Pharmacy Care Plus Ltd., R (on the application of) v Family Health Services Appeals Unit [2013] EWHC 824 (Admin)

Case No CO/10112/2012[2013] EWHC 824 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT AT MANCHESTER
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Friday, 1 st March 2013
M3 3FX
Before
HIS HONOUR JUDGE STEPHEN DAVIESSITTING AS A JUDGE OF THE HIGH COURT
Between
THE QUEEN on the application of Pharmacy Care Plus LimitedClaimantFamily Health Services Appeals UnitDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Fraser Campbell appeared for Claimant. for The Defendant did not attend and was not represented.
Judgment
[1]In this case the claimant is Pharmacy Care Plus Limited and the defendant is the National Health Service Litigation Authority. The claimant by these judicial review proceedings seeks to challenge the decision by the defendant to allow an appeal by a company known as Medsdirect2u Limited, which is the second interested party, against a decision of the first interested party, the Calderdale Primary Care Trust, to refuse to include Medsdirect2u Limited on the pharmaceutical list which it maintains for its area.[2]Permission to bring the claim was granted by HHJ Pelling QC on 12 December 2012 on grounds (1) and (2), by which the claimant contends that the appeal decision was based on a fundamental error of fact or was based on insufficient evidence.[3]The defendant filed and served a detailed acknowledgement of service contesting the claim and it also filed evidence after permission was granted, but it has indicated through its solicitors that it does not propose to attend the hearing today in order to save costs.[4]It has been agreed between the parties, and the court has accepted, that it is appropriate to leave over the question of costs until a substantive decision has been made, but it has also been accepted by the defendant in the light of the preliminary view communicated by me previously that it was not appropriate to leave over the question on remedy, which also falls for determination today, if appropriate.[5]So far as the interested parties are concerned, I have already referred to the first and the second parties. The third interested party is a company known as Calderdale Health Focus Ltd, which is the proprietor of a pharmacy known as the King Cross Pharmacy to which I shall refer in a moment, and the fourth and fifth interested parties are other pharmacies in the area who, as I understand it, also submitted representations in relation to the appeal.[6]None of the interested parties have played any part at all in these proceedings. Whilst that is understandable in the case of the first, fourth and fifth parties, it is less understandable so far as the second and third parties are concerned, certainly so in the case of Medsdirect2u Limited, which is of course a company whose interests are directly and significantly affected by the outcome of this claim. But in the absence of any explanation as to why they have not played a part, I would not think it proper to draw any inference one way or another, so far as their absence is concerned.[7]I will refer to the facts briefly. There is very little, if any, factual dispute and the facts can be taken largely from the appeal decision itself. The original application for inclusion on the pharmaceutical list was made on 25 September 2011 by Medsdirect2u Limited and it was signed by a Mr Aamer Ayub, who described himself as a director of that company. It is clear that it was made on the basis that it would be an internet-based pharmacy and would not provide services to persons physically present at the pharmacy which, as I understand it, allowed it to avoid having to demonstrate that there was a need for a further pharmacy in the area.[8]The application was rejected by the primary care trust -- who were, I should say, the primary decision maker in accordance with the regulatory code -- by a decision letter given on 28 February 2012. That, in short, was on the grounds that the proposed premises were adjacent to the existing premises of the King Cross Pharmacy, and that it was reasonable to treat the proposed service to be provided by Medsdirect2u as part of the same service as the existing service being provided by King Cross Pharmacy.