Health, Safety & Environmental Law

The Environment Group undertakes all work in this field including prosecution and defence work in the criminal courts, statutory appeals, scientifically complex nuisance and personal injury claims, major group litigation and judicial review. Members have extensive experience of dealing with experts in technically complicated cases and of managing group litigation.

Abatement notices
We regularly deal with abatement notices in the Magistrates’ Court in respect of noise, dust, smoke and odour and have also been concerned with prosecutions under section 82 of the Environmental Protection Act 1990.

Chemical/personal injuries
We can advise on personal injury claims whether resulting from:

• Chemical exposure
• Land contamination
• Arsenic poisoning of groundwater
• Foot and mouth disease claims
• General allegations of injury from dust and odour.

Contaminated land
Land contamination, whether from oil leaks from domestic storage tanks or chemicals from larger installations, gives rise to complex legal and technical issues. For example, if oil has leaked from a petrol station and is alleged to have contaminated land over a mile away, a pathway has to be established for the oil from the station to the land. The type of oil at the affected land has to be shown to be the same type as that used at the station at the time of the alleged leak. While this is mainly established through expert evidence, claimants and defendants need a barrister who can understand that evidence.

Fishing/navigation rights
Fishing claims will concern property rights. While a defendant is very unlikely to establish a right to pollute a fishery, the basis of the claimant’s right to fish in the relevant waters will always be an issue in an action in respect of damage to the fishery. There may be a long-established right or the claimant may fish in the waters under a licence from the landowner that gives no right of action. Claims on the use of rights of navigation, such as damage caused by boat wash, may also involve land law issues.

Flooding
Flooding has become a prominent issue. Claims for flood damage can involve the occurrence of the flood and property rights. For example the defendant may argue that there is an easement of drainage over the claimant’s land that means there is no liability for any flood damage. The case outcome may depend on a determination of whether the defendant has established the easement by prescription. Chambers can deal with such issues and advise as to the best way of resolving them.

Group litigation
Old Square Chambers has considerable experience in group litigation including a number of nuisance action cases for residents around waste disposal or other industrial facilities.

Habitats/conservation
Nature conservation issues, whether bats roosting in a house to be redeveloped or the protection of water and other habitats, can have adverse consequences on plans and projects. Similarly, development can adversely affect habitats and species. Old Square Chambers can advise on these and other species protection issues.

Nuisance claims
Our barristers are experienced in private, public and statutory nuisance claims. Retired member Nigel Cooksley QC and John Bates appeared in Barr v. Biffa [2011] EWHC 1003 (TCC) and John was also junior counsel in Dobson v. Thames Water Utilities Ltd [2011] EWHC 3253 (TCC). David Wilby QC successfully acted for claimants in the Corby Group Litigation [2009] EWHC 1944 (TCC), a case concerning public nuisance from reclamation works. Other nuisance cases have involved noise, dust, and odour. Nuisance claims involve the law of nuisance and technical evidence as to the causes and consequences of the problem. This can range from air dispersion modelling to noise level readings or, as in Dobson, the biology of mosquitoes. Establishing damage to crops resulting from flooding or air or water contamination can also be very complicated. We have the expertise to deal with these issues.

Planning
Old Square Chambers advises on planning issues as part of an environmental claim or on their own. Recently, work included a ten-day inquiry into an incineration facility, dealing with river barrages, housing developments, road issues, general enforcement notices and planning applications.

Waste
We have experience in both civil and criminal litigation in respect of waste issues whether dealing with the definition of ‘waste’, exemptions from permitting, the liabilities of an operator under an environmental permit or a landowner’s remedy where waste is dumped on the land.

Water abstraction/drought
Water abstraction issues include the rights of someone to abstract water from a watercourse or the ground. With experience of such issues, Old Square Chambers advises on parties’ rights and, if necessary, deals with those issues at an inquiry or in court. We can also advise on drought orders or drought permits where they may have a serious effect on businesses, fisheries or wildlife.

A specialist Health and Safety Regulatory team, which includes barristers who are leaders in their field in Chambers & Partners and The Legal 500, work on the full range of health and safety law, from appeals against improvement and prohibition notices through to prosecutions of individuals for gross negligence manslaughter and prosecutions under the HSWA arising out of fatal and non-fatal accidents. Their expertise extends into sectors including construction, transport, farming, quarrying, leisure and healthcare.

Regulatory prosecutions
With fines likely to increase exponentially in cases arising from deaths in the workplace, the importance of clear practical advice to clients is critical. Our barristers understand the potential dramatic effect, both financially and to reputation, a prosecution can bring.

Recently, instructions included prosecutions arising from fatal incidents on construction sites, fairgrounds, farms and those involving the emergency services. The team has expertise in the health sector as evidenced by the recent defence of a NHS Trust Foundation for offences under COSHH regulations.

Prohibitions and improvement notices
If the inspector considers the activity being carried out involves, or will involve, a risk of serious injury under the Health & Safety at Work etc Act 1974 (the HSWA), they may serve a notice to stop the activity in question or take some other action. We advise on the validity of a notice, the effect of the notice on a client’s business operations and representation at any appeal to the Employment Tribunal.

