Summary of Opinion (Anonymized)

Factual and Procedural Background

This is an anonymized summary of an Outer House Court of Session opinion delivered by Judge Lake on 26 September 2025 concerning a petition for judicial review.

The dispute arises from an application by the Third Respondent to be admitted to a Health Board's pharmaceutical list for a local area. The Petitioner operates a pharmacy practice already included on that list and opposed the Third Respondent's application. The Health Board's Pharmaceutical Practice Committee ("PPC") granted the Third Respondent's application on 20 August 2024. The Petitioner appealed to the National Appeals Panel ("NAP"); the Chair of the NAP (the First Respondent) refused the petitioner's appeal in a decision dated 25 September 2024. The Petitioner seeks judicial review of that refusal.

The application process and appeal mechanism are governed by statutory regulations which require (inter alia) an assessment of whether provision of pharmaceutical services at proposed premises is "necessary or desirable" to secure adequate provision in the neighbourhood, the submission of a Consultation Assessment Report ("CAR"), notice to persons on the pharmaceutical list who may be significantly affected, and a statutory route of appeal to the NAP where certain defects or failures are alleged.

Procedurally, this application had an extended history. The PPC had granted the application on three separate occasions. The first two grants were successfully appealed to the NAP and remitted for reconsideration; the third appeal to the NAP (the refusal dated 25 September 2024) is the decision now impugned by way of this petition. The earlier appeals raised issues about inadequate reasons given by the PPC, quorum problems, and whether the PPC could hear fresh evidence when a matter was remitted for reconsideration.

Legal Issues Presented

1. Whether the Petitioner had standing to appeal and to seek judicial review given the timing and sequence by which the Petitioner came to be recorded on the pharmaceutical list.
2. Whether the appeal submitted to the NAP was competent when the appeal document bore the name of a different corporate entity (an error in the named appellant) but was otherwise understood by the decision-makers as being from the Petitioner.
3. Whether, and in what circumstances, the PPC may receive and consider new evidence when a decision is remitted to it for "reconsideration" following an appeal to the NAP (i.e., the proper construction of "reconsideration" in the statutory scheme).
4. Whether an earlier decision by the NAP (or the timing of advice given by the NAP) gave rise to a time-bar (delay) which would preclude the present challenge.

Arguments of the Parties

Petitioner's Arguments

• The Petitioner argued it had standing: a person on the pharmaceutical list at the time an appeal is competent should be entitled to appeal, even if they were not the named entity at the time the application was first submitted to the PPC. The Petitioner relied on the statutory wording and the purpose of ensuring that persons affected have a say.
• The Petitioner contended the PPC was required to assess adequacy of provision as at the relevant time of reconsideration and that, because the CAR and other information had become out of date, the PPC should have been permitted to receive updated evidence when the matter was remitted following the earlier successful appeal(s).
• The Petitioner submitted that the NAP had unlawfully fettered the PPC's discretion by adopting an approach that precluded the admission of new evidence; it relied on authority to support that in appropriate cases new evidence should be receivable and that the PPC's inability to consider up-to-date material undermined its capacity to assess current adequacy.
• The Petitioner invoked precedents concerning when newly available factual material may be admitted on reconsideration and argued the factual change (including its takeover of an earlier pharmacy premises) justified fresh evidence and fresh factual findings in the PPC.

Third Respondent's (Applicant's) Arguments

• The Third Respondent argued that the statutory scheme and the NAP's remit to the PPC were properly interpreted as permitting reconsideration only to address the discrete defects identified on appeal and not to require a full rehearing or automatic admission of new evidence.
• Relying on authority, the Third Respondent emphasised finality and that only those parts of the original decision "infected" by the identified error need be revisited; reopening the whole decision would improperly deprive a party of a favourable judgment.
• The Third Respondent submitted that, on the facts, the PPC had already taken probable future developments into account in its assessment and there was no real prospect that the additional material the Petitioner sought to adduce would have made a difference.

Second Respondent's (Health Board) Arguments

• The Second Respondent did not adopt a position seeking a particular substantive outcome; rather it asked for guidance, should the court conclude that additional evidence may be taken, on the factors the PPC should consider when deciding whether to admit such evidence on reconsideration.
• Practically, the Second Respondent sought direction on the application of any discretion to admit further evidence so as to enable consistent future decision-making by the PPC/Board.

