England and Wales High Court (Administrative Court) Decisions

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
		31st January 2013

His Honour Judge Behrens:

1. 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 2011. It 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.
2. 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."

3. 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.
4. 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).
5. 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."

6. 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.

7. 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.

8. 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.

9. 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
10. 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)

11. 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 have read the detailed submissions both in the amended grounds and the amended summary grounds in relation to the challenge to the panel's decision. I have not formed any view on those submissions. Thus, the only matter that is before me at the moment is the question of whether the existence of the alternative remedy is sufficient to defeat the judicial review claim.
12. I have helpfully been referred to two cases. One is a decision of the House of Lords, and in particular part of the speech of Lord Oliver in Leech v Deputy Governor of Parkhurst Prison [1988] 2 WLR 290 and I was in particular, I think, referred to a passage at 580C, where Lord Oliver said this:

"But even assuming that the section has the effect suggested, it does not, to my mind, really touch the central question. An alternative remedy for abuse or excess, whether effective or not, may be a factor, and a very weighty factor, in the assessment of whether the discretion which the court undoubtedly has to grant or refuse judicial review should be exercised. But it cannot, as I see it, bear on the question of the existence of the jurisdiction."

13. Lord Oliver is, therefore, saying that the existence of an alternative remedy is not conclusive, but it is a factor, and possibly a very weighty factor, in the exercise of the court's discretion. I was also taken to a decision of Silber J in a case called C v The Financial Services Authority [2012] EWHC 1417 (Admin), reported I think on 25 May 2012, where he considers the question of an alternative remedy, and in particular he summarises his conclusion in paragraph 89. After referring to a number of authorities, he says this:

"These cases show (a) that judicial review will not be granted where there is an alternative remedy available as long as it is in Lord Widgery's words in the Royco case 'equally effective and convenient' or in Taylor LJ's words in Ferrero 'suitable to determine" the issue and (b) judicial review can be brought where the alternative remedy is in Lord Denning's words in the Peachey case 'nowhere near so convenient, beneficial and effectual"."

As I say, that summary was after the consideration of a number of cases. I am content to adopt it for the purpose of this case.

14. The position here is that, if there are civil proceedings, the court will be able to look at any submissions that are made in relation to the costs incurred by HSE. The court, of course, is an independent tribunal. If I were to grant the application for judicial review and return the matter back to another panel, that, in my view, is not as effective as having the matter determined by the court. Firstly, as I have already noted, the panel is not an independent panel. It has one independent member on it, but that does not make it an independent panel, so that the views expressed are predominantly the views of the HSE, no doubt by experienced members of the HSE but still predominantly members of the HSE. And, secondly, even if the panel did produce a view, it is still going to be open to the company, GCL, to challenge the figures in a subsequent court procedure.
15. In my view, to return the matter to another panel gains nothing, and I say that because I also have considerable doubts as to whether the decision of the panel is in fact something which is subject to judicial review in any event. It seems to me to be a private law quasi-alternative dispute resolution procedure in relation to a fee which is recoverable by way of private law proceedings. I am completely satisfied that procedure through the courts is equally effective, indeed more effective and convenient, for the purpose of dispensing with this particular dispute, which is how much the GCL owed to the HSE in respect of the investigation they carried out at that fire. It seems to me to be completely pointless to refer the matter back to another panel, which will simply add to delay and probably to the expense.
16. In my view, therefore, this is a case where judicial review should not be granted, I would refuse this application.

1. Miss Olley: My Lord, I am grateful. I do have an application for my client's costs, whether they be assessed if not agreed or dealt with summarily by your Lordship, I am in your Lordship's hands.

2. Mr Riley-Smith: My Lord, I thank you for entertaining my submissions, and I will therefore try and keep them as short as possible. My Lord, both parties, as I understand matters, had not conceded this point before this morning. I read and re-read my learned friend's skeleton argument. The point was not taken specifically, either in the amended grounds, detailed (inaudible) defence, or summary grounds defence, nor in the skeleton argument. Therefore, the claim has been dismissed upon a basis that was not apprehended by either of the parties before you. I think that is a powerful factor, in my submission, that that would justify in making no order as to costs in this case.

