July 1, 2019
  • Rushport Advisory

Defending Against a Pharmacy Application

Whilst we are better known for representing clients who want to open pharmacies, we are also instructed by clients who want to protect their business from new contract applications, especially when such an application might threaten the viability of their business.

We recently acted on behalf of a large national multiple that operated the only pharmacy within a town and where that pharmacy was located outside the town centre and was co-located with the local medical practice. Our client had received notification of a new application to open a pharmacy within the town centre and a number of local councillors had started a campaign and encouraged local people to write letters to support the opening of a new pharmacy. The level of support that the application received was very significant and more than we have ever seen in over 20 years of pharmacy applications. The Applicant had managed to get hundreds of pages of letters and a petition with thousands of signatures. Our client understood why the campaign for the pharmacy had been started and sympathised with it, but was also aware that if the second pharmacy opened then it could lead to the closure of their pharmacy.

Unsurprisingly the application went to an oral hearing and the Applicant was represented by a consultant and had local councillors in support as witnesses. As part of preparing our client’s defence, we realised that almost all of the evidence that the Applicant was using to support his case had already been presented to the local Health and Wellbeing Board (“HWB”) when the Pharmaceutical Needs Assessment was being written. At the oral hearing, the Applicant’s witnesses accepted under cross-examination that they had indeed presented the same evidence to the HWB. We were then able to make a submission to the oral hearing panel, that the application had to be refused irrespective of its merits as the benefits that the Applicant was claiming they would secure could not be properly considered to be “unforeseen” as required under the Regulations.

Whilst we have seen objectors make submissions like this in the past, there has never been any evidence to support those submissions. In this case the Applicant’s own witnesses confirmed that what we were saying was correct, even before we had said it.

It normally takes about 4 weeks to receive a decision after an oral hearing, but this one took longer and we couldn’t help but think that the oral hearing panel might be seeking extra guidance on how to deal with the submission that we made. In the end, the decision came in and the application was refused as our client had hoped. Sadly, the decision letter used other grounds to refuse the application and then stated that this meant they did not have to consider our legal submission on Regulation 18. From a professional viewpoint this was disappointing as nobody had ever made this submission and it is always good to set new precedent, but the client was very happy as we still managed to get the result that they needed.