Fighting back against regulators. Chester Crown Court: the graveyard of regulators?

With fines measures in millions of pounds for organisations breaching health & safety, environmental or fire safety requirements seemingly becoming a regular occurrence - along with increased appetite for custodial sentences for such offences, and Fee For Intervention (“FFI”) increases for Health and Safety Executive (“HSE”) Intervention (HSE Investigations and Fee for Intervention | Weightmans) – the regulators often seem to hold all of the cards.

However, two cases over the last fortnight, both taking place at Chester Crown Court, will have Chester Fire Authority and the Health and Safety Executive (respectively) licking their wounds, and show the benefit fighting back in the right case.

Case Collapses: R (Cheshire Fire Authority) v Avantage (And Others)

On the second day of what was due to be an 8-10 week jury trial at Chester Crown Court, Cheshire Fire Authority was forced to drop all charges against the remaining four defendants relating to a blaze in 2019 that destroyed over 60 homes at a retirement village - Trial over Crewe's Beechmere retirement complex fire collapses - BBC News

The trial collapsed because the fire authority was forced to accept that it had not secured any admissible expert evidence against the defendants – something that had been pleaded by the defendants for some time prior to the trial, but which the prosecution had hitherto failed to accept.

James Muller and Weightmans had previously been involved in this prosecution, but their client had been acquitted at an earlier stage in proceedings, following defence submissions that the case should be dropped.

HSE ordered to pay £587k in defence legal costs: R (HSE) v Falcon Tower Crane Services Ltd

The HSE was ordered to pay £587k to the defendants, Falcon Tower Crane Services Ltd, following the mid-trial collapse of the prosecution case (and consequential acquittal of the defendants) at Chester Crown Court in November 2024. Successful application by Prashant Popat KC and Christopher Adams for the HSE to pay the entire costs of defending failed HSWA prosecution - Henderson Chambers

The judge in the case, HHJ Everett, found that “any prosecutor – carefully considering the detailed but relatively straightforward evidence in this case – should have concluded that a prosecution should not have been commenced.”

Costs were awarded under section 19(1) Prosecution of Offences Act 1985, which allows for the recovery for costs following “unnecessary or improper” acts of a Prosecutor. James Muller, and the Weightmans team, have previously been successful in claiming costs under this provision from the Prosecution in other cases.

Judicial criticism of FFI

However, believe it or not, a loss of £587k might not be the most expensive part of HHJ Everett’s judgment for the HSE. In his judgment, he also made stark criticism of the FFI system, much maligned by businesses, in which the HSE can charge the entire costs of their inspections/investigations to a business (current rate: £183/hr) if they uncover a single instance of what they deem to be a “material breach” of health and safety law within that inspection/investigation. He said:

“I was extremely surprised to learn of this process. Respectfully, it could give rise to, at the very least, an appearance of abuse, because it is a system which could be seen to encourage inspectors to look for extremely minor breaches, where there may be none, simply to cover the costs of any visit. … I would firmly encourage the DWP to reconsider whether this is an approach which is appropriate within a fair and impartial judicial system.”

The HSE’s annual income from FFI is well over £10m per year – but its future is now unclear.