Coroner’s inquests
A coroner’s inquest may follow an incident with a fatality. We regularly represent interested persons and ask questions of witnesses. Most recently, John Hendy KC represented the bereaved and injured in the high-profile Lakanal House fire inquest.

Public inquiries
If the incident is of a serious public nature, there may be a public inquiry. Old Square Chambers has a history of expertise in transport work from the Clapham Junction Inquiry to the Ladbroke Grove and Southall Inquiries, where barristers represented two separate parties within the inquiry.

Interviews under caution
Members work closely with solicitors at an early stage to understand the issues a client may be facing and to advise accordingly. In the initial investigation stages we provide advice regarding the appropriate approach to the PACE interview. Frequently we are asked to advise on representations that can be made to the regulatory authority to persuade them that no further action is necessary. However, where criminal proceedings are unavoidable, we represent clients in the Magistrates’ or Crown Court and will ensure that the proceedings have the minimum impact upon the client and their business.

All regulatory prosecutions are covered by our specialised Regulatory Team from breaches of abatement notices through to high-profile Crown Court prosecutions brought by the regulatory authorities. Whether through accident or lack of knowledge, even the best-run business can inadvertently breach environmental legislation and risk investigation or prosecution.

We represent corporate and individual defendants, and clients range from utility companies to restaurants, farmers and manufacturing companies. Case experience includes prosecutions of major pollution incidents, permit breaches, marine regulation prosecutions, the release of hazardous or noxious substances and the escape of controlled waste.

Waste prosecutions
From tyre bales to hazardous waste, from Magistrates’ Court prosecutions to substantial Crown Court trials, we have successfully defended many high-profile prosecutions brought by the Environment Agency. Old Square Chambers barristers have appeared in the Court of Appeal dealing with the definition of “waste”– R v. W (2011) 3 All E.R. 691 and have recently been instructed by a potential defendant involved in the Environment Agency’s largest ever investigation into hazardous waste.

Water prosecutions
Water prosecutions are brought where water is unlawfully abstracted or causes a pollution incident which has the potential to damage water quality, wildlife and habitats. This may involve the failure of a water company’s sewage plant or farm effluent entering the local water course. Old Square Chambers barristers have experience in considering environmental impact assessments available and identifying aggravating factors (“fish kill”) and mitigating factors (“remedial action”). We can also handle the media interest these sensitive cases attract.

Interviews under caution
Barristers work closely with solicitors at an early stage to understand the issues a client maybe facing and advise accordingly. In the initial stages of an investigation we provide advice regarding the appropriate approach to the PACE interview. We frequently advise on representations that can be made to the Environment Agency to persuade them that no further regulatory action is necessary. Where criminal proceedings are unavoidable, we represent clients in the Magistrates’ or Crown Court and ensure that the proceedings have the minimum impact upon the client and their business.

Breach of abatement notices
Old Square Chambers barristers can deal with abatement notices in the Magistrates’ Court in respect of noise, dust, smoke and odour. We have also advised on prosecutions under section 82 of the Environmental Protection Act 1990.

Sentencing and POCA
Sentencing in environmental cases now includes significant fines and the potential for imprisonment. The Environment Agency can apply for a confiscation order under the Proceeds of Crime Act 2002 (POCA) to recover the “benefit of crime” which can have devastating consequences on businesses and individuals. Old Square Chambers barristers have advised extensively in confiscation and restraint. Instructions have come from defendants and the Regulatory Authorities in some of the most high-profile cases involving POCA – including the highest ever POCA awarded in an environmental prosecution (R v Craxford (2008). We factor this in at very beginning of any regulatory investigation because decisions at this stage can have profound effect at any sentencing hearing.

There are various different fee charging models available and these will vary according to each individual case. Wherever possible costs will be agreed in writing prior to commencement of any work by the barrister. In cases that are unusually lengthy or complex, it may not be possible to agree a fixed fee for certain items of work. In those circumstances we will agree an appropriate hourly rate for the item of work.

One of the fee structures commonly used for Health & Safety cases is a fixed fee. This means that, wherever possible, we will quote a fee in advance of the work being carried out. For hearings we typically charge a brief fee which includes counsel’s preparation for the hearing and attendance at the first day of the hearing. A refresher fee will be charged for each subsequent sitting day.

Please see below estimates based on the ranges of fixed fees and brief fees for barristers at Old Square Chambers in ordinary Health & Safety cases.

Wherever possible, we will endeavour to achieve the timescales outlined, or any other reasonable timescales agreed at the time of accepting the instructions. Timescales may vary depending on factors such as barristers’ availability, the complexity of your case, the need for additional documents and the other side’s approach. Chambers will, wherever possible, endeavour to provide advice and representation that meets and exceeds the needs of our clients. Unforeseeable factors such as tribunal/court delays, cases overrunning, barrister illness and other factors outside of our control could cause delays. We will always endeavour to work with you to ensure we meet and exceed your expectations wherever possible. Where it is not possible, we will ensure we communicate clearly and regularly with you to guide you through any challenges.