• Filtering out obviously unmeritorious appeals (summary dismissal); and
• Remitting inadequately reasoned or procedurally defective decisions to the PPC for reconsideration ([19]).

After these two groups of appeals have been dealt with, all remaining appeals—that is, appeals that:

• raise an arguable error of law under paragraph 5(2A); or
• raise other concerns which the Chair does not think can be cured simply by remit—

must be referred to a full Panel. The Chair has:

“no power whatsoever to determine an appeal while acting alone” ([19], emphasis added), apart from the power of summary dismissal.

Accordingly, when the Chair, in his 9 April 2025 decision, stated that the first three grounds of appeal “would not be upheld” ([16]), that language suggests a determination which the statutory framework does not permit him to make (except via summary dismissal, which he did not invoke). If he had not found the PPC inquorate and thus had no basis for remit, he would have been obliged to convene the full Panel, unless he considered the appeal frivolous or disclosing no reasonable grounds ([20]).

Lord Harrower therefore concludes:

• the Chair’s statements rejecting grounds 1–3 could not amount to a lawful disposal of those grounds; and
• they should instead be seen as advisory remarks made in the context of giving guidance to the PPC on remit ([21]).

From a rule-of-law perspective, this is significant. It avoids the situation in which an individual, non-medically-experienced Chair could, as a matter of practice, unilaterally decide complex appeals without the benefit of the pharmacist and lay input that the Regulations insist upon.

6.2 Advice on remit: what the Chair may properly say

The 2009 Regulations not only authorise the Chair to remit inadequately reasoned or procedurally defective decisions; they also impose a duty on the Chair to give the Board “such advice … as appears to him to be desirable” with a view to remedying the defect or failure that led to the remit (Schedule 3, para 5(7); [8], [21]).

Lord Harrower recognises that, in giving such advice:

• the Chair will often have to analyse the appellant’s complaint; and
• explain why he considers that complaint to have merit—at least to the extent of disclosing a 5(2B) circumstance ([21]).

He does not criticise the Chair for providing structured guidance to the PPC. However, he emphasises the limit:

• The Chair should not be understood as making a ruling on any grounds of appeal when remitting.
• It is “enough” to state that he is of the opinion that one or more of the 5(2B) circumstances has occurred, and then give whatever advice may be helpful ([21]).

That distinction neatly resolves the apparent tension between:

• the obligation to give advice; and
• the prohibition on the Chair usurping the role of the full Panel.

6.3 Decisions vs opinions: why “finality” does not bar re‑litigation of issues

Schedule 3, paragraph 5(5) provides that the Chair’s decision to:

• dismiss an appeal; or
• remit it to the PPC

is “final”. The petitioner argued that this, coupled with the Chair’s explicit rejection of grounds 1–3, effectively turned his remarks into a binding decision, raising concerns of res judicata or public-law finality ([17]).

Lord Harrower draws a critical distinction between:

• the Chair’s decision to remit; and
• the Chair’s underlying opinion about the merits of particular grounds of appeal ([22]).

It is only the decision to remit or dismiss that is final; the Chair’s opinion about whether any of the 5(2B) circumstances exists, or whether a legal test has been properly applied, does not preclude the full Panel from reaching a different view when properly seized of the appeal ([22]).

Thus:

• Where the Chair does not remit because he is not of the opinion that 5(2B) circumstances are present, he must still convene the Panel; and
• There is nothing in the Regulations preventing the Panel from disagreeing with the Chair’s earlier opinion on whether those circumstances arise ([22]).

This answers directly the petitioner’s concern that it would be pointless to pursue another appeal: the Panel is not bound by the Chair’s earlier comments.

6.4 The proper understanding of paragraph 5(2A) vs 5(2B)

A key aspect of the judgment is the court’s careful analysis of the scope of the statutory grounds of appeal.

At paragraph 3.1 of his decision, the Chair described the right of appeal as limited to “errors of law in terms of the application of the Regulations” and then immediately set out the three paragraph 5(2B) circumstances ([14]). However, he omitted express reference to the distinct right of appeal where “the Board has erred in law in its application of the provisions of these Regulations” in paragraph 5(2A).

