Make Notes - carefully record exactly what happened in the run-up to the service of the Notice. In particular, note down what was said and done at the time it was served. It is always a good idea to keep contemporaneous notes and to sign and date them at the time they are made. This will be invaluable evidence for the hearing.
2. Time is of the Essence - when a HEPN is served, the officer must apply to the Magistrates Court for a Hygiene Emergency Prohibition Order (“HEPO”) within 3 days of the service of the HEPN, and usually a hearing will be listed within 7 days. This does not leave much time to prepare your case.
3. Free Half Hour - call Roythornes and use your free half hour. We are happy to discuss any potential new case. If we can resolve the case for you within 30 minutes, we will not charge any fees. If we believe you need to either take step 4 or 5 we will provide a clear fixed fee for the necessary work and you can take a decision at that time as to whether you wish to instruct us. In the case of the service of a HEPN we are extremely unlikely to be able to resolve the matter for you within the “free half hour” but we will be able to provide you with a strategy and a fixed fee quote within this time.
4. Consider the Defences - the defences against HEPNs are not always factual (i.e. the Regulator was wrong about a particular hygiene problem or it has already been rectified), there can also be legal defences. Our specialist legal team will be able to draw out the possible legal defences such as if the HEPN was not validly served or the risk requirements not satisfied.
5. Hearing - If the regulator has not withdrawn the HEPN before the hearing, it will be necessary to attend the Magistrates Court to defend the regulator’s application for a HEPO.
If at the hearing in the Magistrates Court, the Magistrate is not satisfied that there is an imminent risk of injury to health due to the conditions at the premises, the HEPN ceases to have effect and the Regulator must compensate the FBO in respect of any loss suffered by complying with the HEPN i.e. loss of business while closed down, legal costs in relation to the application. If you are found to be in breach of the HEPN then that is a criminal offence. For example by continuing to operate while the HEPN is in force.