[9]All of that needs to be explained by reference to the regulatory code which, as it was in force at the time that that decision was taken, was contained in the National Health Service (Pharmaceutical Services) Regulations 2005. In particular regulation 17A provided that a primary care trust should not grant an application if: “(a) a person on a pharmaceutical list (which may or may not be the applicant) is providing or has undertaken to provide pharmaceutical services (“the existing services”) from:(i) the premises to which the application relates, or(ii) adjacent premises; and (b) the Primary Care Trust is satisfied that it is reasonable to treat the services that the applicant proposes to provide as part of the same service as the existing services (and so the premises to which the application relates and the existing listed premises should be considered as one site).” (i) the premises to which the application relates, or (ii) adjacent premises; and[10]It is clear, as Mr Fraser Campbell, counsel for the claimant, submitted to me today, that there is no discretion so far as that is concerned. In other words, if those twin requirements are satisfied then the application must not be granted; there is no discretion to grant even if both are satisfied.[11]It is also relevant to note that although that regulation has been superseded by the 2012 Regulations, so far as I understand it they are in the same form as the 2005 Regulations, in this respect at least, so that the test continues to be the same.[12]The primary care trust concluded that the proposed premises for Medsdirect2u were adjacent to the existing premises of King Cross Pharmacy. That was challenged in the appeal to which I shall refer in a moment, but that challenge was rejected and therefore it is not a live issue so far as this case is concerned.[13]So far as the second conclusion is concerned, the primary care trust had evidence before them that the company that operated King Cross Pharmacy -- which as I have already said is the company Calderdale Health Focus Ltd, the third interested party -- and Medsdirect2u were two separate companies. However they also noted that Mr Aamer Ayub, who was the man they refer to as one of the directors of the applicant company, still regularly worked in the King Cross Pharmacy and was until earlier in 2011 a director of Calderdale Health Focus Ltd. They also referred to the site visit carried out by their representative, which they said showed that the relationship between the two businesses were harmonious, and they concluded that in those circumstances this was, in reality, a request to divide the existing business, rather than to establish a separate and distinct business.[14]They also noted that they felt that no extra pharmaceutical services would be achieved by granting this application, and that to grant it would result in an additional £60,000 charge to PCT funds. That is a reference to the fact that if an application is granted the successful applicant is entitled to receive an annual payment from the primary care trust, apparently to the tune in this case to some £60,000. It is also apparent from guidance promulgated by the defendant, to which I have been referred, that the principal if not the only reason for introducing paragraph 17A of the Regulations is to prevent what is in substance the same business from opening up two ostensibly separate businesses from the same or adjacent premises, and thereby getting the benefit of two sets of annual payments, and also, as I understand the way the scheme operates, obtaining the benefit of economy of scale without having to make consequential rebates on the basis of its size.[15]The Regulations provide for a right of appeal against such a decision. The appeal lies to the Secretary of State, who has delegated that function to the defendant, who in turn has delegated that function to the Pharmacy Appeals Committee of the Family Health Services Appeal Unit.[16]In this case an appeal was made on 25 March 2012. The appeal document was signed not by Mr Ayub but by a Mr Mohammed Ifzal, who as I understand it was the man who was stated on the original application to be the pharmacist who would run the proposed business but who is not, nor was he at the relevant time, as I understand the documents, in fact a director of Medsdirect2u Limited.[17]In paragraph 1 of the grounds of appeal, a specific positive statement was made by the appellant company to the effect that it had no link to the King Cross Pharmacy. It asserted that King Cross Pharmacy was run by Calderdale Health Focus Ltd as a separate company, in which one of the previous directors of the appellant company, Mr Aamer Ayub, was employed as a locum pharmacist. It also asserted in paragraph 6 that the relationship between Medsdirect2u and King Cross Pharmacy was “uniform as with any other pharmacy within the area”. It disputed that there was a “harmonious relationship” between the two companies, and asserted that the “mere fact that a pharmacist making the application works at another pharmacy” cannot be used to prejudice the application.