Anonymised Summary of Opinion — Judicial Review

Factual and Procedural Background

This opinion concerns a judicial review petition by Company A (the petitioner), which operates multiple pharmacies including one in Larbert, challenging a decision recorded by the chair of the specialist appeals body (the Panel) dated 9 April 2025. Company B (the respondent health board) had granted an application by Company C to be included on the board's pharmaceutical list. Company A had appealed that board determination to the Panel under the statutory scheme created by the National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009 ("the regulations").

The Panel chair remitted the matter to the board's Pharmacy Practices Committee (the "PPC") for reconsideration on the ground that the PPC had been inquorate when it determined the application. The PPC reconvened on 29 July 2025, satisfied itself it was quorate, and reaffirmed its earlier determination granting the application on the basis that existing provision of pharmaceutical services in the area was inadequate. Company A subsequently sought judicial review of the chair's 9 April 2025 decision, principally on the basis that the chair, while remitting the matter for reconsideration on quoracy grounds, had declined to uphold three other grounds of appeal advanced by Company A.

The respondent health board maintained that the petition was premature because Company A had also appealed the PPC's refreshed determination and the statutory appeal process had not yet run its course. At an oral hearing to consider permission to proceed, Company A argued that the appeal to the Panel was not an effective remedy because the PPC had simply adopted its earlier decision and any re-hearing would likely repeat the earlier conclusions; Company A contended the appeal had merely been lodged to preserve its position.

Legal Issues Presented

1. Whether the petitioner has exhausted the statutory remedies available under the regulations, and therefore whether the petition for judicial review is premature.
2. What is the proper statutory role and jurisdiction of the chair of the Panel when considering notices of appeal — specifically, whether the chair may determine merits issues alone or is limited to gatekeeping (dismissal, remit, or convening a full panel).
3. Whether the chair erred in law by declining to uphold the petitioner's first three grounds of appeal and whether the chair's decision was inadequately reasoned.

Arguments of the Parties

Petitioner's Arguments (Company A)

• The appeal to the Panel is not an effective remedy because, in practice, the chair decides appeals and the chair's earlier decision indicates the same reasoning will be applied again; thus pursuing the appeal would be futile and a waste of resources.
• The petitioner's particular grounds (other than the quoracy ground) would inevitably be disposed of the same way on any re-hearing, so the statutory appeal does not provide an effective remedy.
• Counsel relied upon cases addressing finality and public administration in support of the proposition that relitigation of the same issues may be inappropriate in certain circumstances.

Respondent Health Board's Arguments (Company B)

• The petition is premature because Company A has not exhausted the statutory appellate process: the PPC has made a fresh determination and Company A has an appeal to the Panel available and pending.
• Any aspects of the chair's earlier decision that appear to reject grounds of appeal should be read as obiter and not binding on a future panel hearing the full appeal; the chair's remarks are not determinative of a full-panel determination.
• The respondent also raised a separate argument on procedural timeliness (lateness), noting the petition was presented some months after the chair's decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Company D v The Panel [2025] CSOH 91	Example of recent judicial review litigation under the regulations involving Panel decisions.	The opinion notes this case as part of a list showing that the regulations have been fertile ground for judicial review; it is cited to contextualise recent litigation, not to derive a specific legal rule in the decision under review.
Company E v Company B (Health Board) [2025] CSOH 33	Recent judicial review under the same regulatory regime (illustrative).	Cited as contextual support for the observation that the regulations have prompted multiple challenges; no narrower principle taken from it into the court's reasoning here.
Company F v The Panel [2025] CSOH 21	Illustrative precedent under the regulations.	Included in the list of related decisions; the court used these references to show the regulatory context but did not derive a distinct ruling from this case in the present opinion.
Community Pharmacy (anonymised) 2023 CSOH 65	Historical example of litigation under the regulatory framework.	Referenced as part of background showing recurring litigation; no specific application beyond context.
Company G v The Panel [2004] SC 703 (Lloyd's Pharmacy Ltd)	Interpretation of regulation 5(10) — the two-stage adequacy test (first consider whether existing provision is adequate, then whether the proposed provision is necessary or desirable if inadequate).	The court relied upon this authority to explain the statutory two-stage test that the board must apply under regulation 5(10); it emphasised that the chair and PPC must apply that legal test correctly when determining adequacy.
Company H (Tarmac Econowaste) 1991 SLT 77	Authority cited by petitioner for propositions relating to finality or estoppel-type arguments in administrative contexts.	Petitioner relied on this as supporting the contention that relitigation may be inappropriate; the court recorded the citation but ultimately treated exhaustion of statutory remedies as the primary rule.
Regulatory Body A (R (Gallacher Group Ltd) v Competition and Markets Authority) [2019] AC 96	Authority cited on issues of finality and efficient administration.	Cited by petitioner; the court recorded the citation but concluded that no exceptional circumstances existed to displace the ordinary rule requiring exhaustion of statutory remedies.
Johnston v GA [2025] CSIH 18	Recent authority cited on related procedural/finality issues.	Cited by petitioner; the court noted the citation but did not base its primary decision on this precedent.
British Railways Board v Glasgow Corporation 1976 SC 224	Principle that, other than in exceptional circumstances, judicial review is improper where an effective statutory remedy is available and has not been exhausted.	The court applied this principle to refuse permission to proceed, treating the petition as premature absent exceptional circumstances.
McCue v Glasgow City Council 2014 SLT 891	Similar authority on prematurity and exhaustion of statutory remedies.	Recorded and applied as part of the established line of authority supporting refusal of judicial review where statutory routes remain available.
Company I v Highland Council [2025] CSOH 69 (Bridgeport Estates Ltd)	Recent authority on exhaustion/prematurity principles cited by the court.	Used to illustrate the settled approach that judicial review is ordinarily inappropriate while effective statutory remedies remain available.

