As the cost of living and running your business continue to rise, it can be tempting to try to challenge any enforcement action by local authorities, the Food Standards Agency, the Environment Agency and other regulators by yourself without the benefit of legal advice. Instructing a solicitor is after all expensive. We find that it is usually more cost effective to get legal advice right at the beginning, than to wait to instruct us until you are knee deep in legal jargon and court deadlines.
Below Rebecca Ironmonger from our Regulatory Team sets out the common mistakes lay clients make when challenging enforcement action without first getting legal advice.
- Believing the regulator is right - Contrary to popular belief, the Government, be that local or national, is not always right. In fact, they frequently get the facts and the law wrong when enforcing the regulations. Be that the interpretation of a new legal requirement, the method of service, the (mis)use of their powers and misunderstanding the facts or the realities of your situation or business. It is always worth getting a second opinion on anything the regulator requires you to do, particularly if what they are asking is new or does not sound quite right and definitely where what they are asking will involve significant expense.
- Not challenging a decision early enough - We regularly advise clients who are being prosecuted for a breach of the regulations, when they had an opportunity to challenge enforcement action taken soon after the alleged incident but did not do anything to oppose that action at the time. For example, a breach of an enforcement notice is a criminal offence. You can be prosecuted for both the original underlying breach and the breach of the notice which was served because of that original breach. If the notice had been successfully challenged at the time it was served, then no prosecution would or could have followed.
- Making the wrong appeal or application under the wrong rules or in the wrong Court - Regulatory law is complex by nature, and this runs through the appeal process as well. There are three main forums where decisions of regulators can be challenged. These are the Tribunal, the Magistrates’ Court and the High Court. Each have a different process, different rules and different powers. If an appeal or challenge is made in the wrong court it will be thrown out and if you are not told by the court early enough, you could miss the deadline for applying to the correct court. As the different courts have different powers, they each require you to apply for an order that they have the power to make.
- Only challenging the decision on the fact - We have yet to see a fully and legally valid notice served by a regulator. There are often legal arguments that can be made when challenging a decision or notice, which will increase the likelihood of you succeeding in overturning or amending the decision you are challenging. Challenging a decision purely on the facts will mean your challenge will ultimately come down to who the judge believes. Sadly, the regulator is given a huge discretion by the Courts and this means a challenge on the facts alone can be difficult.
- Not framing your argument in the most effective way - The same core ground of challenge can be drafted in several different ways, with some being more effective and persuasive than others.
- There might be other routes of challenge which you have not thought of - Sometimes, a simple pre-action letter explaining why the regulator got it wrong will be enough to get them to withdraw their decision. Often the instruction of solicitors is enough to make a regulator re-think. In my experience, the threat of a formal challenge via a specialist solicitor, can often lead to the enforcement action, whatever that may be, being withdrawn.
The best way to protect yourself and your business if you are faced with enforcement action by the Regulator is to get specialist legal advice as soon as possible. Our regulatory team is able to provide specialist and expert advice for individuals and businesses who are the subject of enforcement action. If we can resolve your query within 30 minutes there is no charge.