[18]It is now known as a result of further investigations carried out by the claimant that those statements are clearly wrong. It is not for me to make findings as to whether or not they were made deliberately, knowing that they were wrong; it is sufficient to say that they were clearly wrong and misleadingly so. This is because by reference to information publicly available at Companies House, which was available at the time and was available when the claimant launched his judicial review in September 2012, it is clear that there was a close relationship between the two companies.[19]First, from the evidence at Companies House the position is that the only registered director of Medsdirect2u Limited at the relevant time, whatever the position may be now, was Mr Aamer Ayub and, insofar as the appeal suggested that he was no longer a director of Medsdirect2u Limited, that was simply not true.[20]Second, the directors of Calderdale Health Focus Ltd until 1 September 2012 were Mr Aamer Ayub and Mr Qamar Ayub. Mr Ayub resigned as a director on 1 September 2012 but remained as company secretary, and the shares in that company were held equally by Mr Aamer Ayub, Mr Qamar Ayub, Mr Rizwan Ayub and Mr Kamran Ayub.[21]So far as Medsdirect2u Limited is concerned, it is owned equally by two other companies, one company being AQA Meds Ltd, which is a company of which Mr Aamer Ayub and Mr Qamar Ayub are also directors and equal shareholders, and the other company being QRS Ltd, of which little or nothing is known.[22]In short, what can be said with confidence is that Mr Aamer Ayub was involved in the management of Medsdirect2u Limited and also had, indirectly, a substantial stake in that company, and that he also had a substantial stake in Calderdale Health Focus Ltd and was involved in its management as company secretary and that the same person, Mr Qamar Ayub, is a director and also a shareholder.[23]On the face of it, therefore, the suggestion that there was no link between Medsdirect2u Limited and King Cross Pharmacy was, as I have said, simply wrong.[24]The appeal committee, as it was required to do, invited representations from those who had been notified of the original application and who had made representations to the primary care trust. That included the claimant who, I should say, is a company that operates a chain of pharmacies including one in the same locality as the King Cross Pharmacy. What was said by the claimant in its representations so far as this issue was concerned was that it considered that the primary care trust and other parties were better placed than it was to clarify the points and determine whether the various pharmacy operations were connected.[25]The primary care trust also maintained in its representations on appeal its position as to the connection as its representative understood it between the two companies. It is also right however to say that no one who made representations carried out, or if they did, produced to the appeal committee, any evidence of what had been or could have been discovered from a Companies House search.[26]I have in evidence the witness statement of Mr Andrew, who is the Chief Executive Officer of the claimant. He says that at the time of the appeal he did carry out a Companies House search as against Calderdale Health Focus Ltd, and discovered that Mr Aamer Ayub had indeed resigned as director in September 2011, but that he did not conduct a Companies House search against Medsdirect2u Limited. He says therefore that at the time of the appeal he was not aware of the evidence to which I have just referred as to the connection between the two companies. I accept his evidence on this point, not least because I have no doubt that if he had been aware he would have said something about it in the claimant’s representations.[27]The appeal committee, having recited the history and the submissions, dealt with this issue in paragraphs 5.8 and 5.9 of their decision, which was promulgated in writing on 25 June 2012. In paragraph 5.8, they noted certain facts in relation to the connection or otherwise between Medsdirect2u Limited and the King Cross Pharmacy. In particular, they noted that there appeared to be some conflicting information as to the relationship between the two, but did not make any positive statement or draw any positive conclusion.[28]In paragraph 5.9 they said this:
“The Committee was not provided with any information as to why it would be reasonable to treat services provided by Medsdirect 2U Ltd as part of the same services as those provided by King Cross Pharmacy (for the purposes of Regulation 17A(b)) as the applicant and King Cross Pharmacy are two separate chemists (although it is uncertain as to whether some or all of the directors of one are also directors of the other, however there appears to be no commercial connection).”
