Health and Safety
at Work (Improvement and Prohibition Notices Appeals) (Jersey) Regulations 1989
1 Interpretation
(1) In
these Regulations, unless the context otherwise requires –
“appeal” means
an appeal under Article 16 of the Law;
“appellant”
means a person who has appealed to the Tribunal under Article 16 of the Law;
“Law” means
the Health and Safety
at Work (Jersey) Law 1989;
“register”
means the register to be maintained under Rule 3;
“respondent”
means the inspector who issued the improvement notice or prohibition notice which
is the subject of the appeal;
“Rule” means a
Rule of Procedure contained in the Schedule to these Regulations;
(2) The
expressions “chairman”, “deputy chairman”,
“hearing”, the “Law”, “secretary” and the “Tribunal”
have the same meanings, respectively, as in the Health and Safety at Work
(Appeal Tribunal) (Jersey) Regulations 1989.
(3) Where
in these Regulations the exercise of any power or the performance of any
function is conferred on the chairman, that power or function may, in the
absence of the chairman from Jersey or in case the chairman shall for any
reason be incapable of performing or exercising that power or function or if
the chairman shall so direct in any case, be exercised or performed by the
deputy chairman.
(4) A
reference in these Regulations to an enactment, including an enactment of the
United Kingdom, is a reference to that enactment as amended, and includes a
reference to that enactment as extended or applied by or under any other
enactment.
2 Power of Tribunal to award compensation
(1) Subject
to paragraphs (2) and (3), where the Tribunal allows an appeal and cancels
or modifies a notice, it may, if it is satisfied that the appellant has
suffered loss in consequence of the service of the notice, order that the
appellant be paid compensation.
(2) The
Tribunal shall not order compensation to be paid in any case unless it is
satisfied that the action of the inspector in serving the notice was
unreasonable in all the circumstances of the case.
(3) The
Tribunal shall not order compensation where the appeal is against a prohibition
notice unless the appellant has made an application under Article 16(3)(b)
of the Law for the suspension of the notice.
3 Procedure on appeals
The Rules of procedure in
the Schedule to these Regulations shall have effect in relation to appeals
under Article 16 of the Law.
4 Citation
These Regulations may be
cited as the Health and Safety at Work (Improvement and Prohibition Notices
Appeals) (Jersey) Regulations 1989.
SCHEDULE
(Regulation 3)
RULES OF PROCEDURE FOR
APPEALS UNDER ARTICLE 16 OF THE LAW
1 Notice
of appeal
An appeal shall be
commenced by the appellant sending to the secretary a notice of appeal which
shall be in writing and shall set out –
(a) the
name of the appellant and the appellant’s address for service of
documents;
(b) the
date of the improvement notice or prohibition notice appealed against and the
address of the premises concerned;
(c) the
name and address of the respondent;
(d) particulars
of the requirements or directions appealed against; and
(e) the
grounds of the appeal.
2 Time
limit for bringing an appeal
(1) Subject
to paragraph (2), the notice of appeal shall be sent to the secretary
within 21 days of the date of service on the appellant of the notice appealed
against.
(2) The
Tribunal may extend the time mentioned above where it is satisfied, on an
application made in writing to the secretary either before or after the
expiration of that time, that it is not or was not reasonably practicable for
an appeal to be brought within that time.
3 Action
on receipt of notice
Upon receipt of a notice
of appeal the secretary shall enter particulars of it in a register, to be
maintained by the secretary for that purpose and for the purpose of entering
the decisions of the Tribunal, and shall forthwith send a copy of the notice to
the respondent and inform the parties in writing of the case number of the
appeal entered in the register (which shall thereafter constitute the title of
the proceedings) and of the address to which notices and other communications
to the secretary shall be sent.
4 Application
for a direction suspending the operation of a prohibition notice
(1) Where
an appeal has been brought against a prohibition notice and an application is
made to the Tribunal by the appellant in pursuance of Article 16(3)(b) of
the Law for a direction suspending the operation of the notice until the appeal
is finally disposed of or withdrawn, the application shall be sent in writing
to the secretary and shall set out –
(a) the
case number of the appeal if known to the appellant or particulars sufficient
to identify the appeal; and
(b) the
grounds on which the application is made.
(2) Upon
receiving the application, the secretary shall enter the particulars of it
against the entry in the register relating to the appeal and shall forthwith
send a copy of it to the respondent.
5 Power
to require attendance of witnesses and production of documents etc.
(1) The
Tribunal may on the application of a party made either by notice to the
secretary or at the hearing –
(a) require
a party to furnish in writing to the other party further particulars of the
grounds on which the party relies and of any facts and contentions relevant
thereto;
(b) grant
to either party such discovery or inspection of documents as might be granted
by the Royal Court; and
(c) require
the attendance of any person as a witness or require the production of any
document relating to the matter to be determined,
and may appoint the time
at or within which or the place at which any act required in pursuance of this Rule
is to be done.
(2) The
Tribunal shall not under paragraph (1) require the production of any
document certified by the Attorney General as being a document the production
of which would be against the interests of national security.
(3) A
person on whom a requirement has been made under paragraph (1) may apply
to the Tribunal either by notice to the secretary or at the hearing to vary or
set aside the requirement.
(4) No
such application to vary or set aside shall be entertained in a case where a
time has been appointed under paragraph (1) in relation to the requirement
unless it is made before the time or, as the case may be, expiration of the
time so appointed.
6 Time
and place of hearing and appointment of assessor
(1) The
chairman shall fix the date, time and place of the hearing of the appeal and of
any application under Rule 4, and the secretary shall not less than 14 days (or
such shorter period as may be agreed by the parties) before the date so fixed
send to each party a notice of the hearing which shall include information and
guidance as to attendance at the hearing, witnesses and the bringing of
documents (if any), representation by another person and written
representations.
(2) Where
the chairman so directs, the secretary shall also send notice of the hearing to
such persons as may be directed, but the requirement as to the period of notice
contained in the foregoing paragraph shall not apply to any such notices.
(3) The
chairman may, if the chairman thinks fit, appoint a person or persons with
special knowledge or experience in relation to the subject matter of the appeal
to sit with the Tribunal as assessor or assessors.
7 The
hearing
Any
hearing of or in connection with an appeal shall take place in public unless
the Tribunal on the application of a party decides that a private hearing is
appropriate for the purpose of hearing evidence –
(a) which relates to
matters of such a nature that it would be against the interests of national
security to allow the evidence to be given in public; or
(b) from any person which
in the opinion of the Tribunal is likely to consist of information the
disclosure of which would be prejudicial to the interests of –
(i) the
undertaking of the appellant, or
(ii) any
undertaking in which the appellant works,
for reasons other than its effects on negotiations with respect to a
trade dispute within the meaning given to that term in section 29(1) of the Trade
Union and Labour Relations Act 1974 of the United Kingdom.
8 Written
representations
If a party shall desire
to submit representations in writing for consideration by the Tribunal at the
hearing of the appeal, that party shall send such representations to the
secretary not less than 7 days before the hearing and shall at the same time
send a copy of it to the other party.
9 Right
of appearance
At any hearing of or in connection
with an appeal a party may appear before the Tribunal in person or may be
represented by an advocate or by any other person whom the party desires to
represent him or her, including in the case of an appellant a representative of
a trade union or an employers’ association.
10 Procedure
at hearing
(1) At
any hearing of or in connection with an appeal a party shall be entitled to
make an opening statement, to give evidence on the party’s own behalf, to
call witnesses, to cross-examine any witness called by the other party and to
address the Tribunal.
(2) If
a party shall fail to appear or to be represented at the time and place fixed
for the hearing of an appeal, the Tribunal may dispose of the appeal in the
absence of that party or may adjourn the hearing to a later date:
Provided that before
disposing of the appeal in the absence of a party the Tribunal shall consider
any written representations submitted by that party in pursuance of Rule 8.
(3) The
Tribunal may require any witness to give evidence on oath or affirmation and
for that purpose there may be administered an oath or affirmation in due form.
11 Decision
of Tribunal
(1) A
decision of the Tribunal may be taken by a majority thereof and, if the
Tribunal shall be constituted of 2 members only, the chairman shall have a
second or casting vote.
(2) The
decision of the Tribunal shall be recorded in a document signed by the chairman
which shall contain the reasons for the decision.
(3) As
soon as may be, the document signed by the chairman shall be entered in the
register by the secretary, who shall also send a copy to each of the parties.
(4) The
specification of the reasons for the decision shall be omitted from the
register in any case in which evidence has been heard in private and the
Tribunal so directs and in that event a specification of the reasons shall be
sent to the parties and to the Royal Court in any proceedings relating to such
decision together with the copy of the entry.
(5) The
register shall be kept at the offices of the Judicial Greffier and shall be
open to inspection by any person without charge at all reasonable hours.
(6) The
chairman shall have power by certificate under the chairman’s hand to
correct in documents recording the Tribunal’s decisions clerical mistakes
or errors arising therein from any accidental slip or omission.
