Guidance: How the courts use and apply guidance

 FAQ

What is guidance? 

In litigation, guidance is part of the evidence relied on by the parties in the case. It is not immediately admissible and is adduced typically through witness statements, expert opinion, and exhibits. 

 

Do you have to comply with guidance? 

It is true that you don't have to comply with the guidance in the same way you comply with legislation. Not following a piece of guidance is not an offence. When a court evaluates whether a defendant has broken the law, it reaches such a finding by referencing the evidence in the case within a legal framework.

In most cases, the legal framework will agree between the parties and the court (settled law) and be non-contentious. The case will turn on the strength of the evidence in the case and how well it is presented. 

 

How is guidance used in court? 

Cases won't get to a trial unless there is sufficient evidence in support of both parties' cases. Both sides, in effect, have a list of evidence that supports their case and some that do not. Guidance is admitted as evidence to help both parties substantiate their case and damage their opponent's case. It may be a factor that wasn't considered, a feature that falls outside stated parameters, or a way of working that wasn't followed. 

 

What if you were unaware of the guidance?

It is rarely an excuse in law to say that you were unaware of the requirements included within guidance, even if you were, in fact, unaware. Guidance is viewed by the court as representative of the standards upheld by those in a similar position to the defendant.  Where a defendant falls short of that guidance, it supports the assertion that a defendant failed to discharge their duty in accordance with a legal requirement sufficiently. 

There is some leniency if an incident occurs shortly after guidance has been published. The Courts accept the notion of a reasonable time to implement changes. However, the Courts have repeatedly emphasised that this is rarely over 12 months. 

 

If you comply with the guidance, will you meet your legal obligations?

Not necessarily, but it will certainly help. It is always easier to support your position when you can rely on the views of others from your industry who also follow the same or similar practice that you adopted prior to or during an incident. 

However, complying with a single guidance document does not prevent you from being criticised for failing to follow other published guidance, and you may still fail to discharge your legal duty. It is important to review the available guidance and build your operating practices from the totality of the guidance rather than rely on a single source or document. 

 

What happens if there is no guidance for a particular issue? 

As a safety professional, where this is the case, it can make identifying adequate control measures more challenging. Situations where there is no published guidance present a double-edged sword because they are also difficult cases for claimants and prosecutors to bring. 

As an operator, you need to be sure there is no published guidance on an issue before you move to create your own ways of working. If you proceed to create your own ways of working, and later it transpires guidance was available, it will be easier for a claimant or prosecutor to bring a case against you.

The better route to adopt where no, little, or inadequate guidance is present is to collaborate with your industry partners to create guidance to fill the void. This can help bring clarity and predictability to the standards against which you and other operators will be measured. 

 

Can I adopt a practice contrary to the guidance? 

Yes, but you will need support beyond your own data and judgment. Once you are involved in litigation, the views, data, and documents you express are, in effect, considered self-serving. A claim or prosecution will only be brought where there is evidence supporting their position, and part of that evidence will be the guidance you did not take account of or conform to. 

You will need to be able to turn to others for support. Standards or guidance published by independent, impartial, and informed committees or peer-reviewed researchers is likely to be your main source of support to justify your position. 

 

Is all guidance of equal evidential weight? 

Aside from guidance endorsed by statute, such as HSE ACOPs, the starting position is that all guidance is of equal value. However, in practice, when and how the guidance was produced, its accessibility, independence, integrity, and adoption by others in a similar position/locality are likely to mean some guidance is given more weight by judges and juries than others.  

Judges have a sixth sense for guidance published by the industry to be self-serving, especially when it results in reduced safety standards. Failing to consult with a representative group of stakeholders is unlikely to result in guidance of high probative value. 

 

Is it a good idea to adhere to guidance?

In short, yes. You are likely to reduce your litigation risk and increase safety performance substantially. The more guidance your processes and practice is aligned around, the more resilient your organization and the safety of its people/customers are likely to be.  

 

Citation: Jacklin, D. 2021. How do the Courts use and apply guidance? Water Incident Research Hub, 21 November.