[29]This conclusion was then followed in paragraph 5.10 by the final conclusion, which was the committee was of the view that both parts of Regulation 17A had not been met and, accordingly, the appeal was allowed.[30]Before me Mr Fraser Campbell has subjected paragraph 5.9 to close scrutiny and sustained criticism. First he submits, in my judgment rightly, that insofar as the first part of paragraph 5.9 says that the committee was not provided with any information as to why it would be reasonable to treat services provided by Medsdirect2u as part of the same services as those provided by King Cross Pharmacy, that cannot be right, because it ignores the evidence relied upon by the primary care trust below, and it also ignores the information which was provided for the appeal as well. It can only sensibly be read, it seems to me, as meaning that it was not, in its opinion, provided with sufficient information as to why it would be reasonable to treat the services as the same.[31]There is then a positive statement that the applicant and King Cross Pharmacy are two separate chemists. That again is not explained and, on the face of it, and by reference to the words in brackets, that must, I think, be read as meaning to say that they are two separate companies.[32]So far as the words in brackets are concerned, they record the uncertainty as to the linkage as between directors but they then say that there appears to be no commercial connection. But they do not explain what commercial connection means: does it mean connection in terms of the ownership and control of the two companies or does it mean connection in terms of the services provided, or does it mean connection in terms of both ownership and control and services? Given that there is no reference in this part of the decision to the nature of the services being provided and proposed to be provided, on a natural reading of that paragraph it seems to me, as Mr Fraser Campbell submits, more naturally to be read as a reference to the ownership and control of the companies.[33]I have gone into paragraph 5.9 in some detail because, in the acknowledgement of service, it was suggested by the defendant that this was actually a reference only to the connection in terms of the services being provided or proposed to be provided by the existing and proposed new pharmacy. But when that suggestion was challenged by the claimant, the evidence submitted by the defendant after permission was granted included a statement from a Ms Lisa Hughes, who is the Appeals Manager of the Family Health Services Appeal Unit, and who is responsible for oversights of the functions delegated to the authority in relation to appeals. What she says is that the position so far as the appeal committee is concerned is not that the question is wholly dependent on the manner of service delivery; and that instead, the decision is made in the light of all the information put before it by the parties which is relevant to that question, which includes the manner of service delivery, which she accepts may be a relevant factor for consideration, but which also includes the issue of any connection between the respective providers, which she also accepts would be a relevant factor for consideration.[34]So far as the proper construction of Regulation 17A is concerned, in my judgment Ms Hughes is obviously right when she says that it is necessary for the decision maker to consider all information relevant to the issues which need to be considered when reaching a decision on paragraph 17A(b). It is clear, and I accept Mr Fraser Campbell’s submission to this effect, that it will almost always be an extremely relevant consideration to know whether or not there is any connection in terms of ownership and control between the entities who carry on the existing business and who propose to carry on the proposed new business. So, for example, if an existing business was owned by Company A and the proposed new business was owned by Company B, and there was absolutely no connection at all in terms of ownership and control between the two of them, it would be difficult to see how they could be regarded as providing the same service, even if the services which they were going to provide were complementary to each other. In contrast, if they were both to be provided by exactly the same company, then that would also be an extremely relevant consideration going the other way.[35]But also I can well accept that there may be intermediate positions; so, for example, there may be a commonality of ownership but the owners may not be exactly the same, and it may very well be that in such cases one would have to consider things such as the nature of the respective businesses; whether or not they are going to be physically separate or separate from a business point of view; whether or not the employees would be working in both businesses, and any other relevant matters. That conclusion seems to me to be consistent with the guidance given in 2009 by the Department of Health, to which I have been referred, whereby in short, the question is said to be whether or not the primary care trust is satisfied that the applicant has a sufficiency distinct identity and will be providing a distinct service from the already listed contractor.[36]In this case, from the evidence to which I have referred, there clearly was a common link in terms of ownership and control, although it was not precisely co-extensive because the owners of Medsdirect2u Limited in terms of shareholding were not precisely the same as the owners in terms of shareholding of Calderdale Health Focus Ltd.