Lord ordinary rejects challenge to refused appeal against inclusion of new Paisley chemist on pharmaceutical list

About this case:

• Citation:
  [2025] CSOH 21
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

Abbey Chemists Ltd contested the decision to grant TC Trading (Scotland) Ltd’s application in respect of premises in Paisley, which followed a previous successful appeal resulting in reconsideration of the application, arguing that the application had not been considered anew. The respondent considered that the approach taken by the petitioners to whether the application had been fully reconsidered was unreasonable.

The petition was considered by Lord Lake, with M Linday KC appearing for the petitioner and J Bradley, lay representative, for TC Trading as the third respondent.

Unreasonably semantic approach

On 8 January 2023, TC Trading applied to the Pharmacy Practices Committee of the Greater Glasgow and Clyde Health Board for admission to the pharmaceutical list. After their application was granted, the petitioners successfully appealed to the National Appeal Panel against the decision. The matter returned to the PPC, which again decided to grant the application, leading to the refused appeal that formed the subject of the petition.

The petitioners contended that the NAP had failed to recognise that the PPC had not considered the application anew but instead provided further reasons in support of its original decision. It was submitted that the requirement to “reconsider” the decision required the affected parts of the decision to be made anew with the PPC addressing its minds to the merits of the application.

It was a matter of agreement that all of the content in the original decision formed part of the refreshed decision. The petitioner submitted that this indicated that the PPC had adhered to the old decision with some additional reasons, rather than truly reconsidering. In doing so they relied on the judgment of Fordham J in R (Moss) v Service Complaints Ombudsman of the Armed Forces (No. 3) (2024), where it was said that a further decision required to be a fair and reasonable one on the merits, although he recognised that some things may be expressed the same way in a new decision.

The respondent submitted that the petitioners had taken an approach which was unreasonably semantic and that terms such as “refreshed”, “revisited” and “reconsidered” would be regarded as equivalent by the PPC, which was not made up of lawyers. The PPC had done what was required of them, and the challenge was without merit.

Made decision afresh

In his decision, Lord Lake began by saying of the reconsideration process: “Paragraph 15.9 of the minutes records that the PPC revisited the evidence to familiarise themselves with the case and that they ‘explored their original reasoning’. An exploration of the evidence indicates that this was more than a simple adoption of the earlier decision. In addition, the committee did not move straight from that examination of the earlier decision to the conclusion of their reasoning.”

He continued: “The committee members applied their minds to the appropriate test and made a decision afresh as to the adequacy of existing provision. The decision of the NAP had required them to consider the weight that they placed on the joint consultation exercise and it is clear that they did so. They also considered the information about provision of services from pharmacists located outside the neighbourhood. Viewed in context, paragraph 15.9 appears to mean that the reasoning of the original decision has been reconsidered and the conclusion reached that it remained valid.”

Assessing whether the decision of the NAP was irrational or inadequately reasoned, Lord Lake said: “The petitioners contended that the PPC erred and had conflated customer satisfaction with the adequacy of provision, that it was said that the provision of 24-hour delivery technology had resulted in the service provision being inadequate and that the NAP has erred in not allowing an appeal on this ground. The PPC minutes do not disclose any such conflation. Paragraph 15.12 noted that steps had been taken by the petitioners to increase dispensing volume but the PPC considered that the effect of that had been to sacrifice other areas of their business model.”

He concluded: “The panel emphasised that the conclusions reached by the PPC and the standard or weight to be attached to the information were matters for the PPC and that the challenge by the petitioners was in essence that they disagreed with the conclusions of the PPC. That was regarded by the panel as not being a valid ground of appeal. On the basis of the foregoing, not only was that decision open to them, it was a correct decision.”

The pleas-in-law for the petitioner were therefore repelled, and the petition refused.