Essex Pyrotechnics Ltd v S Glover One of HM’s Inspectors of Health and Safety (Explosives): 3305599/2024
JUDGMENT
The appeal is struck out pursuant to rule 38(1)(a) of the Employment Tribunals Rules of Procedure 2024 on the grounds it has no reasonable prospect of success.REASONS
[1]This is an application to strike out an appeal against a Health and Safety Improvement Notice IN-SAG-140520204-01 dated 14 May 2024 (“the Notice”).[2]The notice states that the Appellant has breached regulation 26(1)(a) of the Explosives Regulations 2014 and sections 2 and 3 of the Health and Safety at Work etc Act 1974 because: “You have not taken measures to minimize the risk of fire and explosion caused by lightning strike on buildings which contain explosives. In that the Lightening Protection System (LPS) of your explosive storage buildings does not meet the requirements of the relevant standard. In order to comply with the Notice you should: Replace the existing LPS components on all explosive storage structures with components that conform to the relevant standard (BS EN 62305- 03:2011 or para 35 of Appx 3 to L150) And Have the LPS inspected and tested to the relevant standard and be able to demonstrate that the completed installation achieves an impedance of less than 10 Ohms, in accordance with BS EN 62305-03:2011 or para 35 of Appx 3 to L150).”[3]In short, the purpose of the Notice is to ensure that the Appellant has lightning protection systems (LPS) which comply with either part 3 of British Standard EN 62305:11 (“BS EN 62305”) or paragraph 35 of Appendix 3 of Guidance L150 (Guidance on Explosive Regulations 2014) (“the Guidance”).[4]The relevant section of part 3 of BS EN 62305 is Annex D which is headed “Additional information for LPS in the case of structures with a risk of explosion”.[5]Paragraph D.1 thereof is headed “General” and provides “This annex supplies additional requirements for the design, construction, extension and modification of lightning protection systems for structures with a risk of explosion”. It has a note beneath which provides that “Information provided in this annex is based on practically proven configurations of lightning protection systems installed in applications where a danger of explosion exists. The authority having jurisdiction may give other requirements”.[6]The relevant part of the Guidance is paragraph 35 thereof, which provides: that steel ISO or similar containers used for the storage of explosives can be regarded as self-protecting provided that:• “The walls are lined with wood (or other appropriate lining), or the explosives are kept at least 150 mm away from the container’s walls;• The panels and doors are electrically bonded with straps of a cross section of at least 50 mm;• Two earthing points connected to earth rods are provided at opposite corners; and• Resistance from the top of the container to earth is less than 10 ohms”.[7]On 3 June 2024 the Appellant lodged a claim form bringing an appeal against the Notice. The effect of the appeal is to suspend the Notice.[8]The appeal was served on the Respondent on 22 August 2024.[9]A Preliminary Hearing took place on 16 October 2024 which listed a twoday Final Hearing on 27 & 28 March 2025 and made case management orders.[10]On 24 January 2025 the Respondent gave the Appellant notice of a strike out application based on all four paragraphs of rule 38 of the Employment Tribunals Rules of Procedure 2024.[11]The Final Hearing listed for 27 & 28 March 2025 was adjourned on the first of the hearing due to the ill-health of Mr Archer and the Respondent’s strike out application was listed to be heard today by way of a 3hr Public Preliminary Hearing.Factual Background
[12]The factual background to the Respondent’s application was not in dispute.[13]On 26 October 2023 the Respondent undertook a compliance inspection at the Appellant’s premises and identified a number of breaches including the lack of an appropriately installed, maintained and tested LPS system.[14]On 5 January 2024 the Appellant was sent a Notice of Contravention Letter, requiring action by 29 January 2024, in particular the “installation of suitable lightning protection and earth bonding”.[15]On 15 January 2024 Mr Archer sent the Respondent an Electrical Test Report from Rix Electrical in purported compliance. However, the test report showed the tests had not been conducted on all the magazines and of the nine magazines tested only two were below the required 10 ohms (thereby failing to satisfy the 4th bullet point of paragraph 35 of the Guidance). Further, when the Respondent contacted Rix Electrical, they were informed that the company wasn’t competent to test the Appellant’s LPS to the appropriate standard of BS EN 62305.