[37]Therefore, it seems to me, this was one of those cases where it must have been necessary, both for the primary care trust and for the appeal committee, to consider that question, i.e. the nature and extent of the similarity in ownership and control, as well as all other relevant factors, when reaching its decision.[38]I now turn to the grounds of challenge. I have already identified the two in respect of which HHJ Pelling QC granted permission. I do not need to refer to the third because he did not grant permission in relation to that, which has not been pursued, rightly in my judgment, so that I am concerned only with grounds 1 and 2.[39]I should also record that no issue of standing arises in this case, because it is accepted by the defendant in its acknowledgement of service, again rightly in my judgment, that the claimant is someone who is entitled to challenge this appeal decision because it has a direct interest in the outcome.[40]So far as ground 1 is concerned, I have been referred to two cases which set out the relevant law. The first is a decision of the Court of Appeal in the case of E v Secretary of State for the Home Department [2004] QB 1044, where the judgment of the court was given by Carnwath LJ (as he then was). That was a case about asylum. However the Court of Appeal was confronted with a question of principle, not limited to asylum cases, which was whether or not a mistake of fact giving rise to unfairness could in principle be asserted as a separate head of challenge on an appeal on a point of law (as in that case) or on a judicial review. That was a question which in their view was not susceptible of an easy answer, so that it was subjected to detailed consideration in a section starting at paragraph 36 and ending at paragraph 67.[41]In paragraph 63, the Court of Appeal held that in principle such a claim could be made on the basis, by reference to an earlier authority, that there existed a separate ground of review based on the principle of fairness. In paragraph 66 they said that:
“Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are [as follows]. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning”
[42]Further, in paragraph 63, they said that it was also a requirement that all participants had a shared interest in cooperating to achieve the correct result.[43]That decision was applied in the second case to which I have been referred, which is a decision of HHJ Hickinbottom (as he then was), sitting as a judge of the High Court, in the case of Assura Pharmacy Ltd [2008] EWHC 289 (Admin), which was a judicial review application against a decision of the Pharmacy Appeals Committee brought in the context of the same Regulations as those which apply in this case.[44]In that case HHJ Hickinbottom held that the shared interest requirement applied just as much in that case as it did in the case of E v. SSHD, to which I have referred. For the reasons which he gave, which I adopt with gratitude, I am satisfied that it applies in this case as well.[45]I must now also turn to the requirements identified by the Court of Appeal in paragraph 66 as ordinarily needed to be present, and to consider whether each of them are satisfied.[46]First, was there a mistake of fact? The answer in my judgment by reference to what I have already found is that there was. It is quite clear that the appeal committee proceeded on the basis that there was no proven or demonstrated link between the two companies other than some coincidence of directors. It is also quite clear that this was not the true position. Finally, it is quite clear that this was obviously an important factual matter.[47]Second, it was an established fact in the sense that, as Mr Fraser Campbell has submitted, it could have been demonstrated by reference to objectively verifiable information at Companies House that the position was not as had been said by Medsdirect2u Limited, and thus not as mistakenly concluded by the appeal committee.[48]Third, it is also obvious from what I have already said that the mistaken impression played a material part in the reasoning of the appeal committee. Again, as I hope I have already demonstrated, it is clear that at the very least it played a material part; I suspect it was probably decisive.[49]The fourth requirement is one which the defendant has submitted in the acknowledgement of service cannot be satisfied in this case, which is whether or not the claimant can fairly be held responsible for the error. What the defendant says is that it would have been open to the claimant at the time of the appeal to have conducted the investigations which it only did later, in September, and thus to have produced and put before the appeal committee the evidence as to the true link between the companies when it made its submissions before the appeal committee. It refers to the fact that in the letter which it sent to those entitled to make representations, on receipt of the notice of appeal, the authority stated that it relied on each party to produce the relevant documentary and other evidence to support its position. So what it says is that the claimant could not have thought that it was not its responsibility to provide this information and that, if the claimant chose to leave this point to others, it cannot really complain if they did not pick up the point so that the appeal committee produced its decision in ignorance of the true position.