Petition of Greater Glasgow Health Board for Judicial Review against The Right Honourable Lord Brodie KC PC, Chairman of the Scottish Hospitals Inquiry and others (Court of Session)

Factual and Procedural Background

This opinion concerns a petition for judicial review brought by a Health Board against the Chair of a statutory public Inquiry established under the Inquiries Act 2005. The Inquiry investigates the planning, design, construction, commissioning, and maintenance of two hospitals, focusing particularly on whether ventilation and water systems have adversely impacted patient safety by presenting an additional risk of avoidable infection. The Inquiry has been conducted in multiple phases ("Glasgow I" through "Glasgow IV"), with evidence from patients, families, clinicians, management, and experts.

The Health Board, a core participant in the Inquiry, sought to have an independent expert report and its three expert authors admitted as evidence in the Glasgow III phase. The report, commissioned by the Health Board's legal advisers, provided an alternative expert analysis suggesting no increased risk of infection from the hospitals' systems, in contrast to the Inquiry's appointed experts who had all concluded the systems were unsafe. The Chair of the Inquiry refused this application by decision dated 1 August 2024, leading to the present judicial review challenge.

Legal Issues Presented

1. Whether the Chair of the Inquiry was correct in principle to refuse to admit expert evidence tendered by a core participant on the basis that doing so would transform the inquisitorial Inquiry procedure into an adversarial one.
2. Whether the refusal to admit the expert report and hear evidence from its authors breached the duty of fairness owed by the Chair under section 17(3) of the Inquiries Act 2005 and principles of natural justice.
3. Whether the decision was irrational or unfair and should be quashed or reduced.
4. Whether the petition was academic or premature given subsequent developments in the Inquiry process.

Arguments of the Parties

Petitioner’s Arguments

• The decision refusing admission of the expert report was irrational and unfair, breaching the Inquiry Chair’s duty of fairness under the Inquiries Act 2005 and established case law.
• The expert report fell squarely within the Inquiry’s terms of reference and addressed core safety issues, presenting contradictory expert evidence that should have been heard to ensure balanced and thorough consideration.
• Fairness requires hearing all relevant expert evidence, especially where the Inquiry’s experts had uniformly been critical of the Health Board, and the Health Board’s expert evidence challenged those conclusions.
• The exclusion of this contradictory expert evidence prevented the Inquiry from hearing the full story and risked unjustified adverse findings against the Health Board.
• The Chair’s reliance on the procedural distinction between inquisitorial and adversarial processes was misplaced; admitting the evidence would not necessarily transform the Inquiry into adversarial litigation.
• The petition was not academic because the Chair’s decision of principle precluded reconsideration, and there remained a live practical issue requiring court intervention.

Respondent’s Arguments

• The Chair’s decision was a proper exercise of discretion on grounds of principle and practicality, including the timing of the application near the start of a lengthy evidential hearing and the volume and complexity of the expert report.
• The Inquiry procedure is inquisitorial, not adversarial, and admitting the report tendered by one core participant risked undermining that procedural approach and fairness to other participants.
• All core participants have opportunities to challenge evidence and make submissions, including in subsequent phases of the Inquiry, ensuring fairness without requiring admission of the disputed report at Glasgow III.
• The decision did not preclude future applications to admit the evidence, and subsequent Inquiry Directions confirmed the Chair’s openness to further applications, rendering the petition academic and premature.
• The expert report was effectively an advocacy document commissioned for multiple purposes, including civil and criminal proceedings, and its underlying data was incomplete, further justifying refusal.
• The court should not interfere with the Chair’s difficult procedural management and discretion absent clear error.

Interested Parties’ Arguments

• The interested parties, who are whistle-blowers and core participants, supported the Chair’s decision as reasonable and within discretion.
• Admitting the expert report at the Glasgow III stage would have been impractical and unfair to other participants who needed adequate time to consider it.
• The petition was conducted without urgency and after the evidential stage had concluded, meaning no practical consequences would flow from success.
• The absence of underlying data and the ability of the Inquiry experts to challenge the Health Board’s position without the disputed report meant no unfairness had occurred.
• Even if there was an error of principle, the alternative practical reasons for refusal were sufficient to uphold the Chair’s decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the wide discretion of the Inquiry Chair under the Inquiries Act 2005 to determine procedure and evidence, emphasizing the inquisitorial nature of the Inquiry. The Chair’s refusal to admit the Health Board’s expert report was initially justified on interrelated grounds of principle and practicality, notably the concern that admitting the report would convert the inquisitorial process into an adversarial one, and the timing and volume of the evidence would disrupt the hearing schedule.

However, the court found no legal support for the proposition that receiving evidence from a core participant necessarily changes the Inquiry’s inquisitorial character to adversarial. The court emphasized that fairness under natural justice applies equally to inquisitorial proceedings, requiring that parties likely to be adversely affected by findings must be allowed to present relevant conflicting evidence and arguments.

Given the Inquiry’s expert evidence had been uniformly critical of the Health Board, the existence of contradictory expert evidence tendered by the Health Board was a significant development that should have been considered to ensure a balanced and thorough investigation. The court concluded that the Chair’s decision on principle was wrong and unfair, breaching the statutory duty of fairness.

The court rejected the respondent’s argument that practical considerations alone justified refusal, noting that the practical reasons were intertwined with the erroneous principle and could not cure that error.

While acknowledging subsequent Inquiry Directions permitting future applications to admit the evidence and that the evidential phase in question had concluded, the court held that the Chair’s decision of principle precluded reconsideration of the report’s admission, creating a live practical issue that justified court intervention.

Accordingly, the court granted a declarator that the Chair’s decision was wrong in principle and unfair to the Health Board to the extent that it concluded admitting the expert report and hearing its authors would abandon the inquisitorial procedure. The court did not reduce the decision, considering it unnecessary given developments and the possibility of a fresh application.

Holding and Implications

The court’s final ruling was to SUSTAIN the petitioner’s plea in law insofar as it sought a declarator that the Inquiry Chair’s decision of 1 August 2024 was wrong in principle and unfair under section 17(3) of the Inquiries Act 2005.

The court declared that the Chair’s conclusion that admitting expert evidence tendered by a core participant would convert the Inquiry from inquisitorial to adversarial was erroneous and breached the duty of fairness. However, the court refused to reduce the decision, noting that subsequent procedural developments and directions allow the Health Board to make a fresh application to admit evidence.

The direct effect is that the Inquiry Chair’s decision of principle is legally flawed and unfair, but no immediate change to the evidential record or Inquiry procedure was ordered. The ruling clarifies that admitting expert evidence from core participants is compatible with inquisitorial procedure and that fairness requires consideration of contradictory expert evidence on issues central to the Inquiry’s remit. No new precedent beyond this declarator was established, and future procedural management remains within the Chair’s discretion.