also be material
prejudice to Mr Manson. Those factors indicated that the decisions should not be reduced:
Walton.
[34]
In any event, the orders of reduction sought by the petitioner would have no
practical effect and so ought not to be granted. The operative decision which the petitioner
22
sought to reduce was the decision of 9 October 2023. In effect, the Petitioner was seeking to
reduce the Form D issued on 10 October 2023. Without reduction of the Form D, the
provisional date remained, according to its terms, 10 April 2024 and the petitioner could not
succeed. The Petitioner's challenge was predicated on the Form D being reduced. The
petitioner did not (and could not) seek to reduce Mr Manson's application, nor did or could
it challenge the Board's substantive assessment of that application. That had been the
subject of the previous unsuccessful judicial review proceedings in this court. The legal
effect of the impugned decisions being reduced would be that they were deemed in law
never to have existed, and Mr Manson would be deemed never to have been placed on the
provisional pharmaceutical list. The Board would have before it in such circumstances an
application in respect of which it had, legally speaking, taken no action. It would in such
circumstances be entitled to issue another Form D, in effect resetting the clock for the
submission of a Form B, or it could add Mr Manson directly to the substantive
pharmaceutical list.
[35]
Finally, any error on the part of the Board was immaterial. The petitioner contended
that the 12 February 2024 extension application ought to have been made at the latest in
January 2024. However, it did not and could not suggest that, had the application been
made at that point, matters would have turned out any differently. Had Mr Manson applied
for an extension in terms of Regulation 8(5) exactly when the petitioner suggested he ought
to have done, he would have obtained an extension. On the petitioner's analysis, that would
have been legally unobjectionable. The end result would inevitably have been the same.
[36]
If a fresh application was made by Mr Manson, it was inevitable that it would be
granted as there was inadequate pharmaceutical service in the local area. Nothing had
changed on the ground since the decision of the Pharmacy Practices Committee, which the
23
petitioner had unsuccessfully challenged by way of judicial review. Reduction, and a
requirement for a new application, would thus be an entirely futile act.
Decision
[37]
The petitioner's case fails because it posits, and depends upon, a necessary link
between the date which an applicant for inclusion on the pharmaceutical list is required to
provide on Form A and the "provisional date" for the commencement of the provision of
services stated on the provisional pharmaceutical list, whereas the terms of the Regulations
do not support the existence of any such link.
[38]
Regulation 5(2) requires an applicant who wishes to be included on a Board's
pharmaceutical list to fill in the appropriate version of Form A provided for in Schedule 2 to
the Regulations. Mr Manson filled in Form A(1), which as is undisputed was the
appropriate version of the form for his circumstances. Regulation 5(2C)(f) requires an
applicant filling in Form A to state the date by which he intends (emphasis added) to
commence the provision of the pharmaceutical services in question. Form A itself similarly
asks the applicant to answer the question "State the date you intend to commence the
provision of the services detailed above". An applicant is not asked, at the stage of
completing Form A, to commit himself to providing services on or by any particular date;
rather, he is simply asked what his intentions are in that regard at the point of filling in the
form. Once Form A is completed and submitted, a process of assessment of the application
is undertaken in terms of Regulation 5(10) and Schedule 3 to the Regulations. Completion of
that process is likely to take at least a little time; occasionally, as here, determination of the
application may have to be postponed for a very long time indeed.
24
[39]
Regulation 8, dealing with admission to the provisional pharmaceutical list, uses
subtly but significantly different language. The submissions on behalf of the petitioner
consistently and incorrectly elide that distinction. Regulation 8(1) provides that the
provisional pharmaceutical list must state the date (called the "provisional date") from
which an applicant undertakes (not "intends") to provide pharmaceutical services at the
premises specified in his application. Evidently, when the point has come for an applicant
to be admitted to the provisional pharmaceutical list, the timescales for the provision of
services may have changed from how matters stood when Form A was completed. Any
necessary conversion or fitting-out works at the premises may have been capable of
acceleration, or they may have encountered delays. Likewise, staff recruitment may have
gone well or badly. Alternatively, things may have remained just as they were when the
Form A was completed. Whatever, it is at the point of admission to the provisional
pharmaceutical list that an applicant is asked for the first time, in accordance with the
regulatory scheme, to commit to a date by which he will commence the provision of the
anticipated services. That date has no necessary connection to the date he stated as
representing his intention as to such commencement in his Form A. When in the present
case the Board contacted Mr Manson at the point when it was ready to admit him to the
provisional pharmaceutical list and asked him for the date by which he would be able to
open (subject to the possibility of an extension of time in accordance with Regulation 8(5))
and entered that date on the Form D it issued to him and on the provisional pharmaceutical
list, it was doing exactly what the regulatory scheme required. I did not find it necessary or
helpful to have regard to the overarching purpose of the Regulations or the enabling statute
in reaching that conclusion. Their purpose is plainly to achieve the provision of
pharmaceutical services to the people of Scotland, but it is to do so in compliance with the
25
devised scheme. What exactly the scheme requires or permits is a question which in the first
instance falls to be answered, if possible, by reference to the words used in the Regulations
rather than to any more removed or oblique consideration. The question which divides the
parties in the present case is amply capable of being answered by a straightforward analysis
of what the Regulations do and do not say.