Lord Harrower notes that this incomplete formulation:

• “may go some way to explaining” the Chair’s approach to the petitioner’s second ground ([26]); and
• appears to have led the Chair to shoehorn what was in substance an error-of-law complaint into the paragraph 5(2B) framework ([26]).

Ground 2 was clearly about whether the PPC had correctly applied the adequacy test under regulation 5(10) in light of Lloyd’s Pharmacy ([26]). That is, on any view, a question of legal application, not simply a complaint about the adequacy of reasons or the explanation of the law.

The Chair’s attempt to characterise this ground as:

• a “procedural defect” under 5(2B)(a); or
• a failure to explain the application of the Regulations under 5(2B)(c);

was, in Lord Harrower’s analysis, misconceived ([27]).

He stresses that:

• Paragraph 5(2B)(a) is about the procedure by which the application was considered—not about whether the PPC reached the correct substantive conclusion.
• Paragraph 5(2B)(c) concerns a failure to explain the application of the Regulations to the facts—not a failure to apply the law correctly ([27]).

By contrast, ground 2 directly challenged the PPC’s application of the legal test and thus fell squarely within 5(2A) as an error of law. Such an error:

• cannot be cured by remit, because a remit only allows the PPC to reconsider and better explain or correct procedural defects;
• requires a substantive determination by the full Panel; and
• should, therefore, either be dismissed summarily as unarguable or be referred to the Panel ([27]).

This analysis has two important consequences:

1. The Chair’s 9 April 2025 reasoning is premised on a misunderstanding of the second ground’s true character, and thus cannot bind the Chair or the Panel when the same ground is raised again ([27]).
2. The petitioner therefore still has an effective statutory remedy in the form of its new appeal, reinforcing the conclusion that judicial review is premature ([27]).

6.5 Exhaustion of statutory remedies and prematurity of judicial review

The court reiterates a longstanding principle of Scottish public law:

It is incompetent, save in exceptional circumstances, to seek judicial review where an effective statutory remedy is available and has not been exhausted ([24]).

That principle is supported by authorities including:

• British Railways Board v Glasgow Corporation 1976 SC 224;
• McCue v Glasgow City Council 2014 SLT 891; and
• Bridgeport Estates Ltd v Highland Council [2025] CSOH 69 ([24]).

The petitioner sought to bring itself within an exception by arguing that:

• a further appeal to the Panel would be futile because the same Chair would inevitably reject the same grounds; and
• it risked facing arguments that the earlier decision had created a form of res judicata or was otherwise binding as a matter of good administration ([17]).

The petitioner cited Tarmac Econowaste Ltd 1991 SLT 77, R (Gallagher Group Ltd) v Competition and Markets Authority [2019] AC 96 and Johnston v GA [2025] CSIH 18, to support the proposition that a remedy that is purely theoretical or incapable of providing practical redress need not be exhausted ([17]).

Lord Harrower responds to this line of argument by:

• Clarifying that the Chair has no power to determine grounds 1–3 substantively; any such attempt would be incompetent ([20]–[23]);
• Explaining that the Chair’s opinions do not bind the Panel, and the Panel is free to reach its own view when properly seized of an appeal ([22]); and
• Pointing out that, as regards ground 2 in particular, the Chair’s earlier analysis was based on a misunderstanding, such that it cannot sensibly be treated as determinative ([26]–[27]).

Once the correct scope of the Chair’s powers is appreciated, the petitioner’s futility argument collapses:

• The new appeal is not foredoomed to failure;
• The Panel is required to consider the appeal (unless the Chair summarily dismisses it as frivolous or disclosing no reasonable grounds); and
• There is no legitimate basis for treating the earlier Chair’s decision as creating res judicata or other bar.

As no exceptional circumstances had been pled or established, the general rule prevailed: judicial review is incompetent while an effective statutory remedy remains unexhausted ([24]). Consequently, permission to proceed was refused.

