Supreme Court dismisses appeals against Health Board contract terms, upholding experience requirements and termination clauses.

Denham J.

McGuinness J.

Geoghegan J.

McCracken J.

Kearns J.

THE SUPREME COURT

[NOS. 316 & 317/2004]

BETWEEN

COLLOONEY PHARMACY LTD

APPLICANT/APPELLANT

AND

THE NORTH WESTERN HEALTH BOARD

RESPONDENTS

AND

BETWEEN

HOLLYHILL PHARMACY LTD

APPLICANT/APPELLANT

AND

SOUTHERN HEALTH BOARD

RESPONDENTS

JUDGMENT of Mr. Justice Kearns delivered on the 6th day of July, 2005

1. boards. The purpose and intention of the agreement was to provide a foundation for the enhancement of the role of the community

pharmacist and the quality of, and accountability arrangements for, services provided in community pharmacies in the context of

furthering the aims of the Health Strategy.

2. By way of background and introduction, the Irish Pharmaceutical Union in 1994 lodged a claim for a substantial increase in

dispensing fees paid to community pharmacy contractors under the General Medical Services (G.M.S.) Scheme. Against the

background of public pay policy it was agreed that the best way of progressing discussions on the claim would be to establish a group

representing the health boards, G.M.S. (Payments) Board, the Department of Health and the Pharmaceutical Contractors Committee

of the Irish Pharmaceutical Union. Its terms of reference required the group to examine aspects of the delivery of community

pharmacy services which were of concern to either side and to make recommendations which would underpin the role of the

community pharmacy in the provision of an accessible, high quality, cost effective and accountable professional service to G.M.S.

patients and persons availing of the community drugs schemes. The three key principles of equity, quality of services and

accountability outlined in the Health Strategy were the focus of the group’s work.

3. One of the recommendations of the group was the new contract which was intended, and did, replace the existing contract, which

dated from 1972, for the provision of services under the Health Act, 1970. In the summary of agreed recommendations issued by the

Department of Health/Irish Pharmaceutical Union following negotiation of the contract, the new contract was referred to in the

following manner:-

“This contract provides a major new emphasis on the professional role of the pharmacist. It also sets out, in the context of

the patient/pharmacist relationship, new standards in the quality of community pharmacy services expected. The contract

also provides for enhanced accountability by all parties to the agreement in the dispensing of medicines under all publicly

funded schemes.”

4. The many terms of the contract do not require to be set out in detail. However, it provided inter alia new arrangements for the

provision of high-tech drugs which would henceforth be dispensed by the community pharmacist, and not in hospitals. It was

envisaged that this would result in improved patient care and greater control of these expensive and essential medicines. A capitation

payment per patient per month was agreed as part of this arrangement.

5. The contract contained a further provision whereby a sum of £250,000 was made available for the continuing education of

community pharmacists, and further recommended that an annual sum of £500,000 be made available in subsequent years for the

same purpose. It further provided that community pharmacists be supported in undertaking any necessary upgrading of their IT

equipment for the purpose of improving the service. It also provided for a 3% increase in fees payable to community pharmacists

under the G.M.S. Scheme, the Drug Costs Subsidisation Scheme and the Long-Term Illness Scheme.

6. These were significant and tangible benefits achieved at the end of a long and drawn-out process of negotiation between the

Pharmaceutical Contractors Committee and the Department of Health. The negotiations date back as far as 1992, but intensified in

early 1995 before ultimately reaching a successful conclusion. As Mr. Padraig Staunton, Chairman of the Pharmaceutical Contractors

Committee, wrote to individual pharmacists on the 13th June, 1996:-

“The real negotiations which started in early 1995 had to be conducted within the constraints of the Programme for

Competitiveness and Work (P.C.W.) and had to take into account, ‘the need for efficiency, flexibility and change…’.

In addition the pressure has been coming for increased accountability. Members will be well aware that the demand for such

accountability has been publicised in recent times on T.V., Radio and in the national press.