[40]
Whatever date is entered on the provisional pharmaceutical list as the "provisional
date", the applicant is obliged in terms of Regulation 8(4) to submit his Form B (being the
intended gateway for his translation from the provisional to the substantive pharmaceutical
list) as soon as reasonably practicable after his date of inclusion on the provisional list, with
a long stop for that submission requiring to take place by 6 months from the date of
inclusion, or by the provisional date if that is sooner (all subject to the extension possibility
offered by Regulation 8(5)). There is, accordingly, no absolute legal bar, but no practical
point, to an applicant attempting in the first instance to have the provisional date fixed for
more than 6 months from the date of inclusion on the provisional list, since any such date
would have no effect in determining the due date for the submission of his Form B. A
Health Board would also probably be unlikely to agree to admit an applicant to the
provisional list if he was unwilling to commit to opening his pharmacy within 6 months of
such admission.
[41]
It follows that what happened in October 2023 in the present case was entirely
unexceptionable, and that the statement of 10 April 2024 as the "provisional date" in the
Form D issued by the Board and in the provisional list was quite lawful. The petitioner's
attack on the subsequent Regulation 8(5) extension granted by the Board is entirely
dependent on the proposition that Mr Manson's application for that extension came too late,
because the "provisional date" ought to have been 10 February, rather than 10 April 2024.
26
Since that proposition is incorrect, and no separate challenge to the grant of the extension is
stated, that was also a lawful decision by the Board.
[42]
I appreciate that the Board appears to have considered that the arrangement it made
with Mr Manson in October 2023 involved an amendment of his Form A. The affidavit
provided to the court by the Board's Ms Dickson states that, after she told Mr Manson about
the outcome of the judicial review proceedings which concluded in that month, he told her
that he had concerns about when he could open his pharmacy, that the timescale he had
provided in his Form A was no longer realistic, and that it could take up to 6 months or
longer due to the delays which had been experienced. She advised him that Regulation 8(4)
provided for a default maximum period for an applicant to be on the provisional
pharmaceutical list of 6 months, with the opportunity to extend that period by a further
period of up to 9 months if the circumstances in Regulation 8(5) applied. He told her that he
considered that he would need at least the default 6-month period before being in a position
to commence the provision of services. She relayed that conversation to the Board's
responsible Primary Care Manager, who considered Mr Manson's request and agreed that,
in light of the lengthy pause in the progress of his application due to the legal challenges
and the difficulties he envisaged in recommencing activities following the elapse of a period
of over two years, his Form A would be amended to state "within six months of a successful
result". However, what the Board thought it was doing and the true legal analysis of what it
did need not be the same, and it is the latter that governs the legal consequences of what
occurred. What Ms Dickson describes is a process of certioration of when Mr Manson
would be able to open his pharmacy after the conclusion of the lengthy legal processes to
which his application had been subject, and the consequential entering of the 6-month
period which had been discussed onto the Form D and the provisional pharmaceutical list as
27
the "provisional date". That did not involve any alteration of the terms of the Form A which
he had submitted so long previously and which simply indicated his intention at that point,
and it matters not that the Board apparently thought that it did.
[43]
However one characterises the actions of the Board, they certainly did not amount to
a "unilateral" decision to do anything, as the petitioner maintains. Mr Manson was clearly
involved in and agreeable to what was done. It is not obvious to me who else the petitioner
claims should have been involved in the settlement of the provisional date.
[44]
Even if it is correct to describe what happened as involving an amendment of
Mr Manson's Form A (and I stress that I do not think that it is) then such amendment would
in my view have fallen within the implicit power of a public body to do that which falls
fairly be regarded as merely incidental to, or consequential upon, the express powers
conferred upon it. That would encompass changes to a Form A which, to adopt the criterion
used in Walker v Aberdeen City Council, did not render it in substance different from that
originally submitted. Since Mr Manson could have submitted a time period of 6 months
from his inclusion on the provisional list in his Form A from the outset without in any way
falling foul of the scheme figured by the Regulations for applications to join that list, it seems
apt to characterise an amendment of the sort being figured here as insubstantial.