(7) The
secretary shall as soon as may be after receipt of a certificate of the
chairman make such correction as may be necessary in the register and shall
send a copy of the corrected entry or of the corrected specification of the
reasons, as the case may be, to the parties.
(8) If
any decision is –
(a) corrected
under paragraph (6);
(b) reviewed,
revoked or varied under Rule 12; or
(c) altered
in any way by order of a superior court,
the secretary shall alter
the entry in the register to conform with any such certificate or order and
shall send a copy of the new entry to the parties.
12 Review
of the Tribunal’s decision
(1) The
Tribunal shall have power on the application of a party to review and to revoke
or vary by certificate under the chairman’s hand any of its decisions on
the grounds that –
(a) the
decision was wrongly made as a result of an error on the part of the Tribunal
staff;
(b) a
party did not receive notice of the proceedings leading to the decision;
(c) the
decision was made in the absence of a party;
(d) new
evidence has become available since the making of the decision provided that
its existence could not have been reasonably known of or foreseen; or[1]
(e) the
interests of justice require such a review.
(2) An
application for the purposes of paragraph (1) may be made at the hearing.
If the application is not made at the hearing, such application shall be made
to the secretary within 14 days from the date of the entry of the decision in
the register and must be in writing stating the grounds in full.
(3) An
application for the purposes of paragraph (1) may be refused by the
chairman, if in the chairman’s opinion it has no reasonable prospect of
success and the chairman shall state the reasons for the chairman’s opinion.
(4) If
such an application is not refused under paragraph (3), it shall be heard
by the Tribunal and if it is granted the Tribunal shall either vary its
decision or revoke its decision or order a re-hearing.
(5) The
secretary shall as soon as may be after receipt of a certificate of the chairman
as to any revocation or variation of the Tribunal’s decision make such
correction as may be necessary in the register and shall send a copy to each of
the parties.
13 Costs
(1) The
Tribunal may make an order that a party shall pay to another party either a
specified sum in respect of the costs of or in connection with an appeal
incurred by that other party or, in default of agreement, the taxed costs.
(2) Any
costs required by an order under this Rule to be taxed may be taxed in the
Royal Court according to such scales prescribed by the Royal Court for
proceedings in the Court as shall be directed by the order.
14 Miscellaneous
powers of the Tribunal
(1) Subject
to the provisions of these Rules, the Tribunal may regulate its own procedure.
(2) The
Tribunal may, if it thinks fit –
(a) postpone
the day or time fixed for, or adjourn, any hearing;
(b) before
granting an application under Rule 5 or 12 require the party making the
application to give notice thereof to the other party;
(c) either
on the application of any person or of its own motion, direct any other person
to be joined as a party to the appeal (giving such consequential directions as
it considers necessary), but may do so only after having given to the person
proposed to be joined a reasonable opportunity of making written or oral
objection;
(d) make
any necessary amendments to the description of a party in the register and in
other documents relating to the appeal;
(e) if
the appellant shall at any time give notice of the abandonment of the
appellant’s appeal, dismiss the appeal;
(f) if
the parties agree in writing upon the terms of a decision to be made by the
Tribunal, decide accordingly.
(3) Any
act, other than the hearing of an appeal or of an application for the purposes
of Rule 4 or 12(1) or the granting of an extension of time under Rule 2(2),
required or authorized by these Rules to be done by the Tribunal may be done
by, or on the direction of, the chairman.
(4) Rule
13 shall apply to an order dismissing proceedings under paragraph (2) of
this Rule.
15 Notices,
etc.
(1) Any
notice given under these Rules shall be in writing and all notices and
documents required or authorized by these Rules to be sent or given to any person
hereinafter mentioned may be sent by post (subject to paragraphs (3) and (4))
or delivered to or at –
(a) in
the case of a document directed to the secretary, such office as may be
notified to the parties by the secretary;
(b) in
the case of a document directed to a party, the party’s address for
service specified in the notice of appeal or in a notice under paragraph (2)
of this Rule or (if no address is so specified), the party’s last known
address or place of business in Jersey or, if the party is a corporation, the
corporation’s registered or principal office,
and if sent to the
authorized representative of a party shall be deemed to have been sent or given
to that party.
(2) A
party may at any time by notice to the secretary and to the other party change the
party’s address for service under these Rules.
(3) Where
a notice of appeal is not delivered, it shall be sent by the recorded delivery
service.
(4) Where
for any sufficient reason service of any document or notice cannot be effected
in the manner prescribed under this Rule, the chairman may make an order for
substituted service in such manner as the chairman may deem fit and such
service shall have the same effect as service in the manner prescribed under
this Rule.