[50]The defendant also says that it is not its fault that the error was made, because it was not the appeal committee’s responsibility to undertake its own investigations.[51]The defendant does not however specifically refer to the position of Medsdirect2u Limited in this respect, and it is here that Mr Fraser Campbell directs his fire. What he says is that it is wholly unfair and artificial to argue that it is the claimant who could fairly be held responsible for the error, because it is absolutely obvious that if anyone is to be responsible then it is quite clear that it must be Medsdirect2u Limited. He submits that whether or not they made these misrepresentations deliberately or by mistake, nonetheless they made clear statements in their appeal notice which were quite clearly factually untrue and which were relied upon by the appeal committee in reaching the decision that they did. What Mr Fraser Campbell submits is that if one asks the question, who fairly should be held responsible for this error, there is only one answer and it is Medsdirect2u Limited. Whilst it may be said that the claimant as much as anyone else who was entitled to make representations could have discovered the position had they undertaken a full Companies House search, to say that they are fairly to be responsible for the error, when all they did was to accept in good faith what was asserted by Medsdirect2u Limited, would be an improper conclusion.[52]In my judgment these are good and convincing arguments. The reality is, as I have already said, that it is quite clear that both the claimant and the defendant were misled by what was said by Medsdirect2u Limited, and the claimant cannot sensibly be regarded as responsible for the error, simply because it did not conduct its own investigations at the time. It is clear from the cases of E v. SSHD and Assura, to which I have referred, that the overall question is one of fairness, and it seems to me that it would be extremely unfair to deny relief to the claimant on the basis that it failed to make enquiries to check something which had been asserted by Medsdirect2u Limited, in circumstances where on the face of it there was no obvious reason why that needed to be checked by the claimant.[53]In those circumstances and for all those reasons, I am satisfied that ground 1 is made out.[54]Mr Fraser Campbell also addressed me by reference to ground 2, which of course strictly speaking I do not need to decide having regard to my conclusion on ground 1. In the circumstances, all that I need to say is that if I had needed to decide the case on that ground alone, then I would have been very doubtful that it had been made out. The reason for that, it seems to me, is that on the basis of the evidence which was before the appeal committee, in circumstances where Medsdirect2u Limited made clear statements in the appeal notice which to some extent were inconsistent with the information previously available but not diametrically contradictory, and in the absence of any positive evidence to the contrary from anyone else, it does not seem to me that it could be said to have been unreasonable for the appeal committee to have concluded that on that evidence they were not satisfied that it was reasonable to treat the services as part of the same service. Therefore it might well be difficult to say that ground 2 could have succeeded on its own as a free standing challenge. But given the conclusions that I have reached on ground 1, I do not think that that is of any significance on the facts of this case.[55]What I must do, however, is to decide whether or not I should exercise my discretion to grant the remedy sought by the claimant, which is to quash the decision of the appeal committee. It is accepted that the court has a discretion in such a case, which of course must be exercised judicially, and I must have regard to all relevant facts and matters, including issues of delay, issues of prejudice and the like. I have been referred by Mr Fraser Campbell to the decision of the Court of Appeal in the case of R (on the Application of Oxby) v Bassettlaw District Council [1998] PLCR 283 where the court did quash a planning permission decision where there was bias on the part of the decision maker but where there had been delay in bringing the application. In a section headed, “The Exercise of the Discretion”, Hobhouse LJ (as he then was) referred to the authorities, and concluded in short that each case would depend upon its own facts and upon an evaluation of all of the relevant factors in that case.[56]In this case, it is obvious that Medsdirect2u Limited would suffer prejudice if the decision is quashed. It can also be said that the prejudice would be significant because it would have the effect, at least in the short term, of preventing it from carrying on the business which it has been able to carry on as a result of the appeal decision.[57]As against that, Mr Fraser Campbell draws my attention to certain relevant factors. First he says that it cannot really complain too strongly about that prejudice, in circumstances where the appeal decision was obtained as a result of their own seriously misleading statements, and he observes that they have not come to court nor filed any evidence to explain the circumstances in which they came to make those statements.