Decision: The appeal is struck out.
REASONS
The Application
- On 10 February 2025 the Office of Product Safety and Standards ("OPSS"), who is the Respondent, applied for the Appeal to be struck out under Rule 8(3)(c) of the Tribunal Procedure (First-Tier Tribunal) (General Regulatory Chamber) Rules 2009 (the "Rules").
Background
- The Appellant is a manufacturer and seller of wood-burning stoves. The OPSS is the market surveillance authority for the purposes of enforcing the Ecodesign for Energy-Related Products Regulations 2010 (the "2010 Regulations"). Under the 2010 regulations, products sold on or after 1 January 2022 needed to comply with prescribed requirement.
- On 27 February 2024, OPSS wrote to the Appellant to formally request documentation to demonstrate compliance with the 2010 Regulations in respect of 10 models of stove manufactured by the Appellant. The documents requested included a Declaration of Conformity and various documentation relevant to the Conformity Assessment Procedure.
- (On the same date, OPSS also wrote to the Appellant requesting documentation to demonstrate compliance with the Energy Information Regulations 2011 (the "2011 Regulations"). The OPSS subsequently issued a Compliance Notice and Stop Notice for non-compliance with the 2011 Regulations in parallel with those for the 2010 Regulations, but these do not form part of the current appeal and are not dealt with further in this decision.)
- OPSS did not receive a response from the Appellant in relation to its letter dated 27 February 2024. Accordingly, on 28 June 2024, OPSS gave formal notice of its intention to serve a Compliance Notice ("CN") on the Appellant under Regulation 13(b) and paragraph 2(1)(a) of Schedule 5 of the 2010 Regulations.
- In the meantime, OPSS purchased one of the models of stove manufactured by the Appellant for independent testing. It wrote to the Appellant on 5 August 2024 to advise that the product had not met the required standard in relation to energy efficiency when tested.
- On 21 August 2024, OPSS issued a Final CN to the Appellant under the 2010 Regulations, requiring it to make available the documentation which had previously been requested. The Appellant did not comply with the CN.
- On 21 October 2024, OPSS issued a Stop Notice ("the SN") to the Appellant under the 2010 Regulations prohibiting it from making the products available on the UK market until the required documentation was made available for inspection.
The Appeal
- On 18 November 2024, the Appellant appealed the SN issued under the 2010 Regulations (Reference C-00015326). No appeal was made in relation to the Stop Notice issued under the 2011 Regulations.
- At Section 7 of the Notice of Appeal, the Appellant set out the following grounds for appeal "The decision to serve the notice was wrong. These are European Standards. The Ecodesign standard is not working and is unsuitable due to the many varied flues and chimneys in the UK. The energy label is misleading many stoves are not working as tested. Clearview Stoves have been tested and used in smoke control areas due to an act of parliament."
- The Appellant provided several pages of supporting material and went on to summarise his points as follows (emphasis in original):
"Energy labelling wood burning stoves is misleading: More heat will often be provided by a stove with a lower energy rating. A warmer flue can provide a more consistent flue draft offering additional heat and improved performance. A more responsive stove that is quick and easy to light will be used more and will provide a dependable performance in most UK situations. The Ecodesign standard is not working: Adding additional baffles, restrictions and doubling the wearing parts increases costs, requires extra maintenance and makes stoves sluggish and difficult to use. The many and varied configurations of flues and chimneys in the UK must be considered. Ecodesign stoves often spill smoke into the living space. One of the benefits of a stove should be the additional air changes and passive ventilation that they provide. Ecodesign stoves are being altered, parts are being removed or alternative components are being provided to improve operation and reduce smoke spillage. Clearview Stoves have provided case studies illustrating smoke spillage from Ecodesign stoves. Stoves have been removed, smoking was cured by fitting Clearview Stoves. Persistent smoke spillage should not be tolerated. In the interest of safety and comfort, [OPSS] have a duty to investigate and warn owners of offending stoves. It is likely that numerous households are tolerating unnecessary smoke spillage from Ecodesign stoves while being told "you must be doing something wrong." In all cases when an Ecodesign stove has been replaced with a Clearview Stove the Clearview has been a major improvement. Contrary to the Ecodesign requirement for sustainable products: Many Ecodesign stoves are "not durable, reliable and easy to maintain and will become prematurely obsolete. Spare parts will surely be expensive or unavailable even if it was likely they would be fitted."
