By Michael Appleby
HSE is appealing to the Court of Appeal over the High Court’s ruling in the recent case of Hague v Rotary Yorkshire Limited [2014] EWHC 2126 (Admin) where a prohibition notice was cancelled (see SHP on-line blog: Challenging a Prohibition Notice).
At one time it was thought that the only challenge to a prohibition notice was whether an inspector reasonably believed there was a risk of serious personal injury on the evidence available at the time. The case of Chillcott v Thermal Transfer Ltd [2010] EWHC 2086 (Admin) ruled that evidence not necessarily available to the inspector at the time could also be taken into account in any challenge.
In the Rotary Yorkshire case a prohibition notice was served following an unannounced inspection of a high voltage room in the Leeds Arena when the inspector observed exposed conductors at the rear of a switchboard. The notice was issued because the company was unable to prove on the day that the conductors were dead. The next day, an authorised person tested the equipment and confirmed that the equipment was in fact dead and could not be energised.
The judge accepted a prohibition notice appearing on HSE’s enforcement database could result in commercial disadvantage to a company. He said the inspector could have used her powers under section 20(2)(e) of the Health and Safety at Work etc. Act 1974 requiring the area to be left undisturbed until the test could be carried out.
A case considering the application of the powers of HSE inspectors to issue improvement and prohibition notices has not come before the Court of Appeal previously and so it may be an opportunity for the court to look wider than the circumstances of this particular case and set out guidelines. If so, these guidelines may be relevant not only to the serving of notices but also may have some bearing upon how a material breach is determined for the purposes of the Fee for Intervention costs recovery scheme.
Mike Appleby is a partner in London firm, Bivonas Law
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The court appears to be telling HSE to use powers for a purpose they were not intended. s20 gives powers to inspectors and section 20(2)(e) has always been seen as a power to prevent interference with an investigation or inspection. s22 (Prohibition Notices) is obviously the right – most relevant – legislation to use in the case of danger. All best wishes to HSE in their appeal.
Entirely agree. S20(2)(e) is the power to require the scene to be left undisturbed. It does not prohibit an unsafe activity. Better to be criticized for doing something that you believe is correct where there is a significant risk e.g. death. It will be interesting to see how this pans out