PART 9Enforcement

Referral of complaint to the Secretary of State

regulation 19 + 19.—(1) A qualifying seller may refer a relevant complaint to the Secretary of State.

(2) A “relevant complaint” is a complaint that—

regulation 19 2 a + (a)a pig purchase contract to which the qualifying seller is a party is not compliant with the obligations of these Regulations; or

regulation 19 2 b + (b)the business purchaser has failed to comply with the obligation to provide an explanation in accordance with regulation 9(9) following a request by the qualifying seller under regulation 9(7) (request for explanation regarding pricing).

(3) To refer a relevant complaint, a qualifying seller must give a written notice to the Secretary of State that includes—

regulation 19 3 a + (a)the details of the alleged failure to comply;

regulation 19 3 b + (b)any evidence of the alleged failure to comply;

regulation 19 3 c + (c)a statement as to whether the qualifying seller is seeking compensation from the business purchaser concerned;

regulation 19 3 d + (d)the amount of any compensation sought; and

regulation 19 3 e + (e)the reasons why such compensation is sought.

(4) A relevant complaint may not be referred to the Secretary of State unless—

regulation 19 4 a + (a)the qualifying seller has made the complaint, or, in the opinion of the Secretary of State, a substantially similar complaint, to the business purchaser under the pig purchase contract’s dispute resolution procedure (see regulation 17) and 28 days have passed beginning with the day on which the complaint was made to the business purchaser; or

regulation 19 4 b + (b)the pig purchase contract makes no provision for a dispute resolution procedure or otherwise fails to comply with regulation 17.

(5) A qualifying seller may not refer a relevant complaint to the Secretary of State that the Secretary of State has already decided unless—

regulation 19 5 a + (a)new evidence is available; and

regulation 19 5 b + (b)the decision made by the Secretary of State was that no requirement was to be imposed under regulation 20(1).

(6) After receiving the relevant complaint, the Secretary of State must give a notice to the business purchaser that—

regulation 19 6 a + (a)includes the relevant complaint;

regulation 19 6 b + (b)asks the business purchaser to respond to the allegations made in the complaint; and

regulation 19 6 c + (c)gives a date by which the business purchaser must reply.

(7) The Secretary of State may—

regulation 19 7 a + (a)investigate a case where a relevant complaint is referred to the Secretary of State;

regulation 19 7 b + (b)require the parties to the pig purchase contract to submit evidence relating to the relevant complaint;

regulation 19 7 c + (c)consider other failures to comply with these Regulations that did not form part of the complaint made to the business purchaser.

(8) Evidence able to be requested by the Secretary of State includes—

regulation 19 8 a + (a)documents, including those in digital format, in the possession, or under the control, of the party;

regulation 19 8 b + (b)witness evidence, whether provided by way of a written statement or orally; and

regulation 19 8 c + (c)any other evidence the Secretary of State considers relevant.

(9) A request for evidence under paragraph (7)(b) must be in writing and include—

regulation 19 9 a + (a)a statement that the request is made under paragraph (7)(b);

regulation 19 9 b + (b)the name, or a description, of the person from whom the evidence is being requested;

regulation 19 9 c + (c)a description of the evidence being requested;

regulation 19 9 d + (d)the method by which the evidence is required to be submitted;

regulation 19 9 e + (e)the address to which the evidence is to be sent;

regulation 19 9 f + (f)the period within which the evidence is to be provided; and

regulation 19 9 g + (g)a statement that failing to comply with the request—

regulation 19 9 g i + (i)may cause the Secretary of State to draw an adverse inference against the person in respect of the complaint; or

regulation 19 9 g ii + (ii)may lead to civil proceedings being brought to obtain the evidence (in respect of which, see paragraph (12)).

(10) The address referred to in paragraph (9)(e) may be an electronic address.

(11) The business purchaser must cooperate with an investigation of the Secretary of State under paragraph (7)(a).

(12) The Secretary of State may enforce the requirement to provide evidence by bringing civil proceedings to obtain—

regulation 19 12 a + (a)in England and Wales or Northern Ireland, an injunction;

regulation 19 12 b + (b)in Scotland, an order for specific performance under section 45 of the Court of Session Act 1988(1).

