Case Overview

Citation: [2025] CSOH 91 (Court of Session, Outer House)

Judge: Lord Lake

Date: 26 September 2025

Parties:

• Petitioner: LP North Sixteen Ltd t/a Dears Pharmacy
• First Respondent: Chair of the National Appeals Panel (NAP) (no appearance)
• Second Respondent: NHS Lothian Health Board
• Third Respondent: TPB Partnership LLP (applicant to the pharmaceutical list)

Introduction

This judicial review arises from the contested inclusion of TPB Partnership LLP on the NHS Lothian pharmaceutical list under the National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009 (“the 2009 Regulations”). Dears Pharmacy, a competitor already on the list, opposed TPB’s application and challenged a National Appeals Panel (NAP) decision refusing their appeal from the Pharmaceutical Practices Committee (PPC). The litigation traces a complex procedural history: the PPC granted TPB’s application three times; the first two PPC decisions were successfully appealed to the NAP; the third NAP appeal was refused, leading to this petition.

The case presented three preliminary questions and one core substantive issue:

• Whether Dears Pharmacy had standing to appeal to the NAP as a person “mentioned in paragraph 1” of Schedule 3 when it was not on the list at the time of the original application, and whether a misnamed appeal notice invalidated the appeal.
• Whether the challenge was time-barred because the NAP’s approach allegedly crystallised in an earlier decision.
• Whether the NAP had fettered the PPC’s discretion on the admission of further evidence.
• Substantively, whether, upon a remittal for “reconsideration” under Schedule 3 paragraph 5(5)(b) of the 2009 Regulations, the PPC can/should hear new evidence and reassess the adequacy of pharmaceutical provision at the later date, or is confined to the issue(s) “infected” by the error identified by the NAP and to the evidential record already before it.

At the heart of the dispute lay the interaction between the statutory “reconsideration” mechanism and the practical reality of delay: the petitioner argued that the adequacy assessment must reflect current conditions and therefore necessitated receipt of up-to-date evidence; the respondents contended that remittal is circumscribed to the error identified, does not compel a de novo hearing, and does not license a wholesale re-opening of findings unaffected by the original error.

Summary of the Judgment

• Standing and competence of appeal: A person “mentioned in paragraph 1” for appeal purposes need not have been on the list at the time of the original application or notification. It suffices that the person is on the list at the time the appeal is competent. A misdescription in the notice of appeal did not invalidate the appeal where the recipients reasonably understood the true identity of the appellant (drawing on Investors Compensation Scheme v West Bromwich [1998] 1 WLR 896).
• Time bar and fettering: A time bar objection based on an earlier NAP decision (18 July 2024) was not entertained at the substantive stage. The petition did not in any event challenge that earlier decision, and no fettering by the 25 September 2024 decision arose.
• Scope of “reconsideration” and new evidence: “Reconsideration” on remittal does not automatically entail a de novo hearing or the admission of new evidence. While the PPC may, in some circumstances (e.g., to correct a procedural defect under Schedule 3 para 5(2B)(a)), hear further evidence, the remittal is controlled by the Chair’s advice under para 5(7)(a). Here, the NAP’s earlier remittal directed the PPC only to give adequate reasons on the “Pharmacy First” reasoning. Accordingly, the PPC had no mandate to reopen adequacy generally or to receive new evidence beyond that narrow remit.
• Timing of the adequacy assessment: The adequacy of pharmaceutical provision falls to be assessed at the date of the PPC’s decision (per Lloyds Pharmacy Ltd v National Appeals Panel 2004 SC 703), but a remittal confined to reasons does not require re-assessing adequacy at later stages. The PPC may consider probable future developments when making the adequacy assessment; here, it had already contemplated the petitioner’s takeover of the Lloyds Pharmacy premises.
• Outcome: Petition refused; the court sustained the third respondents’ third plea in law, repelled the remaining pleas, and refused the remedies sought. The court declined to issue general guidance to the NAP but noted that the NAP’s formulation—remittal “does not automatically” entitle a party to new evidence—correctly implies that in some cases further evidence might be appropriate.

