Rushport Advisory Llp), R (On the Application Of) v National Health Service Litigation Authority

In a statutory pharmaceutical-services scheme, a later application is not automatically barred merely because an earlier grant remains extant. The decision-maker may conclude that the public-benefit test is satisfied if there are good reasons to consider that the first grantee cannot deliver the required services.

The decision-maker must assess the available evidence, including the practical availability of premises, and must not accept an undertaking at face value where delivery is manifestly unrealistic. A second grant may be irrational where both grants could result in over-provision, unless the first service is considered undeliverable. A court should direct the statutory appeal body to allow an appeal only where no other lawful outcome is possible. Otherwise, the proper remedy is quashing and remission.

Rushport and Bidford Healthcare Ltd each held a grant to provide one pharmacy in Bidford. Rushport’s grant was made first, but Bidford Healthcare controlled the only suitable premises. The National Health Service Litigation Authority dismissed appeals against Bidford Healthcare’s grant and disregarded the availability of premises.

The parties accepted that the decision should be quashed. The dispute concerned whether the appeals should be remitted for fresh determination or whether the court should direct the NHSLA to allow Rushport’s appeal and quash Bidford Healthcare’s grant.

1. Relief and permissible outcomes. The statutory scheme contained no express requirement that the second application be refused merely because an earlier grant existed. A mandatory order could therefore be made only if every other outcome would be irrational or perverse in the Wednesbury sense. Cases in which a decision-maker has only one permissible option are rare.
2. Extant grant and public benefit. The public-benefit test under regulation 18(2)(b) could, in principle, be satisfied despite an extant grant where the prior grantee was unable to deliver the services. The decision-maker was not required to accept a statutory undertaking at face value where, on the evidence, it was manifestly unrealistic and delivery was demonstrably impossible.
3. Relevant evidence. The decision-maker had to assess the evidence available, including the practical availability of premises and the likelihood that services under the first grant could be delivered. Commercial confidentiality did not justify disregarding relevant evidence. The case-management provisions supported weighing competing applications. A second grant might be irrational unless there were good reasons to regard the first grant as undeliverable, such as insolvency or an express abandonment of the business. The decision-maker had to guard against both grants resulting in over-provision at public expense.
4. Undertaking. The pre-application undertaking to provide services was conditional on service of a notice of commencement. It was not an undertaking to serve that notice, was not legally binding, and created no substantive entitlement or obligation before the notice was served.
5. Application of the principles. The NHSLA unlawfully disregarded the fact that only one suitable building was available within the location estimates given by both applicants. The decision was quashed and both appeals were remitted for fresh determination. The court declined to direct the NHSLA to allow Rushport’s appeal because the result after lawful reconsideration was uncertain.