Grosvenor Chemical Ltd v The Health and Safety Executive
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Behrens |
| Judgment Date | 31 January 2013 |
| Neutral Citation | [2013] EWHC 999 (Admin) |
| Docket Number | Case No: CO/1478/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 January 2013 |
[2013] EWHC 999 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
His Honour Judge Behrens
Case No: CO/1478/2012
Mr Toby Riley-Smith (instructed by Metis Law) appeared on behalf of the Claimant.
Miss Katherine Olley (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
This is a challenge by the claimant Grosvenor Chemical Limited ("GCL") against the decision of the Health and Safety's Executive's Level Three Disputes Panel dated 11 November 201It arises out of an explosion which took place on 24 May 2010 in a boiler room on a site owned and occupied by GCL near Huddersfield. That site stored a number of chemicals with the result that it was subject to the provisions of the Control of Major Accident Hazards Regulations 1999 ("the COMAH Regulations"). Under Regulation 19 the competent authority, which is in this case the HSE (the Health and Safety Executive) and the Environment Agency ("the Agency") jointly, have to organise an adequate system of inspections. Furthermore, if either the competent authority or the Agency are informed of a major accident at an establishment, the competent authority is obliged under Regulation 19(4) to carry out a number of tasks, which include carrying out an investigation in relation to the accident. It to be noted that the obligations under 19(4) are quite extensive where there has been such a major accident. It is accepted that the incident in May 2010 was indeed a major accident within that regulation and it is also accepted that there was such an investigation.
Regulation 22, provides:
1. "(1) A fee shall be payable by the operator of an establishment to the Executive for the performance by or on behalf of the competent authority of any function conferred on the authority by these Regulations …
2. […]
3. (3) The fee referred to in paragraphs (1) and (2) shall—
(b) not exceed the sum of the costs reasonably incurred by the competent authority, the Executive or the Agency, as the case may be, for the performance of the functions in relation to the establishment concerned;
(c) be payable within 30 days from the date of the invoice that the Executive has sent or given to the operator such invoice to include a statement of the work done and the cost incurred including the period to which the statement relates."
Regulation 22(4) deals with matters between the Executive, HSE, and the Environment Agency, with which I am not concerned. Subparagraph (5):
"(5) Any fee payable under this regulation shall be recoverable only as a civil debt."
One can immediately see that the provision for recovery as a civil debt is in the same regulation as the regulation which requires the fee not to exceed the sum of the costs reasonably incurred by HSE for the performance of the functions in relation to the relevant establishment.
To my mind, those provisions indicate that the recovery of the debt is a private civil law matter to be recovered in the ordinary civil courts with the result that it is open to the debtor, such as GCL, to raise the question as to whether the fee did indeed exceed the costs reasonably incurred. In other words, there is nothing in Regulation 22 which prevents a defence to the claim based on Regulation 22(3).
The matter does not quite end there, because that does not explain what this case is doing in this Administrative Court. It is because the HSE has published a document headed, "Environment Agency, HSE and Scottish Environment Agency…procedure for queries and disputes for COMAH cost recovery, HSE procedure for queries and disputes for [other matters]". Under paragraph 1 the scope of that document is said to be as follows:
"This procedure is designed to answer queries and resolve disputes arising from the Environmental Agency, HSE and SEPA recovering costs for works carried out under COMAH and HSE recovering costs for work in [relation to] gas transportation… This includes HSE's recovery of costs for relevant statutory provision work in these sectors."
The procedure is divided into three levels. Level one deals with routine queries, and provides in paragraph 4:
"[These routine] queries should be raised by the duty holder as soon as possible after receipt of the invoice and no later than twenty working days.
…
5. HSE will consider queries promptly, and provide the duty holder with a response within ten B of receipt."
Level two arises when the duty holder is not satisfied with the response under level one. Under Level 2 the duty holder may require the query to be referred to a senior manager in the Directorate. The senior manager must set out the reason for the decision taken in writing within a further 15 days.
Then there is a provision which requires the duty holder to pay any part of the invoice which is not in dispute. Level 3 is headed: "References to the Disputes Panel", and it starts:
"If the duty holder is not satisfied with the Level 2 response, the matter may be referred to a 'disputes panel'.
The Disputes Panel comprises of three people, two of which are from the HSE, and the third is an external member. The role of the Disputes Panel is
to consider disputes concerning the charge appearing on the invoice referred to it by the duty holders, and it shall determine, where applicable, whether the work performed by the HSE was a cost recoverable function, whether the work was done in accordance with the HSE's relevant policies and procedures and the costs charged to the duty holder reflect the costs reasonably incurred by cost recoverable work by the HSE.
There is then set out a procedure for the Disputes Panel to work. It is to be noted that paragraph 22 provides that the Disputes Panel conducts its business informally. Under paragraph 24:
"The 'Disputes Panel' [has] power to uphold or reject the complaint, and confirm, vary or cancel the charge in dispute."
Under paragraph 25:
"To vary or cancel a charge, the 'Disputes Panel' must be of the view (on the basis of the information contained in the submissions of HSE, the Agency or the duty holder)
the functions were not in fact costs recoverable; and/or
the charge contained in the invoice did not represent the costs reasonably incurred."
And then it requires the decision to be sent to the duty holder by the Chair within a specified time.
It is important to note that there is nothing in that guidance which provides that the decision of the Disputes Panel is binding on the duty holder, and there is nothing in it to suggest that the decision of the Disputes Panel is in any way intended to oust the jurisdiction of the civil courts in the event that the HSE will choose to enforce the invoice in the only way open to them under Regulation 22(5): that is to say, by enforcement of a civil debt. In those circumstances, and bearing in mind that there needs to be clear words to oust the jurisdiction of the court, I see nothing in this procedure or in this guidance which would prevent a civil court in enforcement proceedings or indeed, if the duty holder wished to do so, in an action commenced by the duty holder for a declaration that the sums claimed were irrecoverable. I see nothing to prevent the civil court determining that issue. It follows, in my view, that there remained and remains open to GCL a route to challenge the invoices
I have not so far set out the facts in this case. Some five invoices were submitted by the Environment Agency to GCL, totalling a grand total of £434,912.98. There was indeed a formal challenge, which went as far as the disputes procedure. A panel was incorporated, and that panel upheld in part the objections. The effect of the panel's decision was that £377,911.38 remained outstanding. This application for judicial review is a challenge to that Disputes Panel, but it was opened to me on the basis that it was an important case because there was no other way to challenge the £378,000. For the reasons that I have given, I am quite satisfied that there is another route to challenge the £378,000. If any attempt is made to enforce it, GCL can seek to defend the invoices on the basis that the costs were not reasonably incurred and thus do not comply with Regulation 22(3). It follows that there is an alternative remedy open to GCL. I do not go any further at this stage.
(submissions from counsel)
I am now invited to dismiss this claim on the grounds that there is an alternative remedy. I have not so far heard detailed oral submissions on that remainder of the claim although I...
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