Detailed Analysis

Statutory framework

• Entry to the pharmaceutical list: Under regulation 5(10) of the 2009 Regulations, an application may be granted only if the PPC is satisfied that provision at the proposed premises is “necessary or desirable in order to secure adequate provision” of pharmaceutical services in the neighbourhood.
• Consultation Assessment Report (CAR): Required by regulation 5A, the CAR provides evidence of consultation with potential users and feeds into the adequacy assessment.
• Notification and participation: Schedule 3 paragraph 1 identifies categories of persons to be notified, including any listed contractor whose interests may be significantly affected (para 1(1)(b)(iii)).
• Appeals: Schedule 3 paragraph 5(2B) limits permissible grounds of appeal to specified failures (procedural defect; failure properly to narrate facts/reasons; failure to explain application of the Regulations). The Chair may remit for “reconsideration” (para 5(5)(b)), and must give advice to remedy the defect (para 5(7)(a)).

Precedents and how they shaped the decision

• Lloyds Pharmacy Ltd v NAP 2004 SC 703: Establishes that adequacy is assessed as at the date of the PPC’s decision, albeit with regard to probable future developments. Lord Lake applies this to reject the contention that the PPC had to reassess adequacy at the later remittal stages and notes the PPC had already modelled the scenario of swift improvement following the petitioner’s takeover.
• Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045: Sedley LJ’s principle that only the discrete faulty element should be revisited—“it seems to me wrong in principle for an entire edifice of reasoning to be dismantled if the defect in it can be remedied by limited intervention”—underpins the limited scope of remittal. Lord Lake adopts this to confine the PPC’s remit to the Pharmacy First reasons.
• DK (Serbia) v SSHD [2008] 1 WLR 1246; R (Perrett) v SSCLG [2009] EWCA Civ 1365: Clarify “reconsideration” and “rehearing”: remittal is not necessarily de novo; unaffected findings stand; new evidence is exceptional and governed by usual principles. These authorities inform the conclusion that additional evidence is not compelled and depends on the nature of the defect and the Chair’s advice.
• Chowdhury v General Medical Council [2023] CSIH 13: Emphasises finality and the conditions for admitting additional evidence (relevance, explanation, materiality). Cited primarily by the petitioner; the court regards it as of limited direct application but consistent with a restrained approach to new evidence.
• Abbey Chemists Ltd v NAP [2025] CSOH 21: Concerned whether a new decision was required or reasons alone; no analysis of admitting new evidence. Distinguished and not determinative here.
• Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896: The interpretative approach to notices justified treating a misnamed appeal letter as substantively valid where the addressees reasonably understood its meaning and sender.
• Greenpeace Ltd v Advocate General for Scotland [2025] CSOH 10: On remedy and the public interest in reduction of unlawful decisions. The court indicates that, had the petitioner succeeded, reduction would likely have been granted.

Legal reasoning

1) Standing to appeal as a “person mentioned in paragraph 1”

Lord Lake provides an important textual and purposive interpretation of Schedule 3. The key phrase—“any person mentioned in paragraph 1”—governs both who may make representations (upon notification) and who may appeal. The judgment draws a careful distinction within the drafting:

• Paragraphs 4(1) and 5(1) use “any person mentioned in paragraph 1” without tying appellate standing to prior notification.
• By contrast, paragraph 5(2) restricts appeals by those who “were notified” but made no representations, showing the drafters knew how to make notification the gateway when intended.

Reading these provisions together, the court holds that appellate standing does not require that the appellant was on the list at the time of the original notification. It is sufficient to be on the list when the appeal is competent. This practical construction advances the Regulations’ purpose—ensuring that materially affected listed contractors can participate and appeal—while avoiding anomalies (e.g., allowing appeals by those who have since left the list, but barring appeals by current contractors who were not on the list when the application began).