Power to impose a civil penalty or require compensation

regulation 20 + 20.—(1) Where the Secretary of State finds that a business purchaser has failed to comply with a requirement under these Regulations, the Secretary of State may require the business purchaser to pay either, or both, of the following—

regulation 20 1 a + (a)a civil penalty;

regulation 20 1 b + (b)compensation to the qualifying seller.

(2) A business purchaser may be required to pay a civil penalty or compensation in respect of each and every failure to comply with these Regulations.

(3) The maximum amount of a civil penalty is 1% of the business purchaser’s turnover.

(4) The Secretary of State may recover any unpaid civil penalty as a debt.

(5) Sums received by the Secretary of State as payment for civil penalties are to be paid into the consolidated fund.

(6) A business purchaser’s “turnover” is the business purchaser’s applicable turnover for the business year preceding the date of the notice of decision under regulation 24.

(7) Where the business year preceding the date of the decision notice did not equal twelve months, the turnover is the business purchaser’s applicable turnover for that business year divided by the number of months in that business year and multiplied by twelve.

(8) Where there was no preceding business year, the turnover is the applicable turnover for the twelve months ending on the last day of the month preceding the month in which the Secretary of State gave the decision notice to the business purchaser.

(9) Where in the application of paragraph (8) the business purchaser has turnover for a period of less than twelve months, the turnover is the applicable turnover in that period divided by the number of months in that period and multiplied by twelve.

(10) In this regulation—

“applicable turnover” is the sum of—

after deduction of trade discounts, value added tax and other taxes based on the amounts so derived or received;

term business year + “business year” means a period of more than six months in respect of which a business purchaser published accounts or, if no such accounts were published for the period, prepared accounts.

(11) Amounts are to be calculated in conformity with generally accepted accounting principles and practices.

Requirement of the Secretary of State to publish guidance

regulation 21 + 21.—(1) The Secretary of State must publish guidance relating to the imposition of a requirement under regulation 20(1).

(2) The guidance must include—

regulation 21 2 a + (a)the matters to be taken into account in determining the amount of the civil penalty or compensation payable;

regulation 21 2 b + (b)the rights of the business purchaser and qualifying seller to make representations under regulation 23;

regulation 21 2 c + (c)the right of the business purchaser and qualifying seller to appeal against a decision to impose a requirement.

(3) The guidance must be reviewed and revised from time to time.

(4) The Secretary of State must have regard to the guidance when exercising the power in regulation 20(1).

Notice of intent

regulation 22 + 22.—(1) Where the Secretary of State proposes to require a business purchaser to pay a civil penalty or pay compensation, the Secretary of State must first give them a notice of intent.

(2) A “notice of intent” is a written notice including—

regulation 22 2 a + (a)a description of the breach which the Secretary of State considers has been committed;

regulation 22 2 b + (b)the evidence being relied upon;

regulation 22 2 c + (c)the requirement under regulation 20(1) the Secretary of State proposes to impose; and

regulation 22 2 d + (d)a statement that the business purchaser has a right to make representations in accordance with regulation 23 and how to make such representations.

(3) Before the expiry of 7 days beginning with the day after the day on which the Secretary of State gives a notice of intent, the Secretary of State must send—

regulation 22 3 a + (a)a copy of the notice of intent to the qualifying seller; and

regulation 22 3 b + (b)where the Secretary of State proposes to require the business purchaser to pay compensation to a qualifying seller, a written notice setting out that qualifying seller’s right to make representations in respect of the compensation.

Representations

regulation 23 + 23.—(1) A business purchaser to whom a notice of intent is given may, within 28 days beginning with the day on which the notice was received, make written representations to the Secretary of State in relation to the proposed requirement to pay a civil penalty or pay compensation.

(2) A qualifying seller who is notified under regulation 22(3)(b) that the Secretary of State proposes to require the business purchaser to pay compensation to them may, within 28 days beginning with the day on which the notice was received, make written representations to the Secretary of State in relation to the amount of that compensation.