[16]On 26 February 2024 the Respondent sent the Appellant a letter saying that the test didn’t meet the standard of either BS EN 62305 or para 35 of the Guidance. The Appellant was given a deadline for the completion of the testing of all LPS on the company’s site to be undertaken by 29 March 2024.[17]After that deadline passed, on 8 April 2024 the Respondent issued an Improvement Notice.[18]Mr Archer then informed the Respondent that he had requested specialist electrical contractors PTSG to undertake inspection and testing of the LPS in accordance with BS EN 62305 on 2 May 2024.[19]However, on 7 May 2024 Mr Archer emailed the Respondent saying, “The containers are properly earthed, but he [PTSG] could not sign off compliance to the British Standard you cited because this relates to the lightning protection of structures such as church steeples. The bonding used on these structures and the size of the earth rods used is much larger than for conventional earthing”.[20]It transpired that PTSG had inspected the Appellant’s LPS on 2 May 2024 but had not tested it because the earths fitted did not comply with the minimum requirements of BS EN 62305. The cost of carrying out the repair work would, they estimated, be £8,012.94 + VAT.[21]Accordingly, the Notice was issued on 14 May 2024 because whilst the Appellant had partially complied with the original Improvement Notice, in that he had had the LPS inspected, PTSG had been unable to test or issue a certificate of conformity because the components within the LPS were below specification. The appeal[22]The grounds of appeal in the claim form are unclear and confusing. It is stated that “the issue in this instance is an ambiguity in the text of paragraph 35 of the 2014 regulations, which is being interpreted in a manner that is inconsistent with the evidence-based approach”. There is then an argument to the effect that the minimum requirements were relevant to the LPS of structures such as church steeples where the size of the earth rods was much larger than for conventional earthing.[23]Accordingly, while the grounds of appeal did not expressly mention BS EN 63205, they appeared to make reference to the minimum requirements set out therein (since they repeat what is said in the email of 7 May 2024 as regards why PTSG could not test/sign off compliance with BS EN 63205). Further, it was unclear what alleged ambiguity in the 2014 Regulations (referred to in this judgment as the Guidance) the Appellant was relying upon.[24]Subsequently, by an email dated 5 December 2024 the Appellant stated his case was that HSE was misreading the relevant documents and that the improvements requested “exceed the bounds of regulatory interpretation, and required a regulatory amendment before they can be demanded”.[25]On 10 February 2025 the Appellant responded to the Respondent’s strike out application (of which notice had been given on 24 January 2025) by making the argument that Annex D of BS EN 63205 was only in draft form and, further, that “the preface to the section subordinated itself to any other regulation”.[26]That argument was the gist of the Appellant’s submissions today.Findings
[27]I turn first to the Respondent’s argument that the appeal should be struck out as it has no reasonable prospect of success.[28]In this respect I consider that the Appellant’s argument that Annex D of BS EN 63205 is only a draft is a hopeless one.[29]Mr Archer relies upon Note 1 to paragraph 1 (headed “Scope’’) of Part 3 of BS EN 63205 which states that “Specific requirements for an LPS in structures dangerous to their surroundings due to the risk of explosion are under consideration. Additional information is provided in Annex D for use in the interim”.[30]However, that statement does not state or imply that Annex D is only in draft form, merely that when BS EN 63205 was published there was an expectation that Annex D would be replaced in the relatively near future. In fact, that has not happened.[31]Further, the note to paragraph D.1 (quoted above at paragraph 5) that “the authority having jurisdiction may give other requirements” does not support the argument that Annex D is merely in draft either. It simply says that the authority having jurisdiction (presumably the HSE) may give other requirements. While it appears to be the case that the requirements in Annex D could be superseded by the authority with jurisdiction giving other requirements, it has not been suggested that any other such requirements have in fact been given (other than paragraph 35 of the Guidance).