3. (costs judgment)

4. His Honour Judge Behrens: Thank you very much. The position here is, firstly, that the claim has failed, so the ordinary rule is costs follow the event. Mr Riley-Smith submits that the costs should not follow the event in this case, because, as he submits, nobody thought of the point before today. It is true that it is not a point that Mr Riley-Smith had appreciated was being taken, but Miss Olley makes it clear to me that firstly, she had seen the point, in the sense that she specifically submitted that there was an alternative remedy. The only criticism of Miss Olley, if I may put it this way, is that, although she had taken the point, she did not take it so clearly that either Mr Riley-Smith or myself when I pre-read the case understood it as the way that she was putting it. But it is correct to say that her skeleton argument, and indeed the amended summary grounds, do say that it is open to them to challenge the size of the claim, and those words do, if one thinks about them, make it clear that the size is open to challenge in the courts. I take the view that the criticism that can be made of Miss Olley's pleading, if I put it that way, is not sufficient to deny the defendant the usual remedy, their order for costs. In those circumstances, I propose to make an order that the claimant pay the defendant's costs.

5. His Honour Judge Behrens: Then the next question is, am I supposed to summarily assess them?

6. Miss Olley: I am in your Lordship's hands on that. They are in the schedule.

7. His Honour Judge Behrens: I have got a schedule, but I have not read it.

8. Miss Olley: I think it is roughly half the size of the claimant's costs.

9. His Honour Judge Behrens: Yes, I know it is. I am in your hands. My understanding of the position, but I am sure I am going to be told I am wrong, is that even though this is an administrative review that took less than a day, I have a power to do it, but I am not required to.

10. Miss Olley: I think that is right, my Lord. It may be convenient to --

11. His Honour Judge Behrens: But on the other hand, well I am slightly in your hands, Mr Riley-Smith, have you seen this schedule?

12. Mr Riley-Smith: I have. I am instructed that we would be with your Lordship, and inclined to allow us to get a detailed assessment.

13. His Honour Judge Behrens: Fine, if we go to detailed assessment, but you want interim payment, no doubt? How much interim payment do you want?

14. Miss Olley: May I take instructions?

15. His Honour Judge Behrens: Yes.

16. (pause)

17. Miss Olley: It is a bit rough and ready, but we would propose half, on the basis that we are already half of the claimant's asserted reasonable costs, so it is hopefully fair to them.

18. His Honour Judge Behrens: I think that is pretty fair, I do not think they can resist half, which is --

19. Mr Riley-Smith: My Lord, I do not seek to resist that.

20. His Honour Judge Behrens: No that is, if I may so, a very fair suggestion. The only problem is, can you divide £27,480 by 2?

21. Miss Olley: £13740? I am not sure.

22. His Honour Judge Behrens: Shall we round it down? I am going to make it £13,700 for an interim payment, otherwise it will look as if I have done it too accurately.

23. Mr Riley-Smith: My Lord, may we ask for 28 days to pay that?

24. His Honour Judge Behrens: Any problem with 28 days? Of course, when people ask for it, I point that you get interest at 8 per cent for those 28 days.

25. Miss Olley: Absolutely, my Lord.

26. His Honour Judge Behrens: But it seems to me you can have 28 days.

27. Mr Riley-Smith: I am very grateful.

28. His Honour Judge Behrens: Thank you very much. Any other applications?

29. Mr Riley-Smith: My Lord, yes, may I seek your Lordship's permission to appeal your ruling, the last ruling.

30. His Honour Judge Behrens: Yes, thank you very much. Anything you want to say about that, Miss Olley?

31. Miss Olley: Well, I wonder if there has been a misunderstanding as to these cases. If there is an alternative remedy asserted the claimant can say, "Although I have got an alternative remedy, it would not be as effective and effectual, so I would like to go ahead anyway" But in circumstances where we are not going ahead, I do not understand the basis of the arguments that were put to your Lordship.

32. His Honour Judge Behrens: I think you will have to go elsewhere, Mr Riley-Smith.

33. Mr Riley-Smith: My Lord, I am very grateful.

34. His Honour Judge Behrens: I will do one of those forms.

35. Mr Riley-Smith: I would be grateful if you did.

36. His Honour Judge Behrens: And I will email it probably to someone.

37. Mr Riley-Smith: We will leave an appropriate email address.

38. His Honour Judge Behrens: Yes, well have we not an email address from somewhere? Anyhow, you can get an email address. I will in fact email it to the Administrative Court Office, Mr Waring, and he will forward it to anybody that you want it to be forwarded. Thank you very much.

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