The PCC therefore was looking for a variety of concessions which would make a significant contribution to the long-term

economic well-being of members as well as a public recognition of the professionalism of pharmacists. The Department sought

increased accountability and a contractual agreement which would set out how pharmacists would deliver on the

professionalism for which they have been seeking recognition.”

7. Mr. Staunton’s letter went on to recommend acceptance “without reservation” of the new contract to its member pharmacists.

8. The appellants in the present case were not, however, satisfied with certain aspects of the new contract, although they signed up

to its terms and provisions, albeit they claim they did so out of necessity and because they had no alternative.

9. In the case of Collooney Pharmacy Ltd, its representatives sought a meeting with the deputy administrator of the North Western

Health Board in September, 1996, to ventilate their concerns and to suggest a number of amendments. A meeting took place on the

3rd October, 1996, at which it was indicated that the North Western Health Board was unable to make any changes to the

agreement.

10. On the 9th October, 1996, Mr. Patrick Durkin of Collooney Pharmacy wrote to Mr. John Hayes, Deputy Administrator of the General

Practice Unit of the North Western Health Board in the following terms:-

“As we indicated to you, we intend to seek a judicial review of the North Western Health Boards decision to unilaterally impose

the new agreement on us. We have been advised that there are in existence no valid regulations under the terms of section

59 of the Health Act, 1970 which justified the imposition of particular terms of this contract by you on us.

We have been further advised that the decision to impose the following terms in the contract is ultra vires and void for the

reasons stated:-

1. Clause 6(2) of the new agreement requires that the contractor pharmacy shall ensure that there is a nominated

supervising pharmacist of at least 3 years experience in the practice of community pharmacy in charge of the

pharmacy. This stipulation is contrary to the terms of section 2 of the Pharmacy Act, 1962, which enables a body

corporate to keep open a pharmacy provided it is personally managed by a qualified pharmacist.

2. Clause 19(1) of the agreement provides that it is to terminate automatically where the supervising pharmacist either

ceases to be entitled to keep open shop or practice pharmacy. The severity of this clause is irrational and unreasonable

in law. We accept, of course, that the pharmacy must at all times be supervised by a qualified pharmacist, but the

holder of the agreement must be entitled to provide a replacement.

3. Clause 20(1) provides that where a supervising pharmacist ceases to act in that capacity the agreement terminates

one month after that date unless a new statement as specified in this clause is submitted and accepted by a Chief

Executive Officer of a Health Board. The said clause is irrational, haphazard and unreasonable in law in that

(i) No guidance is provided with regard to how the Chief Executive Officer will exercise his or her discretion and

(ii) It is unreasonable to expect a permanent pharmacist replacement to be found within one month. A locum will of

course have to be put in charge to keep the pharmacy open.

4. Clause 22(6) provides that in the case of the death of the pharmacy contractor, or in the case of a company, the

death of the supervising pharmacist, the agreement will only remain in force for a period of one month from the date of

death and shall on the expiration of this period terminate. The Chief Executive Officer of a Health Board is given the

power to award a new contract to any other party. This provision is irrational, haphazard and unreasonable in law in

that:-

(i) No guidance is given to the said officer as to the manner in which his or her discretion will be exercised and

(ii) it is unreasonable not to give the holder of this agreement an opportunity of replacing the deceased pharmacist. This

clause is also inconsistent with clause 20(1).

5. Clause 22(3) provides for the automatic termination of the contract in the case, inter alia, of any change in the

beneficial ownership of the pharmacy contractor. Thus, it would appear that even the smallest change in the share

ownership of the company might result in the automatic cesser of the contract. The said provisions are accordingly

uncertain, unreasonable and disproportionate in law. There is no statutory or other objective which could objectively

justify the necessity for such a clause.

6. Furthermore, even if (which is denied) clause 6(2) of the Contractor Agreement is not contrary to section 2 of The

Pharmacy Act, 1962, the said clause is void as contrary to Articles 6 and 48 of the E.C. Treaty in that they discriminate

against pharmacists from other Member States who are less likely to have experience in ‘community pharmacy’ as

defined in the Schedule to the Agreement and by reason of the extremely short time limits less likely to be employed as

supervising pharmacists.