[32]Finally, for the sake of completeness I note that I was also shown an email from Toby Livsey of the British Standards Institution stating that BS EN 63205 was published on 30 June 2011 and that it was not published as a draft.[33]The undeniable position is that Mr Archer is not able to show that the Appellant complies with the requirements of either the BS EN 63205 or paragraph 35 of the Guidance.[34]In this respect Mr Archer does not dispute that, as regards BS EN 63205, PTSG were unable to test the LPS because the earths fitted did not meet the minimum requirement of that standard. And as regards the Guidance, Mr Archer does not dispute that, at the time of testing by Rix Electrical, and as at the date of this hearing, the fourth bullet point of paragraph 35 is not met because the resistance of the magazines was in some cases above 10 ohms.[35]Mr Archer’s position appeared to be that even if he did the works necessary to satisfy that fourth bullet point (the resistance requirement), the Respondent would remain unsatisfied in respect of the third bullet point of paragraph 35 of the Guidance, because it requires the earthing points to satisfy the standard in BS EN 63205. However, I have seen no evidence in the correspondence that is the case. The evidence is that the Respondent requires the earthing points to satisfy BS EN 63205 if and insofar as the Appellant uses the BS EN 63205 route to achieve compliance. There is no evidence before me that the Respondent requires the earthing points to satisfy BS EN 63205 if the Appellant uses the Guidance route to achieve compliance; in that respect, as regards earthing points, the third bullet point of the Guidance merely seems to require that two earthing points connected to earth rods are provided at opposite corners.[36]In any event, that is an argument for a different day, because it’s clear that the Appellant’s LPS does not currently conform to the relevant standards of either BS EN 62305 or paragraph 35 of the Guidance.[37]It follows that the appeal has no reasonable prospect of success and should be struck out. Approved By: COSTS JUDGMENT The Respondent’s application for costs is allowed. The Appellant must pay the Respondent’s costs in the sum of £11,762.36.Findings
[1]Rule 74 of the Employment Tribunal Rules of Procedure 2024 provides as follows: 74.—(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that—(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. 1 of 3 …[2]Following the Tribunal’s judgment in this matter striking out the appeal on the grounds it had no reasonable prospects of success, by email of 1 July 2025 the Respondent made a written application for the costs of defending the appeal pursuant to rule 74(2)(b) above.[3]The Appellant was given 21 days to respond to the Respondent’s application but failed to do so.[4]Since I have found that the appeal had no reasonable prospects of success, it follows, pursuant to rule 72(2) above, that I must consider whether to make a costs order.[5]I have decided that in this case it is appropriate to exercise my discretion and make such a costs order.[6]Mr Archer, director of the Appellant, never articulated a coherent or consistent basis for the appeal, which remained unclear and confused even at the hearing. Further his argument that Annex D of BS EN 63205 was only a draft with which the Appellant was not required to comply was plainly a hopeless one. In addition, in preparation for the hearing, Mr Archer ignored communications from the Respondent seeking clarification of the basis of his appeal and also offers to explore resolution by working with the regulator to comply with the Improvement Notice.[7]In short, the appeal was a total waste of public money.[8]Further by email of 13 December 2024 the Respondent noted the Appellant’s lack of engagement with the appeal and put Mr Archer on notice that it may seek a costs order.[9]The amount of costs claimed is £11,762.36, which covers the Respondent’s total costs of the appeal, including a Preliminary Hearing on 16 October 2024. The costs have been fully itemised with the maximum hourly rate charged being £125 for an Enforcement Lawyer, band two. The costs incurred are in my judgment proportionate and reasonable. Further, I note that a successful party is entitled to be awarded costs regardless of whether they have been represented by outside lawyers or, as in this case, “in-house”.[10]I therefore award the Respondent its costs in the sum of £11,762.36. Approved By: