Answers to the questions we're most frequently asked.
Food Regulatory team
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When do I need to consider getting legal advice?
If you are faced with any kind of enforcement action (be this formal or informal) it is a good idea to seek advice. In our experience the regulator can frequently ask food businesses to take unnecessary and costly steps to “achieve compliance” with the regulations. It is always a good idea to check whether the enforcement action that you are subject to is valid and lawful. For example, as a team we have yet to see a validly served RAN.
Can I challenge an enforcement Notice?
Yes. You usually have 1 month from the date of a Notice to challenge it. This is usually via a civil Appeal in the Magistrates’ Court or First Tier Tribunal. Before issuing a formal Appeal, and to avoid any unnecessary costs, we will write to the relevant regulator setting out why the Notice should be cancelled. If the regulator will not see sense, then a formal Appeal can be issued.
Do I need to attend an interview under caution?
It is not necessary to attend at an interview, but we would always recommend that a response is provided. We usually deal with requests to attend PACE interviews via the preparation of a detailed Written Statement. This allows you to put forward your version of events without the risk of you being tripped up during an interview. We provide a standard fixed fee quote for this work.
Will I be covered on my insurance?
We always recommend that clients check any insurance policy that they have to ascertain whether or not it provides cover for legal fees. Many of our clients do have such cover. The insurers that we deal with understand that this area of law is niche and that as such clients will wish to instruct a firm who has the necessary and specialist skills to deal with their case properly.
Will this affect my business and my reputation forever?
Any enforcement action has the potential to damage the reputation of a business. If you are able to successfully challenge such action then it must be removed from your enforcement record and as a result it can no longer adversely affect your business in terms of its future audits, tendering for business etc. Particularly in the area of animal welfare, where criminal convictions carry a great deal of stigma, it is important to challenge enforcement action where you consider it is unjustified.
Can I recover my costs from the regulator?
The answer is, in some instances yes. If you challenge the regulator via the civil courts for example by challenging the service of a Remedial Action Notice or Hygiene Improvement Notice to the Magistrates’ court, then if you are successful costs will follow the result. If you fail to appeal such a notice and are later prosecuted, then even if you successfully defend that prosecution and are acquitted (i.e. the Court finds that the Notice was not validly served and/or that you were not in breach of the Notice) you will be unable to recover your costs if you are a corporate defendant. If you are an individual or partnership you will be able to recover your costs at legal aid rates meaning that you will only recover a small proportion of your actual costs. The moral of the story is wherever possible challenge the regulator in the civil court. If you do this and if you are successful you will recover your costs from the regulator.
If my employee is accused with an offence, is it worth while defending them?
We tend to see employers and employees being prosecuted in the sphere of animal welfare. Usually the regulator will allege that an employee has done something wrong and as a result both the employee and the employer should face a criminal prosecution. It is important for both the employer and the employee to get legal advice, but frequently it is necessary that this advice is given by two different solicitors’ firms to avoid any potential conflict of interest (where either the employer seeks to blame the employee or vice versa).