7. Finally, no valid regulations have been made pursuant to section 59 of the Health Act, 1970, which would justify the

unilateral imposition of these terms in the new contractor agreement.

Please confirm to us in writing within 7 days that pending the determination of the proposed judicial review proceedings, that

you will not circulate any list of pharmacies at which high tech drugs may be purchased which excludes our above pharmacy

and confirm that we will be paid at the same rate as all other pharmacies supplying drugs to eligible persons.”

11. Thus it may be seen that while legal proceedings followed, both appellants in this case took and enjoyed the benefits of the new

contract from the time they subscribed to same and did not elect, as they could have done, to stick to the terms of the previous

contract. There is no suggestion that they at any time objected to the entitlement or authority of the Irish Pharmaceutical Union to

negotiate on behalf of its members. The union is the holder of a negotiating license pursuant to the Trade Union Acts and is thus

entitled to represent the interests of community pharmacists in this country.

12. In the circumstances, it would, I feel, be fair to say that this challenge has been brought because certain aspects of the

“package” were regarded as unsatisfactory as outlined in Mr. Durkin’s letter.

13. I gratefully adopt the more detailed account of the background facts set out in the judgment of O’Caoimh J. in the High Court

who, with his customary thoroughness, has not only recited all the background history and facts, but has also dealt fully with the

correspondence and the legal submissions filed by both sides. He noted in the course of his judgment (delivered on the 14th May,

2004), that it was not being suggested that the Minister or the health boards should have consulted with some other representative

body on the applicants’ behalf or that the interests of the applicants were in any material respect different to the interests of other

pharmacists. Nor had it been suggested that objection was ever taken by the applicants to the fact that the Minister and the health

boards were negotiating with the Irish Pharmaceutical Union. Furthermore, he noted that the supervising pharmacist of Collooney

Pharmacy Ltd. was at all times a member of that union. He further noted the submission that it would have been wholly impracticable

and indeed undesirable to have a process of individual negotiations or to have a situation where different pharmacies were subject to

materially different terms and conditions in respect of the provision of the same services.

14. At the end of a carefully reasoned judgment, the learned trial judge refused to grant the appellants relief on any of the grounds

argued.

15. In arguing the appeal before this court, Mr.Gerard Hogan, senior counsel on behalf of the appellants, characterised his challenge

and appeal in the following manner:-

(a) The new contract is, in effect, an administrative regulation under the “guise” of a contract and is thus impermissible under

s.59 of the Health Act, 1970.

(b) Certain individual provisions of the new contract are themselves ultra vires because they are either irrational or

unreasonable.

16. At the outset Mr. Hogan very candidly accepted that none of the fears or apprehensions of his clients as to the implications or

effects of the new contract had materialised. He nonetheless maintained that he had both locus standi to bring this challenge and

that he was entitled to invoke the court’s protection against the possible future breach of those rights. I have no difficulty in

accepting both of these propositions. Mr Hogan further elected not to pursue the argument that any provision of the EC Treaty was

violated by the new agreement.

17. Without further ado, therefore, I propose to address the two strands of this appeal, commencing with the argument that the

arrangements put in place by the new contract are more appropriately the subject matter of ministerial regulation.

18. Section 59 of the Health Act, 1970, provides as follows:-

“(1) A health board shall make arrangements for the supply without charge of drugs, medicines and medical and surgical

appliances to persons with full eligibility.

(2) When a person with limited eligibility, or a person with full eligibility who does not avail himself of the service under

subsection (1), satisfies the chief effective officer of the health board that, in respect of a period and to an amount

determined by regulations made by the Minister, he has incurred expenditure on drugs, medicines and medical and surgical

appliances which were obtained on the prescription of a registered medical practitioner and were for the treatment of that

person or his dependants, the health board shall make arrangements to meet the balance of the cost, or a proportion thereof

(as may be prescribed) of the person's being supplied in respect of that period with such drugs, medicines and medical and

surgical appliances.

