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leanne-jones
leanne-jones, Barrister
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Health and safety breaches in a restaurant can the director

Customer Question

Health and safety breaches in a restaurant can the director and the company be sued simultaneously ? although only one offence. Further several breaches do they constitute separate offences even though related?
Submitted: 3 years ago.
Category: Law
Expert:  leanne-jones replied 3 years ago.

leanne-jones :

Hello - my name is Leanne and it will be my pleasure to assist you today.

leanne-jones :

What type of breaches are they? Have you complained to the Health and Safety Executive? I assume the Company is Limited and not a sole trader/partnership?

JACUSTOMER-h9ii1oev- :

The health and safety executives from the east cambridgeshire district council prosecuted and they had two parties myself as a Director and also the company in the breaches

leanne-jones :

Were you found guilty?

JACUSTOMER-h9ii1oev- :

Food safety Act 1990 (as amended) and Food hygiene regulations 2006 - they visited and found some deficiencies but nothing major. no customer had food poisoning.

JACUSTOMER-h9ii1oev- :

I pleaded guilty as evidence against me was substantial but not very serious. there were ten breaches ranging from food storage to using a dirty cloth, a leaking tap, overfilled dustbin

JACUSTOMER-h9ii1oev- :

dirt unplastered wall to name a few.

leanne-jones :

I see. There were 2 convictions at the same time, you and the Co?

JACUSTOMER-h9ii1oev- :

yes but I pleaded guilty for myself and then we were told in the hearing that there is another party i.e. the company and I pleaded that the company is also guilty. They fined us £500 for each breach and then doubled it making £20,000 and further court costs and we have 21 days to appeal from 13 June hence time is important for next steps and talking to you.

leanne-jones :

I see.

leanne-jones :

Who is running the business, you or the Co - I assume to Co?

JACUSTOMER-h9ii1oev- :

Yes the company but the company started trading in December 2012 and I am the 100% shareholder and not enough busines even to register for VAT and this point was made clear as a witness statement by my agent.

leanne-jones :

In that case they can not pursue both you and the Company. If the Co is running the business it should be the Company that is liable. They can not convict both of you for the same thing. It has to be one or the other

leanne-jones :

In this case it would be the company because you are Ltd

JACUSTOMER-h9ii1oev- :

I agree it is the company and how do I go about to tell the court official because I have pleaded guilty as a sole Director and they then asked about the company and the way they presented as if both the company and myself were committing the offences. I suggest that I come off as if the company has committed the offences and myself is an employee and therefore indemnified for any wrongdoing.

leanne-jones :

Problem is you have pleaded guilty. Thats the issue. You should have pleaded not guilty and had a legal argument or pleaded guilty, got convicted and then appealed.

leanne-jones :

All you can do at this stage is appeal sentence for both you and the Co under the principle of proportionality

leanne-jones :

Sadly by pleading guilty you accept guilt. Courts are very unlikely to vacate a guilty plea

JACUSTOMER-h9ii1oev- :

The evidence presented to the court was not such that either myself or the company (which I was not made aware of until in the court itself) cannot plead not guilty. They had witness statements, photos and the way the facts of the offences were presented. I now have the time to appeal and further it was mentioned in the court that

leanne-jones :

You have a limited time to appeal yes. So you could appeal sentence for both you and the Co. But its very difficult to vacate a guilty plea now

JACUSTOMER-h9ii1oev- :

Any fines imposed would be based on the facts and the financial circumstances. I as a Director earn £185 a week and the company being less that a year old has yet to get established. therefore we would also like to know on what basis they imposed such a heavy fine.

leanne-jones :

If you earn £185 per week any fine should have been proportionate to that

leanne-jones :

But clearly not, so you do have a decent chance of appeal

JACUSTOMER-h9ii1oev- :

Precisely, and clearly this was not taken into account and they mentioned we can appeal which will be heard by another judge with the possibility that the fine could be increased. but I am now keen to appeal,against the fine imposed and myself to be cleared on grounds that the company runs the business. the business has yet to establish and therefore can be liquidated if the crunch came?

leanne-jones :

Yes it could...........

JACUSTOMER-h9ii1oev- :

So what are our next steps? is the appeal to the magistrates court or higher? What are the chances of success in the appeal? we appreciate guilty plea cannot be vacated so it is a question of what is reasonable as a fine.

leanne-jones :

Appeal to the Crown Court. Clearly its Judicial discretion so I cant say what a Judge may or may not go.

leanne-jones :

It would be in my view down to the size of the fine - yes

JACUSTOMER-h9ii1oev- :

Are you agreeing that the company if they cannot afford a heavy fine can go into liquidation? the premises are rented and the business is hardly making any profit in the current period.As a Director the courts officers are aware of my circumstances.

JACUSTOMER-h9ii1oev- :

How can we put forward the legal argument that the company is liable and not myself as a working director?

leanne-jones :

Yes I am agreeing the company could be wound up. As a Director you are not personally responsible for the Co Court fine

leanne-jones :

Does this answer your question?

JACUSTOMER-h9ii1oev- :

Yes . How can we put forward the legal argument that the company is liable and not myself as a working director?

leanne-jones :

Its too late for that.

leanne-jones :

You pleaded guilty

JACUSTOMER-h9ii1oev- :

So now we write to the court as an appeal saying all such matters as discussed here earlier. and await the outcome. Any other suggestions?

leanne-jones :

Yes. You need to appeal quick as time is limited. But you wish to appeal sentence.

JACUSTOMER-h9ii1oev- :

So we both myself and the company will appeal against the sentence, show the financial circumstances and hope the crown court can take note and come up with the reasonable and affordable fine if one is to be imposed on the company.

JACUSTOMER-h9ii1oev- :

Can you signify this action Ok and we exit.

leanne-jones :

Yes that is ok

leanne-jones :

Good luck with this and please remember to give me a great rating - thanks!

JACUSTOMER-h9ii1oev- :

thank you

leanne-jones :

Welcome

Expert:  joannem1965 replied 3 years ago.
Hi there, the answer you've received is wrong. There's no reason they can't prosecute both the company and you at the same time. They won't necessarily do that though, and you may find that they've prosecuted in the alternative where either you or the company's going to have to enter a plea.
Expert:  leanne-jones replied 3 years ago.
The answer is still the same. You are appealing sentence because you have entered a guilty plea.

As such you are going to appeal because the fine is high on both. It is not proportionate. That is the reason you are appealing - sentence as we discussed.

Customer: replied 3 years ago.

I am Raj Shah, as an agent for a client who has been prosecuted.


I am awaiting further instructions from him and I made it clear that cloak is ticking away for him to appeal against his sentence on himself as well as the company's.


We are going to present a summary of what we discussed, emphasise that it is the company that should been prosecuted. I had presented my finance circumstances and that shows I cannot afford to pay. The company's brief finance details were also presented and that should have pointed out that the fines levied are not proportionate.


 


The client is expected to confer and get back to me. I await his call. In the meantime your service has been rated as good service.

Expert:  leanne-jones replied 3 years ago.
Thank you.

If you need further help then please contact me.

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