It is probably common knowledge that fines arising from Criminal Prosecutions for Health and Safety breaches are not covered by a designer’s Professional Indemnity Insurance Policy.

Fines therefore have to be paid out of the company’s assets.

Defending a Health and Safety prosecution can be difficult as the burden of proof is with the defendant to show that he has complied with the relevant legislation- it’s not for the prosecuting authority to establish in what way the legislation has been breached.

Consequently defending criminal prosecutions can be very expensive and may in fact exceed the possible fine that may arise.

This often results in the designer pleading guilty on the basis of getting a reduced fine even though he feels there was no breach.

Although the fine cannot be met by a Professional Indemnity Policy, the defence cost can be.

Many consultants are now considering that a significant feature of a particular PI policy is the ability to recover these defence costs.

Note that not all PI policies offer this cover and the decision to defend a prosecution will rest with the insurer who will look at the merits and likely success of a defence.

Ewan MacGregor
Griffiths and Armour