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July 6, 2010

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Ruling on legal costs could see HSE shy away from prosecution

Companies facing prosecution by the Health & Safety Executive (HSE) can take some comfort from a recent High Court decision, writes lawyer Bob Davies.

Serving its judgement on R (On the application of The Law Society) v The Lord Chancellor, the High Court declared that the lord chancellor’s scheme of capping the recovery of an acquitted defendant’s costs to legal-aid rates was unlawful.

Had the scheme, which came into force on 31 October 2009, not been declared illegal, a defendant that had successfully defended an HSE prosecution could have faced recovering its defence costs at an amount significantly below those that it had actually incurred.

However, the High Court’s decision restores a court’s power to award a successful defendant an amount of costs which “the court considers to be reasonably sufficient to compensate the defendant for any expenses which he has properly incurred in the proceedings”. This ensures that a defendant’s costs order (DCO), which an acquitted defendant is entitled to, is paid at market rates and reflects the true cost of the litigation.

Any DCO will have to be met out of public funds, so in an era when intense pressure is going to be applied to public funding, the HSE is going to face stern criticism if several of its prosecutions turn out to have little or no merit. Consequently, this could lead to the HSE taking a less aggressive approach and less keen to prosecute in the more risky cases.

However, it is not known at this stage whether the Government will accept the High Court’s decision, and the health and safety arena waits with bated breath to see whether it will appeal.

Bob Davies is an associate at law firm Berrymans Lace Mawer LLP.

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13 years ago

It seems perfectly reasonable to me that an innocent person or comnpany should be able to recover their actual costs.
The HSE should be sure of their facts before prosecuting after all they already have a reversal of the normal burden of proof to help them.

13 years ago

I don’t see the angle here – this merely reverts us to the same position we have always been in. A non-story.

13 years ago

I think this ruling is fair and reasonable. No duty holder should be made to pay for a regulator’s mistake.