DPP v Roseberry Ltd

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Hardiman J.
• Judgment Date: 06 February 2003
• Neutral Citation: 2003 WJSC-CCA 4492
• Docket Number: [C.C.A. No. 245 of 2001]
• Date: 06 February 2003

DPP v. ROSEBERRY CONSTRUCTION LTD

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

ROSEBERRY CONSTRUCTION LIMITED

Applicant

2003 WJSC-CCA 4492

245/01

THE COURT OF CRIMINAL APPEAL

Synopsis:

- [2003] 4 IR 338

Facts: The applicant company and a director of the applicant had been involved in a construction project and a fatality had occurred on the site. Subsequently the applicant and the director had been fined in respect of breaches of the Health, Safety Welfare at Work Act, 1989, principally a failure to prepare a safety statement. The applicant sought leave to appeal against the severity of the sentence imposed, a fine of £200,000. In particular it was argued that the fines imposed against the applicant and the director involved some degree of double-counting in the sense that the applicant and the director were basically the same. In addition an issue was raised regarding the trial judge's conclusion on the availability of material on the site in question to shore up trenches. Submissions were also made with regard to the level of the fines imposed.

Held by Court of Criminal Appeal in refusing leave to appeal. The director had decided to incorporate the applicant and in so doing had drawn down the veil of incorporation. The company was created for the express purpose of being a separate entity. The applicant was a medium to large company and the level of fine was not going to drive it out of business. The applicant could not in any significant way mitigate its liability by saying that the sub-contractor was in charge of the area where the fatality occurred given that the control of the site had been retained by the applicant. The failure to have a safety statement and other failures had significantly contributed to what had transpired. There was no prima facie basis for suggesting that the fines imposed were excessive.

Citations:

SAFETY HEALTH & WELFARE AT WORK ACT 1989 S48

COMPANIES ACT 1963

DPP V REDMOND 2001 3 IR 390 2000/8/3164

R V HOWE 1999 2 AER 249

1 6th day of February. 2003 byHardiman J.

Hardiman J.

2 In this case the applicant, which is a corporation, applies for leave to appeal against the severity of sentence, fines totalling £200,000, imposed on it by the Naas Circuit (Criminal) Court on the 21 ^st day of November 2001 on a plea of guilty to breaches of the Health, Safety and Welfare at Work Act 1989, principally failure to prepare a Safety. Statement as required by said statute. A number of points are made, some relating to points of principle, some relating to the specific circumstances of the case. One in particular we think requires attention It is to the effect that the penalties imposed, bearing in mind that the principal of the company was also fined, amount in some degree to double counting, because as Mr. McMahon SC for the applicant said the director, Mr. McIntyre and the company were basically the same thing. That is a point of view on which it is perhaps important to express an opinion. There is no obligation on any person conducting a trade, whether it is the building trade or any other business, to incorporate the business which he is conducting. He is entitled to trade, as no doubt he started, in his own name, and to bear personally the risks attaching to that, the commercial risks. Mr. McIntyre, as many other people, chose not to do this but to incorporate a company for the purpose of interposing the company between himself and various liabilities which might arise in the course of business. That is a thing which a person is fully entitled to do. If someone sued Mr. McIntyre in respect of the liabilities of the company, one can assume Mr. McIntyre or his lawyers would be quick to point out that these are two...