6.6 Time-bar and discretionary extension

The Board also argued that the petition was presented out of time, given that:

• the Chair’s decision was emailed to the petitioner on 10 April 2025; but
• the petition was not lodged until 8 September 2025 ([28]).

The petitioner maintained that it did not receive the email and noted that the Board had failed to publish the Chair’s decision on its website in accordance with paragraph 15(2)(b) of Schedule 4 ([28]). There was some uncertainty as to whether an email quarantined by the petitioner’s security systems would count as “received”. The petitioner’s director also admitted that she had not checked the website because she expected a direct notification ([28]).

In the end, Lord Harrower held that:

• the petitioner appears only to have become aware of the decision on 29 July 2025 when the Board’s fresh determination issued;
• a copy was supplied to its agents shortly after 29 August 2025; and
• given the short period of delay, he would have been minded to extend the time limit under s 27A(1)(b) of the 1988 Act ([28]).

This discussion is strictly obiter (since permission was refused on prematurity), but it signals a pragmatic and context-sensitive approach to the three-month time limit in judicial review.

7. Precedents and Authorities Cited

7.1 Lloyd’s Pharmacy Ltd v National Appeal Panel 2004 SC 703

This case is the leading authority on the interpretation of regulation 5(10)’s “adequacy test”. It establishes that the statutory decision-maker must adopt a two-stage approach:

1. First, assess whether existing pharmaceutical services in the neighbourhood are adequate.
2. If they are not, then consider whether granting the new application is necessary or desirable to secure adequacy ([6]).

Lord Harrower cites Lloyd’s both when describing the substantive test ([6], [15]) and in analysing ground 2, which alleged that the PPC had failed to apply this two-stage structure properly ([11], [26]). The case underscores that the adequacy assessment is a legal question grounded in the Regulations, thereby supporting his classification of ground 2 as a paragraph 5(2A) error of law.

7.2 The “alternative remedy” line: British Railways Board, McCue, Bridgeport Estates

The principle that judicial review is residual and exceptional where a statutory appeal exists is long established. Lord Harrower relies on:

• British Railways Board v Glasgow Corporation 1976 SC 224;
• McCue v Glasgow City Council 2014 SLT 891; and
• Bridgeport Estates Ltd v Highland Council [2025] CSOH 69,

to confirm that, unless exceptional circumstances exist, a party must first use available statutory procedures before seeking judicial review ([24]). These authorities are deployed to frame the prematurity issue and to support refusal of permission.

7.3 Futility and finality: Tarmac Econowaste, R (Gallagher Group), Johnston v GA

The petitioner relied on:

• Tarmac Econowaste Ltd 1991 SLT 77;
• R (Gallagher Group Ltd) v Competition and Markets Authority [2019] AC 96; and
• Johnston v GA [2025] CSIH 18,

to argue that pursuing the statutory appeal would be futile and that the Chair’s decision may have created a form of finality or bar to re‑litigation ([17]). Although the judgment does not analyse these cases in depth, they serve as the backdrop for the petitioner’s contention that an ineffective remedy need not be exhausted.

Lord Harrower does not challenge that principle in the abstract. Instead, he undermines the premise: because the Chair’s role is merely gatekeeping and his comments are not binding, the statutory appeal is neither futile nor illusory ([22]–[23], [27]).

7.4 Recent “pharmacy appeals” judicial review cases

Lord Harrower notes that the 2009 Regulations “have recently provided fertile ground for judicial review proceedings” ([3]), citing:

• LP North Sixteen Ltd (t/a Dears Pharmacy) v National Appeal Panel [2025] CSOH 91, 2025 SLT 1182;
• Burns Pharmacy Ltd v Ayrshire and Arran Health Board [2025] CSOH 33, 2025 SLT 497;
• Abbey Chemists Ltd v National Appeal Panel [2025] CSOH 21;
• Community Pharmacy Scotland, Petitioner 2023 CSOH 65, 2023 SLT 1021; and
• Burns Pharmacy Ltd v Ayrshire and Arran Health Board [2023] CSOH 60.