(3) A health board may make arrangements for the supply without charge of drugs, medicines or medical and surgical

appliances to persons suffering from a prescribed disease or disability of a permanent or long-term nature.

(4) Regulations relating to the service under this section shall be made with the consent of the Minister for Finance.”

19. Mr. Hogan noted that the only regulations made under s.59 of the 1970 Act were the Health (Community Pharmacy Contractor

Agreement) Regulations, 1996, which have since been revoked. He also noted that s.59 of the Health Act, 1970, had been amended

by the Health (Miscellaneous Provisions) Act, 2001, which, however, had not yet been brought into force.

20. Mr. Hogan submitted that the new agreement, while contractual in form, was in reality a form of quasi-legislation or quasi-

statutory instrument, insofar as it contained elements of regulation of the service provided by the respondents. He argued that the

health boards are effectively the monopoly purchasers of the services provided under the G.M.S. by pharmacies such as the

applicants. Under the terms of the new contract, the health boards had reserved the right to alter its provisions without the formal

consent of his clients. The fact that the new contract provided for a three year requirement in terms of the experience of a

supervising pharmacist, together with the power of unilateral alteration of the contract, was a clear indication that the contract was

designed to regulate the provision of services under s.59(4) of the 1970 Act otherwise than by means of regulations promulgated by

the Minister for Health and Children with the consent of the Minister for Finance. The quasi- legislative character of the contract was

also highlighted by reference to individual and specific provisions of the contract to which reference had already been made in Mr

Durkin’s letter. Indeed, Mr. Hogan suggested that clause 6(2) of the agreement, which requires that any pharmacy taking up the new

contract must ensure that the nominated supervising pharmacist has at least 3 years experience in the practice of community

pharmacy, could be seen as an attempt to interfere with the rights conferred by s.2 of the Pharmacy Act, 1962, which provides inter

alia that an “authorised person” means a registered pharmaceutical chemist. Under s.2 of the 1962 Act, a person may not keep open

shop for the dispensing or compounding of medical prescriptions unless the person is an authorised person and the shop and the

dispensing and compounding of medical prescriptions therein are personally supervised by an authorised person. The new contract

purported to interfere with the right of any qualified pharmacist to operate as a supervising pharmacist by introducing the 3 year

requirement. The statute could not be revoked by a regulation; still less could the respondent achieve by means of administrative

practice that which would be ultra vires if it were attempted by means of regulations promulgated under s.59(4) of the 1970 Act.

Effectively, therefore, the health boards could not, it was submitted, indirectly achieve under the guise of contract that which the

Minister could not do directly by regulations under s.59(4) of the 1970 Act. Section 59(4) impliedly precludes arrangements for the

service to be made otherwise than by regulations made by the Minister with the intended safeguards provided therein (consent of the

Minister for Finance, power of annulment by either House of the Oireachtas).

21. In making his submissions, Mr. Hogan relied principally upon the judgment of Henchy J. in McCord v. Electricity Supply Board

[1980] I.L.R.M. 153 and the decision of this court in O’Neill v. Minister for Agriculture and Food [1998] 1 I.R. 539.

22. I would be of the view, however, that neither of the authorities relied upon support Mr. Hogan’s contentions, and I am further

satisfied that this ground of appeal must fail.

23. In McCord v. Electricity Supply Board [1980] I.L.R.M. 153, customers of the E.S.B. were required to agree to certain standard

terms and conditions which were determined unilaterally by the E.S.B. and which could be altered as the E.S.B. saw fit. In the course

of his judgment Henchy J had stated (at 161):-

“.. it is important to point out that the contract made between the plaintiff and the Board (incorporating the General

Conditions relating to supply) is what is nowadays called a contract of adhesion: it is a standardised mass contract which

must be entered into, on a take it or leave it basis, by the occupier of every premises in which electricity is to be used. The

would-be consumer has no standing to ask that a single iota of the draft contract presented to him be changed before he

signs it. He must lump it or leave it.