Notice of decision

regulation 24 + 24.—(1) After the expiry of both periods within which the business purchaser and qualifying seller may make representations under regulation 23, the Secretary of State must decide whether to impose a requirement under regulation 20(1).

(2) Where the Secretary of State decides to impose a requirement, it may be that set out in the notice of intent, or a different requirement.

(3) A business purchaser required to pay a civil penalty or pay compensation under regulation 20(1) must do so within 28 days of receiving a notice of decision under paragraph (4).

(4) Where the Secretary of State makes a decision under paragraph (1), the Secretary of State must give a written notice (a “notice of decision”) to the business purchaser setting out—

regulation 24 4 a + (a)where the decision is to impose a requirement under regulation 20(1)—

regulation 24 4 a i + (i)the requirement being imposed;

regulation 24 4 a ii + (ii)the reasons for imposing the requirement;

regulation 24 4 a iii + (iii)the amount to be paid by the business purchaser in respect of each requirement imposed under regulation 20(1);

regulation 24 4 a iv + (iv)an explanation as to how the amount has been calculated;

regulation 24 4 a v + (v)how payment may be made;

regulation 24 4 a vi + (vi)that payment is due within 28 days of the receipt of the notice of decision;

regulation 24 4 a vii + (vii)information about the right to appeal against the imposition of a requirement under regulation 25; and

regulation 24 4 a viii + (viii)where the Secretary of State decides to impose a civil penalty, that the Secretary of State is entitled to recover any unpaid civil penalty as a debt; or

regulation 24 4 b + (b)where the decision is not to impose a requirement under regulation 20(1)—

regulation 24 4 b i + (i)that decision; and

regulation 24 4 b ii + (ii)the reasons for reaching the decision.

(5) Before the expiry of 7 days beginning with the day after the day on which the Secretary of State gives a notice of decision, the Secretary of State must send a copy of the notice to the qualifying seller.

(6) Where the Secretary of State—

regulation 24 6 a + (a)requires the business purchaser to pay compensation to a qualifying seller; or

regulation 24 6 b + (b)decides not to impose a requirement under regulation 20(1) on the business purchaser,

the Secretary of State must include with the copy of the notice of decision under paragraph (5) a written notice setting out the qualifying seller’s right to appeal under regulation 25(2).

Appeals

regulation 25 + 25.—(1) A business purchaser on whom a requirement has been imposed under regulation 20(1) may appeal against—

regulation 25 1 a + (a)the imposition of the requirement;

regulation 25 1 b + (b)the amount of any civil penalty they have been ordered to pay; or

regulation 25 1 c + (c)the amount of any compensation they have been ordered to pay.

(2) A relevant qualifying seller may appeal against—

regulation 25 2 a + (a)a decision of the Secretary of State under regulation 24(1) not to impose a requirement on a relevant business purchaser; or

regulation 25 2 b + (b)the amount of any compensation a relevant business purchaser has been ordered to pay.

(3) An appeal under paragraph (1) or (2) is to be made to the First-Tier Tribunal.

(4) The time limit for payment of a civil penalty or compensation under regulation 24(3) is paused until the appeal is concluded.

(5) Paragraph (6) applies where, following an appeal under this regulation, the First-Tier Tribunal affirms the decision of the Secretary of State or orders the business purchaser to pay any amount to the Secretary of State or qualifying seller.

(6) The business purchaser must make the payment before the expiry of 28 days beginning with the date of the First-Tier Tribunal’s judgment, minus the number of days that expired (if any) between the date on which the business purchaser received the notice of decision and the date on which the appeal was filed.

(7) An appeal under this regulation may be determined having regard to matters of which the Secretary of State was unaware.

(8) In this regulation—

term notice of decision + “notice of decision” has the meaning given in regulation 24(4);

term relevant business purchaser + term relevant qualifying seller + “relevant qualifying seller” means the qualifying seller who referred the complaint to the Secretary of State that resulted in the Secretary of State making a decision under regulation 24(1) and “relevant business purchaser” means the business purchaser against whom the complaint was made.