While he does not discuss these decisions in detail, the reference indicates that:

• there has been a pattern of judicial scrutiny of how Boards and the Panel apply and interpret the 2009 Regulations; and
• this judgment is intended, in part, to provide clarity on the appeals structure to reduce unnecessary or premature recourse to judicial review ([3]).

8. Complex Concepts Explained in Simple Terms

8.1 Judicial review vs statutory appeal

• Statutory appeal: A procedure laid down in legislation (here, the 2009 Regulations) allowing a party aggrieved by a decision to challenge it before a specialist body (the National Appeal Panel). Appeals are usually limited to specific grounds defined in the statute.
• Judicial review: A separate process in the Court of Session that examines whether a decision-maker acted lawfully, reasonably, and fairly. It does not re-hear the case or substitute the court’s view on the merits, and is generally used only when no adequate alternative remedy exists.

8.2 “Exhaustion” and “prematurity”

• Exhaustion of remedies: Before turning to judicial review, a party is normally expected to use all available statutory rights of appeal. Only if those routes are unavailable, inadequate, or clearly ineffective can judicial review be used directly.
• Prematurity: A judicial review is “premature” if brought while a suitable statutory appeal is still available or pending. The court may refuse permission on that basis, as happened in this case ([24], [29]).

8.3 The National Appeal Panel and its Chair

• National Appeal Panel: A three-person specialist tribunal created by the 2009 Regulations to hear appeals from PPC decisions about inclusion in pharmaceutical lists. It includes a legal Chair, a pharmacist, and a lay member.
• Panel Chair (in this context): The legally qualified person who, at the initial stage, screens appeals to:
  • dismiss clearly unmeritorious cases;
  • remit flawed PPC decisions for reconsideration; or
  • convene the full Panel to hear the appeal.
  He or she is not entitled to decide the substantive merits alone, except by summary dismissal ([19]–[20]).

8.4 Quorum and quoracy

• A body is quorate when the minimum number of members required by its governing rules are present to validly transact business. A decision taken by an inquorate committee is typically procedurally invalid. In this case, the PPC’s earlier decision was remitted because it was not quorate ([16]).

8.5 The “adequacy test” in simple terms

• The law requires that a new pharmacy only be added if, without it, people in the neighbourhood would not have enough or sufficiently accessible pharmacy services.
• The Board/PPC must:
  1. Ask whether people already have adequate access to pharmacies; and, only if not,
  2. Ask whether the proposed new pharmacy is necessary or desirable to fix that inadequacy.
  This is the “two-stage” adequacy test from Lloyd’s Pharmacy ([6]).

8.6 Paragraphs 5(2A) and 5(2B): errors of law vs procedural or explanatory defects

• Paragraph 5(2A): Used when the appellant says the Board “got the law wrong” in applying the Regulations to the facts – e.g., misapplied the adequacy test.
• Paragraph 5(2B): Used when the appellant says there was a defect in procedure or in the reasoning process:
  • 5(2B)(a) – a procedural flaw (e.g., not hearing a party who should have been heard, or an inquorate committee);
  • 5(2B)(b) – failure to properly set out the facts and reasons in the written decision;
  • 5(2B)(c) – failure to explain how the law was applied to those facts.

In this case, ground 2 (misapplication of the adequacy test) is clearly a 5(2A) error of law, not merely a 5(2B) defect in explanation ([26]–[27]).

8.7 Res judicata and finality in public law

• Res judicata: A doctrine that prevents the same parties from re-litigating the same issue once it has been finally decided by a court (or, in some contexts, by a tribunal). In public law, strict res judicata may apply less rigidly, but principles of finality and good administration serve a similar function.
• In this case, the petitioner worried that the Chair’s earlier “rejection” of grounds would be treated as final and preclude re‑arguing them. Lord Harrower’s analysis shows this concern is misplaced, because the Chair’s procedural remit decision is what is “final”, not his non-binding opinions about those grounds ([22]–[23]).

