The High Court has refused the application of the Minister for Health to split a case challenging proposed new rules of the Pharmaceutical Association of Ireland which would restrict the amount of time pharmaceutical assistants can cover for a temporarily absent pharmacist to one hour per day.
The case is being brought by the Pharmaceutical Assistants Association and four female pharmaceutical assistants against the Pharmaceutical Society of Ireland, the Minister for Health and the State. The applicants claim that the livelihoods of 248 women, mostly in their late 50s with an average of 35 years experience, will be seriously affected or lost if the new rules are approved by the Minister.
The proceedings are based on a number of violations of administrative procedure, including that the rules as drafted were irrational and that the consultation process provided for under the Pharmacy Act 2007 was not followed. The challenge also includes alleged breach of the constitutional and European Convention right to a livelihood.
The respondents sought to split the case into two separate judicial reviews. Should this request be granted, the Court would first consider the administrative law grounds for the claim and then, only if the court found against the applicants, would a second hearing on the constitutional law grounds take place. Their justification for this was that “such a course of action was in keeping with the long-standing principle that the court should only determine constitutional issues if it were necessary to do so.”
Mr. Justice Barr refused the application on three grounds.
Firstly, the judge rejected the argument that a split trial should always be ordered when there are administrative constitutional questions at issue. The courts have on occasion ordered split trials where the constitutional issues were clearly separable from the main issues in the case but that this was not the case here. The judge elaborated that case law indicates that where constitutional issues fall to be determined, a trial judge should not make a determination on those issues if it is not necessary to reach a judgment in the case.
Secondly, the Court was of the opinion that the Minister had not provided a good reason why the trials should be split. The judge agreed with the applicants that to do so would be a “grossly inefficient” use of the Court’s time and would needlessly increase the costs of the action. It would be a better use of the Court’s time to deal with all the relevant issues together.
Lastly, the Court had regard for the financial circumstances of the applicants. It acknowledged that the applicants were bringing this action because they were worried about the effect the new rules would have on their income. Having particular regard for the affidavits sworn by the applicants, the judge recognised that the applicants would not have “unlimited funds” to pursue two separate actions. He said he did not want to place a financial deterrent on them pursuing their claim by forcing them to bring two judicial reviews. He said that the Court must ensure that regard for procedural rules and case management does not outweigh the need for the applicants to have full and proper access to the courts. The judge concluded by stating that “both the justice and logic of the case weigh in favour of the action proceeding as a unitary hearing.”
Click here for the full judgment.