[45]
Given the conclusions I have reached on the principal issue between the parties, it is
unnecessary (and in some instances inutile or even impossible) to determine the substantial
number of interesting questions which would have arisen had I found that the Board's
actions were not in compliance with the applicable regulatory requirements. However, it
may (or may not) be helpful or of interest to some at least for me to indicate very briefly
what my views on one or two of those questions would have been had they indeed arisen
for decision.
28
[46]
Firstly, I accept the petitioner's submission that, if Mr Manson had not submitted his
Form B in accordance with the timescales envisaged by Regulations 8(4) and (5), the
inevitable consequence of that would have been the removal of his name from the
provisional pharmaceutical list in accordance with the provisions of Regulation 8(6). To that
extent the case is one more akin to Shahid than to Soneji; the court could not properly have
decided not to apply the clear consequence provided for by the regulatory scheme in the
event of a failure to comply with the requirements of Regulations 8(4) and (5).
[47]
On a related point, I also accept that, once Mr Manson's application had been
determined by his admission to the provisional list, it could not so long as that
determination remained valid be redetermined, as by way of his direct admission to the
substantive list. The only way to move off the provisional list and onto the substantive list is
by the successful submission of Form B. Had his name been removed from the provisional
list in consequence of a failure to comply with Regulations 8(4) and (5), he would have
required to submit a fresh application, with all that that entails, to be further admitted to
either the provisional or substantive lists.
[48]
I also accept the petitioner's more minor submissions that it is necessary and
appropriate to determine the lawfulness of what in fact happened rather than what might
have happened, and that, if Mr Manson had had to make an entirely fresh application to be
admitted to the pharmaceutical list, the outcome of any such application could not properly
be said to be a foregone conclusion.
[49]
All of that said, however, the petitioner would have faced formidable difficulty in
obtaining a decree with any meaningful effect even if it had been able to demonstrate that
the Board had erred in law in the way claimed. It sought in the petition only to have the
(supposed) decisions in October 2023 to amend Mr Manson's Form A and to extend the
29
period for him to lodge his Form B, and the (entirely consequential) decision in
February 2024 in terms of Regulation 8(5) to extend that period by a further 9 months,
declared unlawful and reduced (together with other more minor remedies), but did not in
something of an attempt at a forensic sleight of hand seek to interfere in any way with the
Form D issued by the Board to him in terms of Regulation 8(3), nor the relative entry in the
provisional list itself. The Form D noted both the date of Mr Manson's inclusion in the
provisional list and the date by which he had undertaken (subject to the possibility of
extension in terms of Regulation 8(5)) in accordance with the arrangement to commence the
provision of services. The entry of his name on the provisional list was equally entirely
dependent on the arrangement of October 2023 having been made. It would be quite
unrealistic to reduce the decision so reflected in the form and the list, but not the form itself
and the relevant entry in the list. Given that the remedy of reduction is a discretionary one, I
would not have been prepared to grant reduction of the arrangement made in October 2023
without also reducing the Form D in which that arrangement was reflected, as well as the
relative entry in the provisional list. While acknowledging the abstract possibility of partial
reduction, in the circumstances of this case the arrangement, the terms of the Form D and
the entry on the provisional list were all so bound up together that the reduction of the
former and not the latter would not represent the sensible exercise of a discretionary power.
A refusal to reduce the decision of October 2023 would have left no basis for reduction of the
decision of February 2024, and the petitioner would at best have been granted declarators of
the invalidity of what had occurred but without any practical consequences flowing
therefrom. In particular, the Form D would have remained as it stands, the extension
allowed under Regulation (5) would have retained its validity, Mr Manson's entry on the
provisional list would have remained as it was made, his Form B would have been
30
submitted in time, and there would have been no difficulty with his transition in ordinary
course to the substantive list.
[50]
Similarly, had the petitioner also sought to have the Form D and the relative entry in
the provisional list reduced, the effect of such reduction would be that the clock would have
been turned back with the effect that there would in law have been no determination of
Mr Manson's application, with no obvious obstacle to the Board being free to determine it in
the circumstances as they now stand by admitting him either of new to the provisional list or
perhaps even directly to the substantive list. That would leave such decrees of reduction
without practical effect, which would in turn have militated, as explained in King, against
the court's discretion being exercised in favour of granting them in the first place. Likewise,
the public interest in the swift provision of needed pharmaceutical services in Monkton after
so much delay at law would have pointed in the same direction, and no private interest
engaged would have been capable of displacing that. In the event, however, the Board did
not err in law and these issues do not arise.
Conclusion
[51]
For the reasons stated, I shall sustain the Board's second and third pleas-in-law, repel
the petitioner's pleas, and refuse the prayer of the petition.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: https://www.bailii.org/scot/cases/ScotCS/2025/2025csoh33.html