..When a monopoly supplier of a vital public utility – which is what the Board is – forces on all its consumers a common form

of contract, reserving to itself sweeping powers, including the power to vary the document unilaterally as it may think fit,

such an instrument has less affinity with a freely negotiated interpersonal contract than with a set of bye-laws or with any

other form of autonomic legislation. As such, its terms may have to be construed not simply as contractual elements but as

components of a piece of delegated legislation, the validity of which will depend on whether it has kept within the express or

implied confines of the statutory delegation and, even if it has, whether the delegation granted or assumed is now consistent

with the provisions of the Constitution of 1937.”

24. In this case, however, the contract is the product of detailed discussion and negotiation with the accredited representatives of

pharmacists in the State. Furthermore, the undisputed evidence in this case has been that, compared with the contract which it

replaced, the new contract provides for a significant level of new and/or additional benefits for participating pharmacists, albeit it also

provides for more onerous conditions in certain respects. It is, in other words, a typical product of any negotiating or bargaining

process, with both sides making gains, but also having to make concessions.

25. The Minister and the health boards were not, in my view, obliged to negotiate with every pharmacist and/or pharmacy owner on

an individual basis and those parties acted properly and reasonably in negotiating with the I.P.U., which is a registered trade union

authorised to negotiate on behalf of its members. Nor were the appellants obliged to sign the new contract which was negotiated,

because they could have opted to carry on with the existing contract if they so wished. It was quite different from the “take it or

leave it” dilemma which customers were confronted with in McCord v. Electricity Supply Board [1980] I.L.R.M. 153.

26. Furthermore, valuable precedent exists to suggest that an arrangement such as that eventually arrived at in the present case is a

perfectly valid and proper manner of effecting new arrangements. In Association of General Practitioners Ltd. v. Minister for Health

[1995] 1 I.R. 382, there had been a complaint by the Association of General Practitioners Ltd - a company formed to promote the

interests of doctors in general practice - that the Minister had declined to consult with them when negotiating the terms and

conditions applicable to G.P. contracts for the supply of G.M.S. services under s.26 of the 1970 Act. The Minister had, however,

consulted with the Irish Medical Association and Medical Union and then with the Irish Medical Organisation (formed by their merger).

27. The process of determining these terms and conditions was described by the learned judge in the following terms (at page 388):-

“Accordingly, in relation to the provision of free medical services by general practitioners for eligible persons under the Act,

the procedure followed is that the several health boards enter into contracts with the doctors, but the terms and conditions

to be offered to the doctors are determined beforehand by the Minister so that uniformity is attained on a nationwide basis.

The Act imposes no express obligation on the Minister to consult the medical profession or its representatives or anyone else

before deciding on the appropriate terms and conditions, but the Minister has at all times adopted the very prudent course of

engaging in lengthy discussions between representatives of Department of Health and the doctors before completing the

blueprint on which the health boards are to act.”

28. An identical process involving “lengthy discussions” took place between the I.P.U. and the Department of Health in the instant

case in relation to the terms and conditions of the new contract. Any complaint that the Minister should have consulted with the

appellants as well as the I.P.U. was addressed in analogous terms by O’Hanlon J. in Association of General Practitioners Ltd v. Minister

for Health [1995] 1 I.R. 382 when he stated (at p.391):-

“There is quite a formidable body of precedent in cases where the relevant circumstances were close enough to those

obtaining in the present case. Speaking generally, I do not consider that there is an obligation imposed by ordinary law or by

the Constitution on an employer to consult with or negotiate with any organisation representing its employees or some of

them, when the conditions of employment are to be settled or reviewed.

The employer is left with freedom of choice as to whether he will negotiate with any organisation or consult with them on

such matters, and is also free to give a right of audience to one representative body and to refuse it to another, if he chooses

to do so.”

