The Test to be applied
1. Where the Inspector’s decision is appealed the Tribunal is not limited to reviewing the genuineness and/or reasonableness of the Inspector’s opinions. It is required to form its own view paying due weight to the Inspector’s expertise. The test is not the judicial review test as to whether the decision was reasonable. The Tribunal should focus on the point at which the notice was served rather than look at the situation with the benefit of hindsight. Their task is to decide what they would had done at that point in time.
What the Tribunal can do
2. The Tribunal may either cancel or affirm the Notice. If it affirms the Notice it may do so either in its original form or with such modifications as the Tribunal may, in the circumstances, think fit.1 In essence any technical difficulty with the Notice should lead to an amendment so that the Notice can be supported.
3. Where the Notice has been suspended until after the appeal is determined, the date for completion may have passed by that time. If it is then not possible for work to be completed in time the Tribunal will consider modifying the date and the inspector will need to inform the Tribunal of his opinion in relation to the risk.
4. The Tribunal shall consider whether to make a costs order where a party (or that party’s representative) has acted ‘vexatiously, abusively, disruptively or otherwise unreasonably in the bringing of the proceedings (or part) or in the way the proceedings (or part) have been conducted or if any claim or response had no reasonable prospect of success’. Before costs are considered one of these alternative grounds must be proved.
5. Each of these alternatives has developed its own case law and your lawyer will advise whether a ground for applying for costs exists. In practice the most likely ground for the Tribunal to consider making a costs order is if it can be proved there were no reasonable prospects of success. However it is not going to be straightforward to establish that bringing or continuing with a notice appeal had no prospect of success.
6. If costs are ordered the Tribunal now has power to order an amount not exceeding £20,000. Where a Tribunal deems costs in excess of £20,000 are appropriate, it can either refer the matter to the relevant civil courts for resolution, or where it deems itself competent, make the assessment of costs applying the same principles that would be applied in the civil court.
7. There is now a time limit to meet when an application for costs is made. A party may apply for costs at any stage up to 28 days after the judgment date. If judgment is given at the end of the hearing then that date will be the trigger unless written reasons are requested. If the judgment is reserved and then sent by post to the parties then the trigger date will be the date the judgment and reasons was sent to the parties.
MWH UK Limited v Wise (2014) EWHC 427 The tribunal had the power to make modifications, under s.82. It had to put itself in the putative position of the inspector and decide what improvement notice was justified, before deciding whether to affirm, modify or cancel the notice. Here the tribunal was bound to consider modification of the notice in the way it considered was best suited to promoting future health and safety, by reference to its conclusions on the cause of the breach. Back