Monday, May 2nd, 2016
Chevron Successful in Prohibition Notice Appeal
On 29 April 2016 the First Division issued Opinions in an appeal by HM Inspector of Health & Safety against Chevron North Sea Ltd. Copies of the Opinions can be found here.
In April 2013, an inspector served a Prohibition Notice (under section 22 of the Health & Safety at Work etc Act 1974) on Chevron in respect of the access stairways to the helipad of an offshore installation in the Captain Field of the North Sea. The gratings were said to be corroded so as to render their continued use unsafe. Chevron appealed to the Employment Tribunal, which issued a decision in Chevron’s favour in March 2015. The tribunal relied, inter alia, on evidence presented by Chevron of the results of testing of the gratings, which had been obtained many months after service of the Notice. In so doing, the Tribunal relied on the formulation of the test for such appeals as set out in the judgment of Charles J in the case of Chilcott v Thermal Transfer [2009] EWHC 2086 (Admin) in which evidence coming to light after the service of the Notice could be taken into account by the appellate tribunal. In the meantime, the Court of Appeal issued its judgment in the case of Rotary Yorkshire v Hague [2015] EWCA Civ 696, in which it was said that only such evidence as was available to the inspector (or ought reasonably to have been available) to the inspector at the time the Notice was served fell to be taken into account in determining the appeal.
In the appeal to the Inner House, the appellant principally relied on Rotary. For the respondents, it was argued that Rotary had been wrongly decided and that the scope of an appeal under section 24 of the Act was not limited to a consideration of evidence available to the inspector at the time the Notice was served. In Opinions issued by the Lord President, Lord Carolway, and also by Lords Menzies and Bracadale, the Court unanimously refused the appeal and found in Chevron’s favour. In so doing, the Court held that the scope of an appeal under section 24 is not restricted in the manner contended for by the appellant and as set out in Rotary. Having carefully considered the reasoning set out in Rotary, and the cases relied upon, the Court respectfully disagreed with the approach favoured by the Court of Appeal, as set out in the judgement of Laws LJ:
“The fundamental problem with the approach of Laws LJ is that it prohibits an appeal on the facts in a situation where it can be demonstrated that the facts or information upon which the inspector proceeded were wrong. That is the essence or purpose of many appeals on the facts. In short, there is no sound basis for restricting appeals under section 24 to what would in essence be a form of judicial review of the inspector’s opinion. […]” (per Lord President at para. [28]).
Accordingly, in respect of the Notice appeal provisions of the 1974 Act, which applies throughout Great Britain, there are now conflicting decisions as to the scope and nature of an appeal in Scotland and in England & Wales. It is not yet known whether HSE will seek leave to appeal to the Supreme Court.
Peter Gray QC and Barry Smith of Compass Chambers represented Chevron North Sea Ltd.