Legislation update – FAQs

Ron Reid, partner at Shoosmith’s solicitors, took part in a legislation webinar earlier this week. He answers your questions.

Are no-win, no-fee claims going to be impossible now?

No, they can still be undertaken. Whether or not anybody is going to undertake them, with the uncertainty that surrounds the ability to get back the cost of doing so, is perhaps another question.

Is the change in strict liability going to lead to lengthier and more expensive litigation?

It’s a tricky one. I think there will probably be some test cases done on the legislation of strict liability. For example, the Association of Personal Injury Lawyers feel this removal may be a breach of the EU directive, in which case challenges may be made.

If it stays as intended and removes strict liability — meaning that negligence has to be proved — then of course, longer trials may take place.

Within what time frames do specified injuries need to be reported?

Under RIDDOR, it will be 15 days, when it was previously 10. Only serious accidents need to be reported immediately, such as fatalities.

Will there be any potential effect on cases covered by legal privilege?

When an accident occurs, and you undertake an accident investigation report, it is now increasingly likely that the authorities are going to ask to see that document.

This will determine their response. For example, do they need to attend the site immediately? What helps them make that decision is what is down on that report.

Legal privilege, therefore, does not come into effect in relation to that document (the accident investigation report), unless it was bought into existence before the investigation took place, and you knew there would be a claim and instigated the resources of a lawyer.

It is important to realise, however, that the purpose of the accident investigation report is to defend you in any claim for litigation, so you will have a problem hanging onto any legal privilege. And, as they say, it will be used in evidence against you.

How likely is it to challenge the FFI?

It is possible, although you should be very careful when going through this process. Challenging is worthwhile, although you need to be on sure footing and it can be quite expensive should you need to bring in the help of lawyers.

Does the safety representative have a right to accompany the FFI inspector?

Yes, if they are appointed under the 1997 regulations, and it is certainly good practice. However, they shouldn’t necessarily be the person who is speaking on behalf of the organisation/owner of the site.

Of course, the safety representative has every right to speak to the inspector. Often, the inspectors will want to speak to them anyway.

This relationship with the inspector is extremely important, whether or not there is a material breach. Ultimately it is the inspector’s decision if FFI is triggered, he has the final say.

Is the removal of the CDM-C role and ACoP a step backwards?

It is difficult to say at the moment as we haven’t seen it yet, but it depends on what they are intending to replace it with.

Is there going to be a review of the EU source directive for CDM?

No, but occasionally one thing may lead to another. It is possible that the CDM regulations will change and then someone will challenge the fact that the new regulations are not in accordance with the EU directive.

How rare are joint inspections these days?

Not as rare as you might think. There is often crossover with the HSE and local authorities, and of course within COMAH, when the HSE will work closely with the environment agency.

Is the Löfstedt review simply not red-tape to remove supposed red-tape?

No, I don’t think it is red-tape. It is merely an attempt to remove all the red-tape within the industry.

I think we have to give some credit here. The report has had a surprising amount of traction. Many people thought that the industry would not be able to make his recommendations, and certainly not within the time limits, but they have. They have made remarkable progress.

Most of the ACoPs have been looked at; most of the guidance has been reviewed. The challenge lies in spotting those changes. Unfortunately people seem to only look at the guidance when they need to rather than pro-actively.

How straightforward is it changing an ACoP?

At the very core, it depends on the regulations. What the HSE are trying to do — and in line with Löfstedt’s review — is to simplify them.

I think the recent changes to the legionella ACoPs show this simplification, however for such complex subject such as asbestos, there isn’t a huge amount that can be trimmed down. Again, it is very important that people get to grips with the subject and understand the guidance.

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