Win, Lose or Draw?

I saw a case reported recently – a terrible, avoidable accident resulting in a death, leading to a surprisingly modest fine – and it made me think. What makes a ‘winner’ in safety enforcement? What is a good result?

My practice is mainly in defending companies and directors facing regulatory enforcement, which, more often than not, is safety enforcement. A ‘win’ might be a client’s rights asserted and protected, an overzealous inspector set back on the right track, an investigation not leading to charges, charges defended successfully or, in a lot of cases, a ‘good’ outcome in terms of the fine (or worse) imposed. But what’s the bigger picture?

Often, there’s been an accident - and quite often a death. HSE might see a successful prosecution as a win, but is it? Does it drive the change needed or is it just heaping misfortune on top of misfortune? Many accidents are just that - accidents. Sometimes there are failings, some big, some small, but does the bringing of a prosecution 2, 3, 5 or more years later make the difference? Is the threat of a fine somewhere down the line enough to make everyone sit up and take notice?

A business might view an investigation dropped, or charges defended or that ‘good’ result in financial terms as a win, but the damage that was done – here, the loss of life - remains. And the damage to a business stemming from an incident in terms of morale, reputation, lost time in dealing with the investigation, and in terms of how it conducts itself in future can be far more wide-ranging.

The ripple effect through a business, even if they were right and the prosecution wrong, even if the result is acquittal, can be profound. I’ve seen businesses that have ‘won’ destroyed by the reputational harm in the process, and dedicated professionals rendered almost redundant through their dedication to handling a case – because whilst they were busy fighting the case, the business had to bring in someone else to do their job, and afterwards, what then?

Lawyers – and I’m no better than the rest for this – tend to focus on the case in hand, the current threat, the listed trial, and winning is often seen as getting the ‘best’ result that you can in the circumstances. Often accidents occur in routine activities that will go on for many more years to come. Businesses need legal support to defend cases but also to support reflection and improvement – to do better in future, where they can.

And the case that made me think, what happened there? The modest fine reflected the fact that the company – a business on the brink of being a ‘large’ company for sentencing purposes (historic turnover circa £50M), with many years successful trading behind it – had recently appointed an administrator and was headed for insolvency. No winners. A very sad death, a business destroyed and a ‘result’ chalked up with a modest fine that to casual readers will cause no alarm – and arguably do little to drive improvement and change.

The only real winners are the non-runners – the businesses that don’t have accidents and don’t face lengthy, drawn-out trials.

How do they achieve that?

Get it right in the first place, for starters, but when things do go wrong:

• Get good, prompt advice to manage the process and keep it in perspective in relation to the wider business.

• Work collaboratively with those advisors to make a mature assessment of the situation – to get the best result not just in the immediate case but for the business as a whole for the long term.