9. Impact and Future Significance

9.1 Practical consequences for pharmacists and health boards

For pharmacy operators (both incumbents and applicants), the judgment brings greater clarity about:

• how and when they may challenge PPC decisions;
• what kinds of arguments belong under paragraph 5(2A) (errors of law) versus 5(2B) (procedural/ reasons defects); and
• the proper sequence: use the statutory appeal route first, only then consider judicial review if necessary.

Health Boards and PPCs are reminded that:

• they must produce clear, reasoned decisions adequately narrating the facts and explaining how the adequacy test and other provisions of the Regulations are applied;
• failures in reasoning will likely lead to remits and delay, rather than finality; and
• procedural lapses such as inquorate meetings are serious defects that can vitiate decisions.

9.2 Operational guidance for the National Appeal Panel

For the National Appeal Panel itself, the judgment amounts to structural guidance:

• The Chair must understand his or her role as gatekeeper only, not as a one-person appeal tribunal.
• When remitting a case, the Chair should:
  • state that he is of the opinion that one or more of the 5(2B) circumstances has occurred; and
  • offer advice to help the PPC remedy the identified failures;
  • but should avoid language suggesting that he is “upholding” or “rejecting” substantive grounds of appeal ([21]).
• Where an appeal alleges an error of law in the application of the adequacy test (or any other legal standard), that is prima facie a 5(2A) ground and:
  • cannot be resolved simply by remit; and
  • should be referred to a full Panel unless obviously without merit ([26]–[27]).

This clarification should reduce confusion and the risk of appeals “ping‑ponging” between PPC and Panel on an incorrect procedural footing.

9.3 Implications for judicial review caseload

The case is also significant at the permission stage of judicial review:

• It reinforces that the Court of Session will scrutinise the availability of statutory appeals and refuse permission where such remedies remain effective and unexhausted.
• Arguments that a statutory appeal is futile will be examined critically:
  • mere pessimism about the likely outcome is insufficient;
  • the legal powers of the appellate body, not its prior informal views, determine whether the remedy is “effective”.

Given the recent line of pharmaceutical services judicial review cases, this judgment may help stem the growth of premature challenges by redirecting parties back to the statutory machinery.

9.4 Wider public law significance

Beyond the pharmacy context, the decision illustrates two broader points of administrative law:

• Interpreting “finality” clauses narrowly: Language making a decision “final” will be construed in light of the statutory scheme. Here, “final” applies to the Chair’s procedural disposition (dismissal or remit), not to his non-binding views on merits ([22]).
• Separating advice from adjudication: Where a statute requires a decision-maker to provide “advice” or guidance, the courts will be vigilant to ensure that such advice does not morph into an improper, de facto adjudication outside the prescribed decision-making process ([21]).

10. Conclusion

Lord Harrower’s opinion in A D Healthcare Ltd delivers a clear and important clarification of the appeals architecture under the NHS (Pharmaceutical Services) (Scotland) Regulations 2009. The key messages may be summarised as follows:

• The Chair of the National Appeal Panel exercises a gatekeeping, not adjudicative, function. Apart from summary dismissal of plainly unmeritorious appeals, the Chair cannot determine the merits of grounds alone.
• When the Chair remits an appeal to the PPC because of procedural or reasoning defects, any statements about “upholding” or “rejecting” grounds are not binding determinations. They are advisory and must not be treated as conclusive.
• The statutory grounds of appeal under paragraph 5(2A) (error of law) and 5(2B) (specified procedural/reasoning defects) are distinct. Challenges to the application of the adequacy test under regulation 5(10), such as in ground 2 in this case, are properly paragraph 5(2A) errors of law, requiring determination by a full Panel, not mere remit.
• Judicial review remains a remedy of last resort. Where an effective statutory appeal remains unexhausted, and no exceptional circumstances are shown, a petition for judicial review will be refused as premature.

By refusing permission to proceed and at the same time giving structured guidance on the Chair’s proper role, the court seeks both to protect the integrity of the specialist appellate process and to provide clearer signposts for all actors—Boards, panels and pharmacies—in this specialised area of Scottish health law.