14/05/2025
In his costs ruling in The King v Falcon Tower Crane Services Ltd, His Honour Judge Everett delivered not only a detailed critique of the HSE’s decision-making in the failed prosecution of Falcon Cranes, but also raised serious concerns about a lesser-known mechanism: the Fee For Intervention (FFI) scheme.
The Judge's comments, made in open court, warrant careful attention from legal professionals, regulators, and businesses alike.
What is Fee For Intervention?
Under the FFI scheme, HSE inspectors are empowered to recover costs from businesses when, during an inspection, they identify a “material breach” of health and safety law. These charges can apply even for relatively minor issues, with rates currently set at £183 per hour (as at April 2025). No fee applies where no breach is found.
Details of the scheme can be found here: HSE FFI Scheme
Judicial Concern: A System Open to Misuse?
In his Ruling following an application for costs under the Prosecution of Offences Act 1985, Judge Everett expressed “extreme surprise” upon learning that HSE inspections may result in charges to companies only where a breach is found, however minor and this is how the HSE funds its operation. He noted:
“Respectfully, it could give rise to, at the very least, an appearance of abuse, because it is a system which could be seen to encourage inspectors to look for extremely minor breaches, where there may be none, simply to cover the costs of any visit.”
He went on to say:
“Although the knowledge of the HSE’s unusual system has played no part in my decision making in this case, I believe that it was worthy of mention, and I would firmly encourage the DWP to reconsider whether this is an approach which is appropriate within a fair and impartial judicial system.”
These remarks highlight what many in industry and the legal profession have long suspected: that a regulator, however well-intentioned, should not be financially incentivised to find fault.
A Question of Fairness
While the FFI scheme was introduced to ensure that non-compliant businesses bear the cost of regulatory intervention, rather than the taxpayer, its implementation has not been without controversy. Legal challenges have been mounted in the past, and business groups have voiced concerns over transparency, proportionality, and independence.
Judge Everett’s ruling now adds the weight of judicial commentary to these concerns. Crucially, he draws a sharp contrast with the approach taken by police forces and the Crown Prosecution Service, who may only recover costs post-conviction and not for investigatory activity.
Conclusion: Time for Review?
Judge Everett’s comments were expressly not determinative of the costs award in the Falcon case, which was decided on wholly separate grounds. Nonetheless, they underline a structural tension in how regulatory enforcement is funded and perceived.
As the Department for Work and Pensions oversees the HSE, the Judge’s recommendation that the FFI scheme be reconsidered should not go unheeded. Transparency, impartiality, and public trust must underpin any system designed to enforce compliance, especially where lives and livelihoods are at stake.