Court's Reasoning and Analysis

The court's reasoning proceeds from a detailed statutory analysis of the regulatory scheme and the specific statutory role allocated to the chair of the Panel when a notice of appeal is referred to that office.

Key statutory points drawn from the regulations (as explained by the court) are:

• The board maintains a pharmaceutical list and the PPC determines applications for inclusion; an appeal mechanism to the Panel is available on narrowly drawn grounds.
• Schedule 3 provides that appeals are referred to the chair of the Panel, who after considering the notice of appeal and the PPC determination must either (a) dismiss the appeal if it discloses no reasonable grounds or is frivolous/vexatious, (b) remit the matter to the PPC for reconsideration if any of the paragraph 5(2B) circumstances (procedural defect, failure to narrate facts or reasons, or failure to explain application of the regulations) has occurred, or (c) convene a full three-member Panel to determine the appeal in any other case.
• The chair has a duty, when remitting, to give such advice to the PPC as appears desirable to remedy the defect; that duty is expressly provided for in Schedule 3 paragraph 5(7).
• The chair's power to dismiss or remit is expressed to be final in Schedule 3 paragraph 5(5); however the chair has no statutory power to determine an appeal on the merits while acting alone and outside the summary dismissal power.

Applying that framework to the facts, the court reasoned as follows:

1. The chair's principal (gatekeeping) function is to sift out manifestly unmeritorious appeals (summary dismissal) and to remit matters where one or more of the paragraph 5(2B) defects has, in the chair's view, occurred. In the latter case the chair must remit and may give advice; but the chair does not, by that remit or by offering advice, finally determine the merits of other grounds of appeal that fall outside his limited remit.
2. Where the chair does not remit (and the notice of appeal is not dismissed as devoid of reasonable grounds), he must convene the full Panel; the regulations do not permit the chair, acting alone, to determine an appeal on its merits.
3. Although the chair's decision in this case used language that suggested he was declining to uphold the petitioner's first three grounds of appeal, the court concluded that, properly understood, the chair was exercising a gatekeeping remit: he identified a quoracy defect (paragraph 5(2B)(a)) and remitted the matter. Any advice he gave on the other grounds was advice only and not a final determination of those grounds.
4. Because the chair's remit is premised on his opinion that a paragraph 5(2B) circumstance has occurred, and because a subsequent full Panel is not bound by the chair's expressed opinion, the petitioner had not exhausted its statutory remedies with respect to the other grounds it wishes to advance on appeal.
5. The court also identified a narrower error in the chair's analysis: the chair's framing of one of the petitioner's grounds (the "adequacy test" under regulation 5(10)) neglected reference to paragraph 5(2A) (an error of law in application of the regulations). The court observed that the chair appeared to have tried to fit that error of law into the paragraph 5(2B) categories when the better approach would have been to treat it as a paragraph 5(2A) error — an error of law that cannot properly be cured merely by remit. This misunderstanding of the character of the ground reinforced the conclusion that the petitioner had not exhausted its statutory remedies.
6. Finally, on the separate point of delay, the court noted some unexplained delay but indicated that, given the shortness of the delay and the circumstances (including the board's failure to publish the decision and confusion over electronic delivery), it would have been prepared to extend time had it not been refusing permission on prematurity grounds. The court did not make a final favourable finding on the lateness point because the primary ground for refusal was prematurity.

Holding and Implications

Core Holding: PERMISSION TO PROCEED REFUSED (PETITION PREMATURE). The court refused the petitioner's application for permission to proceed with judicial review on the basis that the petition is premature because the petitioner has not exhausted the available statutory remedies (the fresh appeal process to the Panel remains available).

Implications

• Direct effect on the parties: Company A's petition for judicial review was not permitted to proceed; Company A must pursue its statutory appeal route (the notice of appeal against the PPC's refreshed determination) before seeking judicial review, unless it can demonstrate exceptional circumstances justifying immediate review (none were shown).
• Clarification of the chair's role: The opinion clarifies that the chair of the Panel primarily performs a gatekeeping function — summary dismissal of plainly unmeritorious appeals, remittal where specified procedural defects or failures to narrate reasons exist (with advice), and otherwise convening the full Panel. The chair has no power to determine the merits of an appeal while acting alone (other than by summary dismissal where appropriate).
• Effect on future procedure: The opinion emphasises that advice given by the chair when remitting is only advisory; a subsequent PPC determination and any full-Panel consideration of an appeal are not bound by the chair's expressions of opinion on merits issues. Conversely, where a ground of appeal is properly characterised as an error of law in the application of the regulations (paragraph 5(2A)), remit will not cure that error and the proper course may be to convene the full Panel.
• Precedential posture: The immediate consequence is refusal of permission in this petition. The court published the opinion in part to clarify the statutory roles and to assist the parties and the Panel in the forthcoming determination of the pending appeal. The decision refuses permission on prematurity; readers should note that the court's analysis is directed to the procedural question of exhaustion of statutory remedies and to clarification of the chair's statutory role.

Note: This summary is strictly confined to the information contained in the provided opinion and has been anonymised in accordance with the instruction to replace personally identifiable information with generic placeholders. No factual or legal matter has been added beyond what appears in the opinion text.