29. As already noted, it is not suggested that the Minister and the health boards should have consulted with some other

representative body on the appellants’ behalf or that the interests of the appellants were in any material respect different to the

interest of other pharmacists. Nor is it suggested that objection was ever taken by the appellants to the fact that the Minister and

health boards were negotiating with the I.P.U.. Furthermore, it appears that the appellants’ supervising pharmacist was at all times a

member of that body. It seems clear to me, therefore, that the observations offered by O’Hanlon J. in the passages cited in the

previous paragraphs apply with even greater force to the facts of the present case.

30. I would be of the view that great value and importance attach to the process of securing uniformity, so far as is possible, in

terms and conditions applicable to the supply of drugs and medicines to eligible persons under s.59 of the 1970 Act. It would be both

impracticable, and indeed undesirable, to have a process of individual negotiation or to have a situation where different pharmacies

were subject to materially different terms and conditions in respect of the provision of the same services. In the circumstances the

fact that the health boards were not in a position to negotiate with the appellants in relation to amending the terms of the contract

gives rise to no valid complaint on the appellants’ part and still less does it provide any basis for impugning the contract or any of its

provisions.

31. However, this still leaves the point whether such a contract is “permissible” under s.59 of the 1970 Act. The appellants sought to

distinguish the case of Association of General Practitioners v. the Minister for Health [1995] 1 I.R. 382 on the basis that the statutory

provision at issue there - namely, s.26(1) of the 1979 Act - expressly authorised the health boards to enter into contracts of that

kind. However, s.26(1), like s.59, refers to “arrangements” being made by health boards. Secondly, and perhaps more importantly,

s.26 (1) is equally applicable to the provision of pharmacy services to eligible persons as it is to the provision of G.P. services. It

seems to the court therefore that any supposed distinction is non- existent.

32. I am of the view that s.59 creates both a power and a duty to make “arrangements” whereby the objective of s.59 is effectively

achieved. Once it can be said that any contract made does not go beyond what is reasonably necessary in this regard, or contain

conditions which could properly be said to be outside the scope of s.59, it follows that the health boards are entitled to include such

terms as may be required to secure the provision of a high quality and reliable service to eligible persons. The fact that certain

provisions of the contract, such as clause 6(2), address issues which could also have been addressed in regulations made for the

purposes of s.59 is not determinative of the issue. The contract is not expressed to be dependent on the existence of regulations.

Nor should s.59 be interpreted in such a way as to circumscribe the health boards in making such arrangements as appear appropriate

in order to achieve the statutory objectives of s.59.

33. Mr. Hogan further relied upon the decision of this court in O’Neill v. Minister for Agriculture and Food [1998] 1 I.R. 539. In that

case the applicant sought judicial review of the refusal of the Minister for Agriculture and Food to grant a license for the practice of

artificial insemination. He further sought a declaration that the exclusivity scheme adopted by the first respondent was ultra vires the

powers of the first respondent pursuant to the Livestock (Artificial Insemination) Act, 1947. In allowing the applicant’s appeal, the

Supreme Court held that, whilst the major reason for the introduction of the statutory controls over artificial insemination was the

desirability of controlling disease and improving the general quality of the national herd, the statutory control was negative rather

than positive and there was nothing in the Act of 1947 to suggest that the Oireachtas had intended that the first respondent should

adopt such an exclusivity scheme. Essentially, the Supreme Court held that the scheme was so radical that the Oireachtas could not

have envisaged that it could be established by a series of administrative decisions which avoided legislative supervision and

accessibility rather than by way of regulations.

34. I can not accept that the facts of the present case are remotely similar to those which obtained in O’Neill v. Minister for

Agriculture and Food [1998] 1 I.R. 539. Firstly, the contract at issue in these proceedings imposes no quantitive restrictions. It does

impose some qualitative requirements intended to ensure, and only to ensure, more effective delivery of services for which the health

boards are responsible. Clause 6(2) is a good example of such a requirement, which is obviously desirable, if not also essential, to

enable the modern pharmacist to take full responsibility for the operation of a community pharmacy, particularly one where high-tech

drugs are being dispensed. It does not seem to me that, as purchasers of the services in question, and having regard to their own

statutory obligations to eligible persons, health boards are precluded from stipulating such a requirement as a contractual condition.

