Food Regulatory Solicitors

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.

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. 

It is not necessary to attend 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.

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 that has the necessary and specialist skills to deal with their case properly. 

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 unjustified.

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 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.   

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 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).

1. Make Notes - receiving a Court summons is worrying and stressful.

2. Read the Court Documents - take the time to read the Summons and Advance Disclosure Bundle carefully. It is important that you understand what the regulator is alleging. Note down any upcoming hearing dates.

3. Free Half Hour - use your free half-hour and call our specialist team. 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 consider that formal instruction is required we will provide you with clear information on our fixed fee costs.

4. Available Defences - we will advise upon whether there are any defences available and crucially whether there are any legal arguments that can be run which if successful will bring the proceedings to an end.

5. Mitigation - if there is no factual defence and no available legal arguments then we will assist you in putting forward the best mitigation with a view to keeping any penalty imposed to a minimum. 

In our experience, there are frequently defences available to prosecutions in respect of food hygiene, food safety and animal welfare. The penalty in the event of conviction is an unlimited fine. It is therefore very important to secure the best legal advice. This will ensure that all available defences are identified from the outset. In addition, in the unfortunate event of a conviction, your specialist solicitors will put forward mitigation on your behalf so as to keep any financial penalty to a minimum.

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.

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

1. Make Notes - carefully record exactly what happened in the run-up to the service of the HEPN and hearing where the HEPO was made. In particular, note down what was said and done at the time it was served and what factors contributed to the Magistrates’ decision to grant a HEPO. 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 for the application for a certificate and any subsequent appeal.

2. Time is of the Essence - when a HEPN is served and HEPO is made by the Magistrates Court, your business is closed down and unable to operate until the Regulator is satisfied that there is no longer an imminent risk of injury to health. The sooner you make changes, the sooner you can get back up and running. The Regulator can take 14 days to make a decision once you apply for a certificate.

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. Apply for a Certificate - for a HEPO to cease to have effect you need to make any changes or improvements which contributed to the Regulator’s and the Magistrates’ decision that there was an imminent risk of injury to health and then receive a certificate from the regulator confirming that there is no longer an imminent risk. Either the regulator will serve the same of its own accord, or more commonly, you will need to apply for a certificate.

5. Appeal - if the regulator refuses to issue a certificate, then you can appeal the decision to the Magistrates Court within one month of the decision to refuse.

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. 

As an Appeal against a RAN is a civil appeal in the Magistrates’ Court costs follows 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) 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.

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 for the hearing.

2. Time is of the Essence - when a HEPN is served, the officer must apply to the Magistrates Court for a Hygiene Emergency Prohibition Order (“HEPO”) within 3 days of the service of the HEPN, and usually a hearing will be listed within 7 days. This does not leave much time to prepare your case.

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. In the case of the service of a HEPN we are extremely unlikely to be able to resolve the matter for you within the “free half hour” but we will be able to provide you with a strategy and a fixed fee quote within this time.

4. Consider the Defences - the defences against HEPNs are not always factual (i.e. the Regulator was wrong about a particular hygiene problem or it has already been rectified), there can also be legal defences. Our specialist legal team will be able to draw out the possible legal defences such as if the HEPN was not validly served or the risk requirements not satisfied.

5. Hearing - If the regulator has not withdrawn the HEPN before the hearing, it will be necessary to attend the Magistrates Court to defend the regulator’s application for a HEPO. 

If at the hearing in the Magistrates Court, the Magistrate is not satisfied that there is an imminent risk of injury to health due to the conditions at the premises, the HEPN ceases to have effect and the Regulator must compensate the FBO in respect of any loss suffered by complying with the HEPN i.e. loss of business while closed down, legal costs in relation to the application. If you are found to be in breach of the HEPN then that is a criminal offence. For example by continuing to operate while the HEPN is in force.

1. Don’t panic - receiving a letter inviting you to attend an interview under caution is extremely stressful, particularly where you feel you have not committed any offence.

2. Review the Letter - carefully read the correspondence and consider what information and documents are relevant to the matters that are alleged. Note these down for your records.

3. Time is of the Essence - it will take time to consider the allegations and prepare a suitable response so it is important that you act quickly.

4. Free Half Hour - call Roythornes and use your free half-hour. If we are able to resolve your query within 30 minutes we will not charge you for our time. If we believe that formal instruction is required, we will provide you with clear information on our fixed fee costs.

5. Written statement - we have extensive experience in responding to requests for interviews under caution and we usually recommend that this is done via a written statement (as opposed to attendance at an actual interview). This is your opportunity to set out why you have not committed any offence and why it would not be in the public interest to prosecute you. We will draft the written statement on your behalf but we will need you to assist by providing any information and/or documentation to us that you consider is relevant.

A carefully prepared Written Statement could prevent criminal prosecution. In addition, the Court is entitled to draw adverse inferences if you do not mention when questioned something which you later rely on in Court. It is therefore important that anything that you do intend to rely upon in your defence is set out (if possible) at the outset.

If you are faced with an abatement notice, there are five key steps you should take:

1. Do not panic. Gather all evidence and any notes you have in relation to the issue. In particular what happened in the lead up to the service of the notice and what happened on the date of service.

2. Get legal advice, time is of the essence. You only have 21 days to appeal the notice. Our regulatory team has extensive experience and expertise in challenging notices served by the Environment Agency and local authorities. We offer a free half hour. We are happy to discuss and if we can solve your issue in 30 minutes we will not charge you.

3. Take steps to comply. In the meantime while you are getting legal advice and exploring options for a pre-action letter and starting an appeal, if you can, you should try to take steps to comply with the notice, as every breach of the notice is a criminal offence.

4. Pre-action letter. Often regulators can be overzealous and produce invalid and/or unlawful notices. Frequently we are able to secure the withdrawal or cancellation of an abatement notice simply by writing to the regulator and explaining why the notice is wrong in fact or law.

5. Appeal. If the pre-action letter does not work, then a formal Appeal should be issued in the Magistrates’ Court against the notice, by way of a complaint for an order to cancel the notice.