2) Misdescription in the appeal notice

Applying ICS, the court focuses on how a reasonable recipient would understand the notice. Given the overall context—prior participation by the petitioner, the Board’s consistent intimation to the petitioner, the trading name alignment, and the bodies’ own treatment of the notice—the appeal was understood and processed as the petitioner’s. Substance prevailed over technical form.

3) Time bar and fettering

Arguments that the challenge was time-barred by an earlier NAP decision (18 July 2024) were not entertained at the substantive stage. Further, the alleged fettering could only have arisen from the earlier decision, which was not challenged timeously. The petition, explicitly directed at the 25 September 2024 decision, raised no fettering issue.

4) The scope of “reconsideration” and whether new evidence may be admitted

Two features delimit the PPC’s powers on remittal:

• The Regulations: Schedule 3 paragraph 5(5)(b) empowers remittal for “reconsideration” where any of para 5(2B)’s circumstances exist. The court accepts that, particularly where the defect was “procedural” (para 5(2B)(a)) and effectively excluded evidence, the PPC may need to hear additional evidence to cure the defect. There is thus no absolute prohibition on new evidence.
• The Chair’s binding advice: Under paragraph 5(7)(a), the Chair “shall give” advice to remedy the defect, and the Board “shall reconsider” the application. Here, the original remittal explicitly directed the PPC only “to provide sufficient reasons as to their decision making regarding the Pharmacy First issue.” Because the inquorate second decision left that advice outstanding, it remained binding when the PPC reconvened. On this narrow remit, reopening adequacy or receiving further evidence would have exceeded the scope of the remittal.

Consistent with Mukarkar, DK, and Perrett, remittal requires only that the “infected” part of the decision be reconsidered; unaffected findings stand unless ordinary principles justify fresh evidence. The NAP’s formulation that remittal “does not automatically entitle” parties to a full reconsideration or new evidence is correct in law precisely because, in some cases, new evidence will be proper—but not as a matter of course.

5) Timing of the adequacy assessment

Reaffirming Lloyds Pharmacy, the court holds that adequacy is assessed at the date of the PPC’s decision and may take into account probable future developments. Where, as here, a remittal is confined to reasons on a discrete issue, there is no obligation to reassess adequacy at later dates. Indeed, the PPC had already modelled probable future developments, including improved delivery if the petitioner’s takeover of Lloyds premises proceeded swiftly; even on that scenario, the PPC had found inadequacy of provision persisted.

6) No general guidance to the NAP

Given the statutory scheme, the court declines to issue overarching guidance on when to admit further evidence on remittal. That assessment is case-sensitive and anchored in the nature of the defect identified and the terms of the Chair’s advice under paragraph 5(7)(a).

Impact and Practical Implications

For Health Boards and PPCs

• Treat the Chair’s para 5(7)(a) advice as binding: The remittal’s scope is not an invitation to rehear the whole case. Identify the “infected” issue and address only that, unless the defect necessitates hearing further evidence to cure it.
• Admission of new evidence is conditional, not automatic: New evidence may be proper where the defect was procedural and measurably constrained the evidential record. Otherwise, maintain finality on unaffected findings.
• Reason-giving matters: Deficiencies in reasoning (e.g., around specific services such as “Pharmacy First”) are likely to result in limited remittals requiring clearer reasons, not wholesale re-determination.
• Adequacy assessment timing: Assess adequacy at the date of decision and document how probable future developments are factored in. If the process is prolonged, the test does not morph into a current-date reassessment unless the remittal so requires.

For NAP Chairs

• Frame remittals precisely: Narrow, issue-specific remittals limit the PPC’s remit and increase procedural efficiency.
• Language on new evidence: The “does not automatically entitle” wording is endorsed. It appropriately preserves the possibility of new evidence where needed to remedy a procedural defect.

