Hospital successfully challenges Public Inquiry’s refusal to admit expert evidence
In the Petition of the Greater Glasgow Health Board for Judicial Review against The Rt Hon Lord Brodie KC PC, Chairman of the Scottish Hospitals Inquiry [2025] CSOH 12
In a rare successful judicial review of a statutory public inquiry, the Outer House of the Court of Session has held that the Chairman of the Scottish Hospitals Inquiry was wrong to exclude from consideration expert evidence produced on instruction from a Core Participant.
The Case
The Scottish Hospitals Inquiry is a statutory public inquiry into the planning, design, construction, commissioning and maintenance of various hospital sites, including Queen Elizabeth University Hospital, Glasgow (QEUH). The Inquiry was established under the Inquiries Act 2005, and in accordance with that Act the Chair has a broad discretion on procedural and evidential matters. That discretion must be exercised fairly under section 17(3) of the Act.
As is typical for large public inquiries, the Chairman is hearing evidence in tranches. “Glasgow III” concerned whether the ventilation and water systems in the QEUH posed an increased risk of avoidable infections to patients and hence were unsafe. Again as is common, the Chairman instructed a panel of independent experts to assist. Six gave evidence in the Glasgow III hearings, all to the effect that the systems were unsafe.
The Petitioner, the Greater Glasgow Health Board (GGHB) runs QEUH. Shortly before the Glasgow III hearings began, it applied to the Chairman to admit a report that it had instructed from three experts and asked that they be called to give evidence at the Inquiry. The report had been produced to allow legal advice to be given in respect of the Inquiry, a police investigation and civil claims. The three experts instructed by GGHB came to contrary conclusions to those of the six experts instructed by the Inquiry.
The Chairman refused the application. The nature of his ruling was the subject of argument before the Outer House. Counsel for GGHB emphasised the Chairman’s statement that he had “resolved [the matter] at the level of principle” on the basis that allowing the report to be admitted would “abandon the inquisitorial procedure controlled by the chair … and turn it into something like adversarial litigation.” Counsel for the Chairman pointed to a later section of the ruling referring to the practical difficulties inherent in admitting the report, which would have meant that the Glasgow III hearings could not begin on their planned date. This, it was suggested, amounted to a second, self-standing reason for rejecting the application. The Respondent also argued that the challenge was academic as the Chairman had altered his proposed approach to future work by scrapping a plan to give an interim report on Glasgow III; this would allow an application to be made to admit the report at a later date, before any findings were made on relevant issues.
The Outer House upheld the petition for judicial review. It did so principally on the narrow proposition that the Chairman’s “in principle” decision was wrong in law. Admitting evidence from experts instructed by Core Participants rather than the Chairman might be uncommon and discouraged in public inquiries, but it did not transform them from being inquisitorial to being adversarial. The Court considered that this error infected the whole of the Chairman’s ruling and, if not corrected, would also infect any future rulings. As such, it issued a declarator to this effect.
The Court also gave a strong (though technically obiter) indication that it also considered the Chairman’s decision to be unfair and hence contrary to section 17(3) of the Act.
“[33] … Fairness is a substantive requirement applicable to both adversarial and inquisitorial hearings. It includes the obligation, by those exercising an investigative jurisdiction, to listen to any relevant argument and evidence that may conflict with a possible or proposed finding, ‘that a person represented at the inquiry, whose interests (including in that terms [of] career or reputation) may be adversely affected, may wish to place before him’: Mahon v Air New Zealand and Others [1984] AC 808, at 820 … In its application to modern statutory inquiries, fairness demands that they be ‘and be seen by the public to be, as thorough and balanced as possible’: R (Associated Newspapers Limited) v The Rt Hon Lord Justice Leveson [2012] EWHC 57 (Admin), [56]. That will include considering all material evidence on core issues. Once it is known that there is expert evidence on technical and scientific matters available, the conclusions of which are contradictory to that led to date by Inquiry experts, it is difficult to regard its complete exclusion from consideration could be fair.” (emphasis in the original)
On the same theme, the Court found “considerable force” in the argument advanced by GGHB that cross-examination of the Inquiry’s experts without the provision of the contrary expert evidence would be “an inadequate method of challenge” given the complexity and magnitude of the issues.
Discussion
The jockeying for position of the respective parties provides a helpful insight into how best to seek or avoid judicial review of decisions by statutory public inquiries. The Petitioner sought to make the argument about fairness and legal principle. There are two reasons for this. First, there is a specific statutory requirement for an inquiry chair to act fairly, and hence a hook on which to hang a challenge. Second, courts are as well placed as inquiry chairs to determine what is and is not fair in proceedings, and what is and is not correct as a point of legal principle. Hence, they are more likely to identify and act upon errors of law: see Associated Newspapers [46], R v Lord Saville of Newdigate [2000] 1 WLR 1855 [38], and Leveson [47], all cases cite by the Petitioner.
In contrast, the Chairman argued that the decision could be justified on procedural, case management grounds, and that the challenge was academic as the decision could be revisited later and before any findings were made. Running an inquiry is an immensely challenging task, and the courts have emphasised that a chair has a broad discretion on how to do it. Judges at judicial review hearings will not be sighted on all relevant aspects of an inquiry’s work and so will show considerable respect to a chair’s case management decisions, interfering only on the Wednesbury grounds that a decision was incapable of rational justification, or where it offended against the statutory requirements of fairness or openness: see Associated Newspapers [46]. As the Court of Session noted in its judgment, “had the decision [of the Chairman] been made exclusively in the proper exercise of discretion, it would be effectively unassailable” [31].
Here, the Chairman’s decision to ground his determination on an expressly stated point of principle allowed for a direct and successful legal challenge to that statement. Given the Court’s obiter comments, the fairness argument may have prevailed in any event. For inquiry chairs, the lesson may be to avoid such hard-edged decisions and to emphasise the wide discretion chairs must be allowed to run an inquiry as they see fit. For those seeking to challenge statutory inquiries, the task is to manoeuvre the decision onto grounds of principle and fairness in the hope of inviting the courts to enter the fray.
