What to do if...
Hannah Leese - Food Regulatory team

Challenging a Remedial Action Notice

“I have been served with a Remedial Action Notice and I want to challenge it. What do I do?”

5 key steps to take when dealing with a Remedial Action Notice (‘RAN’):

  1. Make Notes.  Carefully record exactly what happened in the run up to the service of the Notice.  In particular, note down what was said and done at the time it was served.  It is always a good idea to keep contemporaneous notes and to sign and date them at the time they are made.  This will be invaluable evidence if a formal appeal against the service of the RAN is required.
  2. Time is of the Essence.  You have 1 month to challenge a RAN but if you wish to avoid the costs of a formal appeal and you instead want to follow step 3 (below) time is of the essence.  Even if you think the RAN has been validly served it is still worth picking up the phone to discuss the case with us. In my entire career I have yet to see a validly served RAN! 
  3. Free Half Hour.  Call Roythornes and use your “free half hour”. We are happy to discuss any potential new case. If we can resolve the case for you within 30 minutes, we will not charge any fees. If we believe you need to either take step 4 or 5 we will provide a clear fixed fee for the necessary work and you can take a decision at that time as to whether you wish to instruct us.
  4. Pre-Action Letter.  Frequently in cases of this type we are able to successfully secure the cancellation of a RAN simply by writing to the regulator and explaining why the notice is invalid/unlawful.
  5. Appeal.  If a pre-action letter does not work, then a formal Appeal should be issued in the Magistrates’ Court against the service of the Notice.

Important note

As an Appeal against a RAN is a civil appeal in the Magistrates’ Court costs follow the result. This means that if you are successful the regulator will pay your costs. If you do not appeal the RAN and you are found to be in breach of it then that is a criminal offence.

Although you can challenge the service of a RAN as part of criminal proceedings (that is, even if you do not take steps to Appeal against the notice and are later prosecuted for breaching the RAN, you can still challenge the service as part of those criminal proceedings) but crucially you will not recover your costs even if you are acquitted if you are a limited company. It is nigh on impossible to recover costs for a corporate defendant in criminal proceedings.

An appeal against the RAN is the best mechanism to challenge unjustified or unlawful enforcement action as:

  • You can recover your costs if your Appeal is successful; and
  • A successful Appeal will avoid a costly criminal prosecution.

Case Study: See our case study on the successful work undertaken for a client in the appeal of a Remedial Action Notice (“RAN”) here.

 

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