As discussed in our previous article the Supreme Court’s decision in the case of HSE v Chevron North Sea Limited (“Chevron”) provided useful clarity as to the approach to be taken on the appeal of an enforcement notice. In short, the appeal is one of the notice itself rather than of the inspector’s opinion at the time of service. The Court held therefore that evidence not known at the time of service of the notice can validly be considered in an appeal of that notice.
The Supreme Court highlighted their view that Inspectors should not feel inhibited by this clarification, as their decisions could be corrected where new information demonstrated that no material risk existed. However, as we suspected, recent HSE statistics show a drop in the number of enforcement notices served. With the Chevron case being heard in the middle of 2017/2018, the figures suggest the case has already had an impact with 8942 notices served in 2017/2018 compared to the 9507 in the previous year.
Businesses will no doubt welcome additional caution from the HSE, given the considerable commercial, financial and reputational issues that the service of a notice can cause.
Furthermore, businesses should also be encouraged by the ability of a Tribunal to undertake a more complete review of the evidence relating to a notice. Serious consideration should be given to the benefits of an appeal – especially as the HSE could seek to rely on an enforcement notice in a future prosecution.
Looking to 2019, businesses should bear in mind that enforcement notices inhabit a slightly different landscape than they did a year ago. Firstly, such notices should be rarer, as the HSE are more likely to engage informally in borderline cases where the risk of serious injury is not obvious. Secondly, full consideration should be given to material that could support an appeal including additional lines of enquiry or expert evidence that were not available when the notice was served.
Sadly, as with many court judgments, Chevron does not resolve everything. There is still a grey area relating to who bears the costs of a successful appeal. It would be wise to give thought to early communication with the HSE about new information casting doubt on a notice as this may well strengthen the costs position on appeal.