seekingcounsel THE RIGHT SIDE OF THE LAW Avoidance measures a good way to minimise risk
PERHAPS one of the most frustrating management issues faced by waste operators is when they have to take responsibility for the acts and omissions of their own employees.
Very often, whilst there is no fundamental fault, intentional fault, or blame to be attributed to the directors of a business, the company carries the “can” arising from breaches of waste management or legislation breaches caused by employees.
This often leads to prosecution. In law this is called Vicarious Liability - a concept where someone is held responsible for the actions and omissions of another person.
The classic case faced by waste operators is the circumstance where after investigation, it is found there has been a breach of either Section 33 or 384 of the EPA 1990 - such as depositing waste outside a boundary, or depositing waste contrary to the operators’ own EMS.
Whilst not the most serious offence, prosecution may follow - and this will impact on OPREA ratings, performance, and the consequential cost of licence renewal.
For a company to be held vicariously liable for their employers, it has to be proven the act or omission that created the offence occurred during the course of an employee’s duties, and not in a personal capacity.
Likewise, there is a wealth of case law which is supportive of the proposition that a business may escape liability. This applies where it is found that a sub- contractor caused a problem, though their own acts.
The operator should ask himself what measures can actually put in place to avoid the creation of any offence committed by his employees. Such avoidance measures could include comprehensive training and revision training, stringent EMS, close supervision of employees, and identification of the roles of employees.
Specific delegation of responsibilities to specific employees (perhaps the most important, especially as a defence can be successful if it can be shown an employee was acting in a personal capacity, as opposed to a course of duties).
Whilst avoidance measures may not necessarily prevent either a complaint, or a prosecution, they can mitigate the potential legal effects. These measures can also persuade enforcement agencies any offence committed can be dealt with by way of a notice.
If a prosecution occurs, it is essential to prove some or all of these preventative measures have been taken. This may reduce, in accordance with sentencing guidelines, the culpability of an operator and the category or band of fine relating to the environment agency’s own sentencing guidelines.
Philip W. Jones is a member of New Bailey Chambers in Liverpool, and has been a practicing Counsel for many years. He was previously employed by the Environment Agency as a lawyer, and now heads a practice on regulatory, environmental and planning issue matters. He regularly represents waste operators, in particular smaller scale operations, before civil and criminal courts plus planning inquiries.
Delaying specialist advice is never a good idea
A frequent area of concern for Companies and Directors is the crucial matter of getting the right advice at the right time.
The effect of an issue dragging on or being ignored can not only have an effect on business, but can also lead to potential enforcement and regulatory issues later on.
I came across a company recently which needed the appropriate consents from the Water Authority, and had complied with the relevant timetables. They then encountered a delay and it became clear that further delay was inevitable.
Having liaised with the experts involved, it became apparent a temporary arrangement (to avoid further delays) was the way forward. The use of lawyers to assist the company (by helping consultants in preparing a structured response) was really what was required.
Having discussed matters with consultants and having been made aware of the Companies position at the outset from earlier dealings, it was possible to suggest a more robust legal approach to the matter. This allowed the company to reach
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the required result, without involving substantial costs or any risk of prosecution.
Unfortunately, firms are put off contacting a solicitor directly because of the terms of their insurance cover, and the requirement the Insurance Company imposes to seek advice from a panel solicitor.
This can cause a delay in obtaining specialist advice, and even exacerbate a problem with the Regulator. It is important for an individual company to be aware it is their right to instruct a solicitor of choice.
In some cases, where substantial amounts of work have been undertaken by the company the expert and the lawyer in investigating the background of the matter or taking steps to avoid or mitigate a prosecution there can still be a prosecution or enforcement action
It is essential clients are aware they have a choice to instruct their own solicitor before engaging a panel lawyer under a legal expenses insurance contract. A lot of time and money is wasted waiting for this to be resolved by the Insurer, when a call to a lawyer could have been made earlier.
The decision in Brown-Quinn v Equity Syndicate Management (2012) confirmed the approach of the courts to the refusal by insurers to accept non-panel lawyers, and the need to comply with the Insurance Companies(Legal Expenses Insurance) Regulations 1990.
This states: ”where under a legal expenses insurance contract recourse is had to a
lawyer..to defend, represent or serve the interests of the insured in any enquiry or proceedings, the insured shall be free to choose that
lawyer...the above right shall be expressly recognised in that policy.”
This means businesses clearly have the option to obtain specialist advice of their own choosing.
Dominic McNabb is a solicitor in private practice with MJP solicitors, and has over 20 years’ experience defending individuals and companies, in criminal and regulatory matters. Contact him: 0773 3264226 skiphireanswers@
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