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On the basis of prevention being better than an expensive cure, we thought it worth offering some tips to avoid a trip (real or virtual) to the Magistrates’ Court in 2021 on street works related prosecutions – with its potential adverse reputational and financial consequences.
Our tips are as follows:
- Ensure that your staff and contractor teams understand the requirements that have to be met and are equipped to meet them;
- Robustly audit and monitor compliance of works done by direct labour and contractors;
- Monitor defect reports and FPNs and address any substantive issues that are identified;
- Respond in a timely and effective fashion to any alleged non-compliance that might give rise to a prosecution; and
- Undertake root cause analysis on any problems identified and implement effective change to reduce the risk of re-occurrence.
Applying similar processes, the risks posed by FPNs, s.74 charges and defect inspections fees can also be reduced. Every FPN is a potential criminal prosecution.
If your business has the misfortune to find itself facing criminal prosecution or civil disputes under the New Roads and Street Works Act 1991 and related legislation, our team has extensive experience of advising and training undertakers and their contractors on street works compliance and defending related criminal prosecutions and civil disputes.
Do contact us if you think we can assist in reducing your legal risks from street works.
One of the more complex aspects for applicants seeking Code Powers from Ofcom to consider is that of funds for liabilities. The idea behind funds for liabilities is that there is financial provision made by the applicant prior to it commencing operations against the possibility of it subsequently going ‘pop’, leaving other parties facing liabilities arising from its acts/omissions. Its aim is to avoid some of the problems that arose with the UK cable boom in the 1990s and its subsequent bust which saw various operators going to the wall with unfinished works and apparatus and infrastructure in need of removal.
For many start ups giving consideration to the possibility of failure and making provision for it before they can even commence operations is an unattractive proposition. No one wants to start a business by considering its possible failure. It is however something that has to be done as part of the application under s.106 of the Communications Act 2003 for a direction applying the Electronic Communications Code. The requirements for funds for liabilities arises under Regulation 16 of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003. Those regulations detail the potential liabilities and circumstances that need to be addressed.
Ofcom does have Guidelines on Assessing Funds for Liabilities under Regulation 16 of the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 that can be found via this link. These guidelines are a useful starting point for an applicant considering this aspect.
Determining what may be an appropriate level of funds for liabilities provision and how it should be made is something that requires careful consideration of the nature and scope of the proposed operation. One also has to take account of financial reality in terms of what provision a potential start up business might afford to make. There is not therefore a ‘one size fits all’ funds for liabilities provision and each application needs careful consideration to ensure that an appropriate level of provision is made.
There is no requirement that funds for liabilities are in place before the grant of Code Powers. However, provision of those funds does have to be in place before Code Powers are exercised.
Another aspect that does occasionally appear to get overlooked is that the funds for liabilities need to be reviewed on an annual basis by a party holding and exercising Code Powers. If an applicant has been successful in its roll out, the appropriate level of funds for liabilities provision in year three of its operation may be significantly different in terms of amount and method of provision.
- advise companies on whether they are eligible to secure Code Powers;
- advise on funds for liabilities requirements;
- apply to Ofcom and secure Code Powers on behalf of companies; and
- advise new and existing Code Power operators on the extent and operation of their Code Powers and their wider regulatory responsibilities.
Contact us if we can assist you in respect of the Electronic Communications Code.
Judicial Review is a legal remedy that is frequently mentioned in respect of challenging decisions by public sector bodies. Whilst it certainly has its place in the lawyer’s tool box, it is a process that must be approached with some caution.
As a remedy, Judicial Review is principally aimed at ensuring that bodies exercising public law functions exercise those functions lawfully and fairly and do not abuse their powers. It is possibly less concerned about the actual merits of the decision that was reached and more concerned with the process that was adopted to reach that decision.
In terms of where Judicial Review sits in a lawyer’s tool box, it may be seen as more a tool of last rather than first resort. Generally speaking all other challenge and/or appeal routes against the decision in question need to be exhausted before one can turn to Judicial Review. An application for Judicial Review is also subject to stringent time limits so one has to be careful about ensuring that all necessary steps are complied with as promptly as possible.
In the ordinary course of events the initial application to Court will be for permission to proceed with the Judicial Review, which can and will face detailed scrutiny. Only if the permission stage is successfully passed will the Judicial Review proceed to full hearing.
Whilst the outcome of a Judicial Review may be in an applicant’s favour, it is also possible that the decision making body might subsequently make a similar decision but this time correctly based and justified. It is therefore always important to take a strategic approach to Judicial Review.
We regularly advise parties on challenging the decisions of public law function exercising bodies and Judicial Review.
Contact us if you want to discuss challenging public sector decision making processes and Judicial Review.