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Business Crime Solicitors on the perils of fee for intervention

From October 2012 the Health and Safety Executive have been able to send invoices to Health and Safety duty holders whom they believe have committed a material breach. It is reported that invoices issued under the HSE scheme averaged £464 in the programme’s first 6 months, explain our Business Crime Solicitors.

Inspectors issued 5,766 invoices for material breaches totalling almost £2.7 million in the period ending 31 March 2013. Only 2.5% of those invoices were challenged by recipients, the most common claim being that the charge was excessive or the failing did not qualify as a material breach. This shows that either material breaches are being found or that duty holders are making commercial decisions to pay the invoice rather than incurring the expense and time to appeal the findings.

There are inherent dangers in accepting fee for intervention invoices on a commercial basis. One of the inherent dangers is that if in any subsequent investigation or prosecution it may be that the HSE can introduce the material breach as bad character evidence. The payment of the invoice may be seen as an acceptance of that.

Although there may be a number of arguments available to the defence as to the admissibility of the bad character evidence, the risk is present and significant.

Health and Safety duty holders should carefully consider whether it really is in their commercial interests to settle the bill quickly or whether it is in their long term interest to challenge the finding of the material breaches.

The same consideration should be given to FFI invoices as it would be to prohibition or an enforcement notices.

For further information contact Shula de Jersey in London or Craig McAdam in Manchester.