[58]Second, he says that on the facts any prejudice is limited, because it appears to have started business at the beginning of September 2012, whereas by the end of September 2012 they had already been made aware that these proceedings had been launched and, by the end of December they knew that HHJ Pelling QC had granted permission to bring the claim. In those circumstances, Mr Fraser Campbell submits that they cannot say that they have been carrying on business for a long time in the confident belief that they were entitled to do so and that the time for challenging the decision had passed.[59]He contrasts that with the position of the claimant, which on the evidence of Mr Andrew, which I accept, is that until Medsdirect2u Limited began business and until he saw certain advertising information produced by them which caused him to conduct a further check, he was completely ignorant of the true position, and that as soon as he discovered the true position, he acted promptly; so that the company instructed solicitors, the letter before action was sent and these proceedings were commenced. Thus he contends that there can be no criticism of delay on the part of the claimant and indeed the claimant is suffering, so Mr Andrew says, a downturn in business and in profits as a result of competition from Medsdirect2u Limited.[60]I accept these arguments so far as Medsdirect2u Limited. Further, and so far as the defendant is concerned it does not, nor could it, identify any prejudice to it in the decision being quashed. Nor has any other interested party suggested that there is any prejudice to them, and there is no reason to think that there is.[61]Having regard to all of those relevant factors and accepting, as I do, that although it is not for me to decide what the consequence of quashing should be, on any view it is clear that it will be open to Medsdirect2u Limited or whoever is responsible for running that business to make a further application, it seems to me that overall, on the facts of this case, I should exercise my discretion in favour of quashing the decision, and that, therefore is what I do. JUDGE DAVIES: Yes. So, Mr Fraser Campbell, the order you invite me to make is...? MR FRASER CAMPBELL: That the decision is quashed, my Lord, with costs reserved. 62. JUDGE DAVIES: I will make this

order

“Upon hearing counsel for the claimant and upon there being no attendance by the defendant or any of the interested parties, it is ordered:(1) The decision of the defendant made on 25 June 2012 is quashed.(2) The question of costs is reserved to be dealt with as follows …” Mr Fraser Campbell, what do you invite me to do in relation to costs? I would have thought, unless you have any contrary suggestions, that I should require the defendant to file and serve submissions in relation to costs within a specified period, for you to have the right to reply within a specified period, and for me then to determine all questions of costs on paper? MR FRASER CAMPBELL: Yes, my Lord, I think that would be the best way. JUDGE DAVIES: Your solicitor sent to the court yesterday a schedule of costs. MR FRASER CAMPBELL: Yes, my Lord. JUDGE DAVIES: Has that also been served on the defendant? MR FRASER CAMPBELL: Yes, my Lord, it has been served. JUDGE DAVIES: So, as far as you are concerned, there is no need for you to serve anything more on the defendant? MR FRASER CAMPBELL: No, indeed, my Lord. My position is that the natural order would be for our costs and it is now for the defendant, if it wishes to, to make representations as to why some different order should be made. 63. JUDGE DAVIES: Yes. Good, so I shall say, as I have said: “(2) The question of costs is reserved to be dealt with as follows: (i) The defendant shall if so advised file and serve any written submissions and or evidence on the question as to whether or not it should be ordered to pay the claimant’s costs of the claim, and on the amount claimed under the costs schedule already served upon it by the claimant, by 4.00 pm on Friday, 15th March. (ii) The claimant shall, if so advised, file and serve any reply by 4.00 pm on --” Do you want 14 days? 14 days will take us up to Good Friday, but do you want to try and get it served before then or do you want it after? MR FRASER CAMPBELL: I would think seven days would be enough for us. 64. JUDGE DAVIES: So if I say 25 March, which gives you over the weekend as well. “(ii) The claimant shall, if so advised, file and serve any reply by 4.00 pm on Monday, 25th March 2013. (iii) The court shall determine all questions of costs thereafter on paper.” MR FRASER CAMPBELL: I am grateful, my Lord. JUDGE DAVIES: Good. Would you be prepared to volunteer, Mr Fraser Campbell, to draw up that order and to file it at court in the normal way? MR FRASER CAMPBELL: Yes. JUDGE DAVIES: Thank you very much, that is very kind. Well, I think that is everything, is it not? MR FRASER CAMPBELL: My Lord, I wonder if I could possibly have your note just so I can check the wording of the order accords. JUDGE DAVIES: Of course. Do you want me to read the whole thing out again? MR FRASER CAMPBELL: Or if you would be prepared to give it to me. JUDGE DAVIES: Unfortunately, my note would be illegible to anyone else. MR FRASER CAMPBELL: That is fine. JUDGE DAVIES: I will read it out again. MR FRASER CAMPBELL: It is fine; I think my solicitor has taken a better note than I have. JUDGE DAVIES: Certainly. In the normal way, when you produce the minute, send it by email to the court office and ask them to send it through to me for me to approve and then I can check it against my own, illegible to anyone else, note and I can declare it as accurate. MR FRASER CAMPBELL: Fine. 65. ..............................................................