Pre-action disclosure (Norwich Pharmacal Order)
HSE will ordinarily object to the disclosure of any information that relates to an ongoing investigation into a workplace health and safety incident, or a live criminal prosecution for breaches of health and safety law. This objection would be based on the assertion that disclosure may:
- Prejudice HSE’s ability to pursue appropriate enforcement action, and
- Prejudice the rights of a suspect to a fair trial in the criminal courts
However, where HSE’s operational interests have concluded, we will typically not object to the disclosure of information at the pre-action stage (i.e. prior to any civil proceedings being initiated) where the court order is limited to the following document categories (subject to a PII assessment);
- Unredacted copy of the RIDDOR Form
- Factual elements of HSE’s investigation report
- Photographs taken as part of the investigation (including any CCTV footage)
- Unredacted copies of witness statements (this will not include material exhibited by the witness as to do so is likely to unnecessarily increase costs, nor will it include the ‘witness details page containing the contact details of the witness)
- Relevant specialist/expert reports
Making an application
To make an application for pre-action disclosure of the above document categories,we suggest you refer to this Draft Pre-Action Disclosure Order and send it with your application to the appropriate court (England and Wales only). Failure to use the terms of the draft order may lead to objections, possible additional costs and delay to your application.
Once your order has been approved by the court (i.e. it has the court seal), you should then send a scanned copy to [email protected]. Alternatively, you can send the sealed order to the following address ensuring you use recorded delivery;
Central Disclosure Team
On receipt of your sealed court order, HSE will have 28 days to respond. At this point, HSE will;
- Locate and retrieve the information that is deemed within the scope of the order
- Compile a document schedule to confirm what records were requested, and what records HSE holds
- Conduct a Public Interest Immunity assessment to determine whether any documents should be withheld in the broader public interest,
Once the disclosure bundle has been prepared, HSE will issue a schedule of costs to the Requester. This will provide a full breakdown of the costs incurred by HSE in dealing with and responding to the court order. The schedule of costs will be issued to the Requester within the 28-day deadline.
Within 7 days of receipt of payment, the document schedule and all disclosable records will be issued to the Requester via email.