35. Nor do I accept that clause 19 reserves to the health boards any exclusively unilateral right to alter the terms of the contract.

This is the other major bone of contention advanced by the appellants. As a matter of fact, neither clause 19(3) or 19(5) provide for

unilateral alteration. On the contrary, neither the appellants nor the health boards can bring about any change in relation to these

clauses other than by the mechanism contained in the new contract which provides that both sides agree to accept changes as may

be agreed between the Minister and the Pharmaceutical Committee. Again this does not strike me as some impermissible use of a

contract by way of making arrangements in respect of the service provided.

36. In conclusion on this aspect of the case, I am satisfied that neither the contract as a whole nor the particular provisions

identified by the appellants constitute an attempt to achieve by “administrative practice” that which the Minister could not indirectly

do by regulations under s.59(4) of the 1970 Act.

37. I will deal briefly with Mr. Hogan’s second line of appeal, because to a very large degree the findings in relation to his first ground

of appeal govern this aspect of the case also.

38. It almost goes without saying that any nitpicking exercise whereby each and every line of a contract is perused will yield up a

term, clause or provision which at first blush appears unreasonable, or even irrational. In my view, the new contract must be

approached and interpreted for what it is, namely, a package of agreed measures developed over a lengthy process of negotiation

between representatives of the pharmacists and the Department of Health. In any package there are plusses and minuses.

39. The plusses comprise the increase in fees, the provision of educational grants and ongoing financial and other support. The

minuses, if such they may be described, focus on certain particular provisions which might have unfortunate consequences if strictly

applied by the health boards. However, as O’Caoimh J. noted, and as has been confirmed to this court, the supposed problems and

difficulties are entirely hypothetical in nature insofar as no particular instance has been indicated to this court whereby the

applicants, or indeed anyone else, have been adversely affected by any application of the clauses at issue.

40. Obviously the contract must be construed in a reasonable manner and must be construed strictly and operated fairly. I have

already indicated that in my view clause 6(2) is a reasonable provision designed to ensure a high quality of service to eligible persons.

Having regard to the fact that high-tech drugs are now being dispensed, I would support the view of the learned High Court judge

that it can not be said to have been unreasonable or irrational to stipulate a requirement for 3 years relevant experience in the case

of a supervising pharmacist.

41. Nor do I see this requirement as trenching upon the rights conferred by s.2 of the Pharmacy Act, 1962. It is clear that

pharmacists may continue to act under the terms of the Act of 1962 in circumstances where they are not bound by any contractual

terms such as those relating to the appellants herein. The contract does not purport in any way, nor could it, interfere with the

provisions of the Act of 1962, and in particular s.2 thereof. The purpose of s.2 of the Act of 1962 is to establish a minimum legal and

professional requirement of a pharmacist. It does not mean that the respondents in entering into major contracts for the supply of

pharmaceutical service to eligible persons are not entitled to seek that that pharmacist be one with primary professional responsibility

and having also the appropriate level of experience.

42. In relation to clauses 19(3) and 19(5) which relate to any proposed changes to the agreement, I do not believe it to be

unreasonable that the parties who negotiated the agreement or contract would agree to the possible change in question.

43. With regard to the provisions for termination of the agreement set out in clauses 19(1), 20(1), 22(3) and 22(6), there is

undoubtedly a certain degree of difficulty in reconciling the language of these provisions. However, I am of the view that the learned

trial judge was absolutely correct in the conclusions which he reached about these various provisions and am further of the view that

this court should not act as a “contract review body” to rewrite that which the parties themselves have agreed. It is not a

jurisdiction lightly to be undertaken by the court in the absence of any evidence of significant problems in the operation of the

contract over the last 8 years.

44. In all the circumstances, I would reject all the arguments advanced on behalf of the appellants and confirm the order of the

learned High Court judge made herein.