Posted by Woods Whur | General, Regulatory, Woods Whur

James and Sarah consider two recent Court of Appeal Hearings and its significance following National Asbestos Awareness Week.

 

Two recent Appeal court hearings have reduced the fines imposed on the defendants for different reasons. Would you benefit from the courts stance?

 

In the first case, a company, London NPS, argued that they should have been treated as a small organisation rather than a large organisation under the Sentencing Guidelines. This would have a direct effect on the fine imposed on them. The Sentencing Guidelines are used by the courts to determine the suitable sentence passed on a defendant. The Court of Appeal ruled in the Appellant’s favour on the basis that each incorporated company is a separate legal entity. This is significant and useful to know when an organisation is operating in a group structure. It shows that the courts will treat the offender as the company that was guilty of the act. The fine was reduced from £370,000 to £50,000 as a result of this. This is not just applicable to asbestos matters, but also health and safety matters as the same considerations apply to company sizes. Smaller companies with larger groups of companies may be protected from paying for subsidiary company’s mistakes.

The second appeal concerned the court’s determination of the level of the “likelihood of harm” in a case appealed by the Squibb Group, again this relates to the Sentencing Guidelines. The court criticised the Judge that sentenced the matter for failing to explain why he had disregarded scientific evidence submitted at the trial by the defendant. The court commented that long term risks of this nature are inheritably difficult to assess and quantify and any estimate must be subject to a wide margin of error. The court went on to say that this is not a reason to reject or disregard whatever scientific evidence is available and a rational approach for a Court to adopt these circumstances is to rely on the best evidence that it has. The court reduced the fine from the likelihood of harm from medium to low and reduced the original £400,000 fine to £190,000. The guidelines set out the seriousness of the offence by considering a number of factors, including harm. The significance of this case is relevant for any business that has had work done and/or obtained reports in respect of asbestos, or indeed other issues, as these assist in cases such as this. As with most things, preparation is the key here and by keeping reports and other documents they could assist many years in the future.

Although asbestos was banned in 1999, it is still present in at least half a million buildings constructed before this time. It is important that companies are aware of their responsibility to manage exposure to asbestos whether it’s by creating an asbestos survey, regularly reviewing any work that is done to a property, and sharing information with those affected by their use/role in the building.

If you are concerned or not sure whether you are responsible for managing asbestos exposure and to what extent in relation to your legal obligations then please contact James or Sarah to discuss.