- At Section 8 of the Notice of Appeal, the Appellant stated that it sought the following outcomes "Stop Notice set aside. Review of Standards. Compensation for our costs. Bad publicity trying to shoot the whistleblowers".
- OPSS responded on 9 February 2025 and set out in its response under Rule 23 its reasons for seeking to strike the Appeal out under Rule 8(3)(c). It made the following submissions:
"28. The parameters of an appeal to this Tribunal are, while expanses, limited to those grounds set out at paragraph 15 of Schedule 5 of the 2010 Regulations. The Appellant has identified no error of fact or law, no unreasonableness and no other relevant error in the Respondent's actions. In particular
a. It appears not to be disputed (and nor could it sensibly be disputed) that the [2010] Regulations do in law apply to the Appellant's products as listed in the Stop Notices, that those products had been placed on the UK market, that the Appellant had received a request from the Respondent to inspect the relevant documentation and that it did not make available that documentation to the Respondent.
b. The steps specified in the Stop Notice (namely, to remove the products from the market until the relevant documentation had been provided) were entirely reasonable and in accordance with the overall objective of the Regulations.
c. The decision to issue the Stop Notice was also reasonable and indeed entirely unsurprising given the factual history. The Respondent had allowed the Appellant ample time to provide the documentation for inspection, and had sought to engage in constructive dialogue. Its conclusion that a Stop Notice was warranted cannot be faulted.
d. The other matters raided by the Appellant (for example the Appellant's carbon footprint or the effect of regulations on British business) are irrelevant, unevidenced and do not affect the correctness of the decision to issue the Stop Notice.
29. The Appellant's grounds largely constitute an attack on the 2010 Regulations themselves. It is not accepted that there is any merit in its criticisms, but in any event such a challenge could only be brought, if at all, in the Administrative Court pursuant to CPR 54.
30. As to the allegation that the Respondent has incorrectly handled the Appellant's evidence of the operation of other stoves, and/or wrongly directed the Appellant to direct that evidence elsewhere, and/or is trying to "shoot the whistleblower": it is not accepted that the Respondent has acted improperly in any way and such allegations are wholly unsupported and without foundation, but in any event evidence concerning the operation of rival stoves would not affect the correctness of this decision. The Appellant was obliged to provide the specified documentation in relation to its own stoves, and did not do so.
31. As to remedies: only the first and third remedies sought (to set aside the Stop Notice and to award compensation) are in principle available to the Appellant. The Tribunal has no power to order a review of standards. The fourth remedy sought ("bad publicity trying to shoot the whistleblowers") is not understood."
The legal framework
- Under paragraph 15(1) of Schedule 5 of the 2010 Regulations, the person on whom a SN is served may appeal to the Tribunal against the decision to serve it. The grounds for appeal are set out in 15(2) and the applicable ones in this case are as follows:"(a)that the decision was based on an error of fact; (b) that the decision was wrong in law; (c) that the decision was unreasonable; (d) that any step specified in the notice is unreasonable; ...(f) that the person was not likely to make an energy-related product available on the market and would not have made it available on the market if the stop notice had not been served; ...(h) that the decision was wrong for any other reason."
- The role of the Tribunal is set out in Part 7 of Schedule 5 to the 2010 Regulations. Paragraph 27(6) provides that the Tribunal may in relation to the imposition of a requirement or service of a notice:
- Withdraw the requirement or notice;
- Confirm the requirement or notice;
- Vary the requirement or notice;
- Take such steps as the market surveillance authority could take in relation to the act or omission giving rise to the requirement or notice;
- Remit the decision whether to confirm the requirement or notice, or any matter relating to that decision, to the market surveillance authority.
Striking out an Appeal under Rule 8(3)(c)
- Rule 8 of the Tribunal Rules provides that: -
"(3) The Tribunal may strike out the whole or a part of the proceedings if...
(c) the Tribunal considers there is no reasonable prospect of the appellant's case, or part of it, succeeding."
