The High Court has refused the Minister for Health’s application to split a judicial review challenge to draft rules proposed by the Pharmaceutical Society of Ireland (PSI). The court directed that the action proceed as a unitary hearing, with all issues to be argued at one hearing.
The judgment, delivered by Mr Justice Barr on 10 October 2019, concerns a procedural application. It did not determine whether the proposed rules are lawful or decide the applicants’ constitutional or European Convention on Human Rights claims.
The applicants are the Pharmaceutical Assistants Association Company Limited by Guarantee and four individual pharmaceutical assistants. They challenge draft rules drawn up by the PSI in or about February 2019. The rules would take effect only with the Minister’s consent; the Minister had agreed not to give consent while the action was pending.
The applicants’ challenge includes administrative law grounds, including alleged failures to follow statutory and consultation procedures, irrationality and lack of power to make rules of the proposed kind. They also allege that, if the PSI had the power to make the rules, section 30(2) of the Pharmacy Act 2007 would breach constitutional rights and the European Convention on Human Rights.
The Minister asked the court to hear the administrative law grounds first and consider the constitutional and Convention claims only if the applicants failed on the other grounds. His counsel argued that constitutional issues should be decided only when necessary. The applicants opposed a split, saying the Minister was also contesting the administrative law challenge and that two hearings would increase costs and use court time inefficiently. The PSI was essentially neutral, with its counsel saying that any split hearing should be before the same judge.
Justice Barr said the cited authorities supported refraining from deciding constitutional issues in a judgment when other grounds had already resolved the case and made those issues moot. They did not establish that a case raising constitutional issues should routinely be divided into separate hearings.
The judge was not satisfied that the Minister had given good practical reasons for a split. He considered that separate hearings could substantially increase costs and waste court time. He also had regard to the applicants’ affidavits about the proposed rules’ impact on their incomes and their likely limited financial resources, finding that two proceedings could risk deterring them from pursuing their claims. The court therefore refused the Minister’s application. The underlying challenge remains for determination.