For competitor pharmacies and successor contractors

• Standing clarified: A successor contractor who is on the list at the time of the appeal can appeal even if not on the list at the time of the original application/notification.
• Form vs substance in appeal notices: Minor misnomers will not be fatal where the addressees reasonably understand the appellant’s identity and position; ensure contextual clarity to minimise risk.
• Time limits are unforgiving: If challenging an earlier NAP decision or a general approach alleged to fetter discretion, bring proceedings timeously; engaging in subsequent remittal rounds may foreclose later challenges.

For applicants to the list

• Build a robust CAR and evidential package: Anticipate objections focused on adequacy and specific service uptake (e.g., Pharmacy First).
• Address probable future developments: Demonstrate how capacity and service enhancements will materialise; the PPC may consider such likelihoods at the original decision stage.

Systemic effects

• Procedural discipline: The decision supports finality and discourages attempts to leverage delay into de facto re-hearings on remittal.
• Flexibility where justified: The court preserves the PPC’s ability to hear new evidence, but only where necessary to rectify a procedural defect, protecting both fairness and efficiency.

Complex Concepts Simplified

• PPC (Pharmaceutical Practices Committee): The Health Board committee that decides whether to include a pharmacy on the pharmaceutical list.
• NAP (National Appeals Panel): The body hearing appeals from PPC decisions on limited grounds (procedural defect; inadequate narration of facts/reasons; failure to explain application of the Regulations).
• CAR (Consultation Assessment Report): An applicant’s report summarising consultation with potential patients/users; used to assess the adequacy of provision.
• “Adequacy of provision” test: Whether the proposed pharmacy is necessary or desirable to secure adequate pharmaceutical services in the neighbourhood (assessed at the date of the PPC decision, considering probable future developments).
• “Reconsideration” on remittal: A targeted process to fix identified defects. Not automatically a fresh hearing or new evidence; the scope is defined by the NAP Chair’s advice.
• “Pharmacy First” service: A national service in Scotland enabling community pharmacies to be the first point of contact for common clinical conditions; uptake and availability can inform adequacy assessments.
• Standing as a “person mentioned in paragraph 1”: The category of persons entitled to engage in the process (including appeal). One need not have been notified at the outset; being on the list when the appeal is competent can suffice.
• Fettering discretion: An unlawful constraint on a decision-maker’s ability to consider relevant matters. No fettering arose here because the challenge was to the later NAP decision and the earlier one was not timeously challenged.
• Reduction: A Scottish public law remedy setting aside an unlawful decision. The court indicated it would have reduced the NAP decision if illegality were established.
• Inquorate: A meeting or decision taken without the minimum required members present; here, it invalidated a PPC decision taken without pharmacist members.

Conclusion

This decision delivers two notable clarifications in the pharmacy listing context under the 2009 Regulations. First, it affirms a purposive reading of appellate standing: a contractor newly entered on the list by the time of appeal can appeal even if not notified at the outset, and a misnamed notice will not defeat an appeal where its meaning is clear to its recipients. Second, it defines the scope of “reconsideration” upon remittal: the PPC may, in appropriate cases, admit new evidence—particularly to remedy a procedural defect—but the extent of reconsideration is strictly controlled by the NAP Chair’s advice under paragraph 5(7)(a). Where, as here, the remittal is confined to giving sufficient reasons on a discrete issue (the Pharmacy First analysis), the PPC is neither required nor entitled to rehear the case de novo or to reassess adequacy at later dates.

The judgment balances fairness, finality, and statutory fidelity. It preserves the system’s capacity to correct genuine procedural errors (including by receiving further evidence where necessary) while resisting attempts to turn limited remittals into opportunities for wholesale re-litigation. For practitioners, the message is clear: frame and respond to remittals with precision; ensure reasons are full and specific; bring time-sensitive challenges promptly; and recognise that adequacy is anchored to the PPC’s decision date, informed by probable future developments, rather than evolving conditions during protracted proceedings.