- In HMRC -v- Fairford Group (in liquidation) and Fairford Partnership Group (in liquidation) [2014] UKUT 329 the Upper Tribunal summarised the task to be carried out by a Tribunal in these circumstances: -
- "41. In our judgment an application to strike out in the FTT under Rule 8(3)(c) should be considered in a similar way to an application under CPR 3.4 in civil proceedings (whilst recognising that there is no equivalent jurisdiction in the First-tier Tribunal Rules to summary judgment under Part 24). The Tribunal must consider whether there is a realistic, as opposed to a fanciful (in the sense of it being entirely without substance) prospect of succeeding on the issue at a full hearing, see Swain v Hillman [2001] 2 All ER 91 and Three Rivers (see above) Lord Hope at [95]. A 'realistic' prospect of success is one that carries some degree of conviction and not one that is merely arguable, see ED & F Man Liquid Products v Patel [2003] EWCA Civ 472. The tribunal must avoid conducting a 'mini-trial'. As Lord Hope observed in Three Rivers, the strike out procedure is to deal with cases that are not fit for a full hearing at all"
- In AW-v-Information Commissioner and Blackpool CC [2013] 30 ACC the Upper Tribunal at paragraph 7ff set out the principles governing the application of rule 8(3)(c). These included: -
"7
It is well established in the ordinary courts that the historic justification for striking out a claim is that the proceedings are an abuse of process
. On that basis, the power should only be exercised in plain and obvious cases
8. More recent rulings from the superior courts point to the need to look at the interests of justice as a whole
.It is, moreover, plainly a decision which involves a balancing exercise and the exercise of a judicial discretion, taking into account in particular the requirements of Rule 2 of the GRC Rules."
Application procedure and matters considered
- As required by rule 8(4) the Appellant was informed of OPSS' application through service of the Rule 23 Response.
- In reaching my Decision I had regard to the GRC5 Application by OPSS with supporting bundle, the Notice of Appeal with supporting documentation and OPSS' Response. I also considered the overriding objective in Rule 2 of the Tribunal rules.
Conclusions
- It is clear from its Appeal that the Appellant feels strongly that the 2010 Regulations are not fit for purpose and that there are wider issues in relation to energy efficiency and/or trading standards in this sector. The Appellant states in the grounds of appeal that "these are European Standards" and went on to say "the Ecodesign standard is not working and is unsuitable due to the many varied flues and chimneys in the UK".
- However, the Tribunal has no jurisdiction to deal with challenges to the substance of the legislation itself; I agree with OPSS that if the Appellant wished to make such a challenge, the appropriate forum for this would be the Administrative Court by way of judicial review proceedings. I also agree with OPSS that the Tribunal has no power to order a review of standards.
- The Tribunal's power under the 2010 Regulations is limited to determining whether OPSS' decision to issue an SN was correct in that it was not based on an error of fact or law, or unreasonable or wrong in any other way.
- Although the Appellant does assert in its grounds of appeal that the decision was wrong, it does not explain why OPSS was wrong or unreasonable in issuing the SN. For example, it does not say that the 2010 regulations did not apply to it. It also does not dispute that it received several requests to inspect the required documentation to demonstrate compliance with the 2010 Regulations or that it failed to make the documentation available in response. There does not appear to me to be any challenge to the facts surrounding the issue of the SN in October 2024. Nor does there appear to be any assertion that OPSS was not entitled to issue the SN under the 2010 Regulations or that it acted unreasonably in doing so. There is no suggestion that the Appellant was not likely to make an energy-related product available on the market and would not have made it available on the market if the stop notice had not been served. I therefore agree with OPSS that the Appellant has identified no error of fact or law, no unreasonableness and no other relevant error in OPSS' actions. The situation boils down to this: The Appellant was required to make available documentation to demonstrate compliance with the 2010 Regulations. It failed to do so. OPSS was thus entitled to impose the SN pending demonstration of compliance and it did so.
- I concluded that while the Appellant has explained its concerns in detail, there is not enough of a challenge in fact or law to the issue of the SN for there to be a reasonable prospect of the Appellant's case or part of it succeeding.
Decision
- Accordingly, the Appeal is struck out under Rule 8(3)(c) because in my view it has no reasonable prospect of succeeding.
Signed: Judge Harris
Date: 24 April 2025
