Your right to choose legal representation when under investigation for a SHE offence
Susan Dearden discusses your right to choose legal representation when under investigation for a SHE offence, and how this is an issue frequently raised, typically in the context of an investigation and possible prosecution for breach of statutory duty following a workplace incident.
Following an accident in your workplace, particularly which has led to injury, you are likely to face two very different types of litigation:
- A civil claim for compensation by the injured person;
- Criminal prosecution for breach of statutory duty by the HSE or EHO, or, following a fatality, by the police for manslaughter.
In a civil claim, subject to any policy excess payable, your insurers generally have the right of subrogation which means they can stand in your shoes to deal with the claim for you. The policy will usually cover any compensation payable and claimant and defence costs. Your insurers can insist that one of its panel firms deals with the claim on your behalf in these circumstances.
By contrast, in a criminal prosecution, the insurance cover is limited to your defence costs only. Rather than your insurers, you will have liability for any fine that may be imposed and for any prosecution costs. In these cases, you have a right to choose your legal representation and that right is protected by Regulation 6 of the Insurance Companies (Legal Expenses) Regulations 1990.
Things to think about in deciding on representation:
- Cost – Insurers are in a powerful position to drive down the hourly rates of their panel lawyers. They are often less expensive than a non-panel firm and whilst Insurers cannot limit your choice of a lawyer by only agreeing to pay panel rates, they do sometimes limit their contribution to costs leaving an uninsured shortfall which you need to understand and be happy to bear.
- Skills – panel lawyers are selected both on price and for their ability primarily to manage large volumes of civil claims effectively. They do not all have the experience and skills of an H&S lawyer who deals primarily or exclusively with compliance and criminal prosecutions. If using a panel lawyer, do check who will be doing the work on your behalf and ask for details of their experience including what percentage of their work is in the defence of prosecutions (as opposed to the defence of civil claims) so that you can make an informed choice. Unless your lawyer is talking to you about potential liabilities, defence options, strategies and sentencing from the outset, you might query whether the person dealing with your matter has the skills to enable you to minimise the impact of proceedings, help you to make informed decisions, and manage your way through what is usually a fast-moving and challenging time.
- Your Interests – insurers are very significant clients for panel firms and they are strongly motivated to keep their panel position. Your interests may not align with your insurers in a criminal investigation and prosecution. The insurers’ liability in such cases is defence costs. Are you happy with a lawyer whose key role is to keep your defence costs down? Or would you prefer a lawyer who has your interests at the heart of what they do, whether that is pursuing a defence on your behalf, or building culpability and harm arguments and mitigation to keep your liability down?
Reasons for instructing Finch Legal
You may wish to instruct a company like Finch Legal for the following reasons:
- Finch is unique. Our lawyers, engineering, health and safety, and environmental experts work alongside each other and collaborate under one roof to understand your issues in very real and pragmatic ways. Many of our experts are experienced investigators and expert witnesses, so understand both your needs and the needs of the investigation.
- We are specialists. Our lawyers only advise in health and safety and environmental cases so are true specialists in their field. With experience both in prosecuting and defending, they have a unique skill set to maximise your prospects of success.
- We work with corporates and individuals to identify realistic defences, manage the criminal investigatory process for your benefit, and pull together the evidence to ensure success in defence or mitigation.
- We can help both before and after an incident. Our experts can provide you with training and advice to help you achieve compliance, where an accident has occurred that same expertise can give you objective and pragmatic guidance to help prevent repetition. Those steps provide invaluable mitigation to reduce any penalty.
Finch Legal will be happy to assist you with liaising with your insurers to secure funding for our instruction. Please feel free to contact Sue Dearden in our legal team if you wish to have a confidential discussion about this issue or require assistance with any other matter concerning health, safety or environmental compliance.