Table of Precedents Cited

Court's Reasoning and Analysis

The court divided its analysis into preliminary issues and the substantive challenge. The preliminary matters addressed standing, the competence of the appeal, and timeliness.

Preliminary analysis

• The court adopted a purposive construction of the statutory provisions governing who may appeal, concluding that the relevant question for appeal competence is whether the person is on the pharmaceutical list at the time the appeal is competent, not necessarily at the time the original application was made. This construction arose from the wording of the relevant schedule paragraphs and their contrasting phrases.
• The court applied the substantive-over-form principle in construing the appeal document that bore an erroneous company name. Because the Board and the NAP had understood the appeal as being from the Petitioner and the surrounding circumstances pointed to that conclusion, the court held the appeal was properly made by the Petitioner.
• A delay/time-bar argument based on an earlier NAP decision was not pursued at permission and was, in the court's view, inappropriate to raise at the substantive hearing in the circumstances; moreover, the petition expressly challenged the later (25 September 2024) NAP decision.

Substantive analysis — meaning of "reconsideration" and scope for new evidence

1. The court emphasised two controlling factors on what the PPC may do on remittal: (a) the statutory terms of the Regulations, and (b) the terms of the remit/advice given by the Chair when remitting the matter under the statutory procedure.
2. Relying on authorities concerning remittal and reconsideration, the court noted that "reconsideration" does not automatically require a full rehearing de novo and that factual findings unaffected by the identified error generally need not be revisited. However, remittal may, in some circumstances, justify admission of new evidence — for example, where a procedural defect had resulted in exclusion of relevant material.
3. The court analysed the actual remit given by the Chair on the first successful appeal: the Chair had specifically directed the PPC to provide sufficient reasons regarding a discrete issue (the Pharmacy First issue). That advice remained binding because the later PPC decision that was vitiated had not addressed it. Consequently, the scope of reconsideration at the time of the third decision was limited to remedying that defect; it was not an entitlement to a full re-opening of the entire case or automatic admission of new evidence.
4. The court rejected the Petitioner's contention that the PPC was required to reassess adequacy as at the time of each subsequent PPC decision. That approach, the court held, would contradict the limited remittal and contravene the statutory scheme and relevant authority indicating that adequacy is assessed as at the date of the PPC's decision (subject to consideration of probable future developments where appropriate).
5. While the court acknowledged that the statutory procedure envisages a swift process and that the present case had suffered from delay and logistical difficulties, those practical considerations did not alter the legal meaning of "reconsideration" in the statutory context.
6. The court accepted that in some circumstances — for instance where a procedural defect caused the exclusion of evidence relevant to the grounds on which the appeal succeeded — the PPC could properly hear additional evidence on remittal. However, on the facts of this case, because the remit was confined to correcting the earlier identified deficiency in reasons concerning Pharmacy First, it was not open to the PPC to treat the matter as a general rehearing and to admit further evidence outside that scope.

Holding and Implications

Core Ruling: The court refused the petition for judicial review and dismissed the remedies sought by the Petitioner. The court sustained the Third Respondent's relevant plea in law and repelled the remaining pleas advanced on behalf of the parties.

Implications:

• The direct effect is that the decision of the First Respondent (the Chair of the NAP) dated 25 September 2024 stands; the petition for judicial review was refused and no reduction or other remedy was granted in respect of that decision.
• The court clarified the legal position on "reconsideration": remittal to the PPC does not automatically entitle a party to a full rehearing or the automatic admission of new evidence. Whether new evidence may be received depends on the scope of the remit and whether the defect identified on appeal requires or permits admission of additional material (for example, where evidence was excluded by a procedural defect). That possibility was acknowledged but not expanded into a general rule in this judgment.
• The court declined to set out general guidance for the PPC/Health Board about the exercise of any discretion to receive further evidence on remittal, noting that the statutory procedure and particular facts of each case control the outcome and that it would be inappropriate for the court to innovate generally in this area.
• No novel binding precedent altering the statutory scheme was established; the judgment applies established principles concerning remittal, finality and the limited scope of reconsideration to the statutory context of pharmaceutical list admissions.

Outcome (short): Petition dismissed; NAP decision of 25 September 2024 upheld; court recognised that, in some circumstances, a PPC may admit new evidence on remittal, but found that was not required on these facts.