(1)Subject to subsections (2) and (5) and section 26 below, where the Director is satisfied that a licence holder is contravening, or is likely to contravene, any relevant condition or requirement, he shall by a final order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.
(2)Subject to subsection (5) below, where it appears to the Director—
(a)that a licence holder is contravening, or is likely to contravene, any relevant condition or requirement; and
(b)that it is requisite that a provisional order be made,
he shall (instead of taking steps towards the making of a final order) by a provisional order make such provision as appears to him requisite for the purpose of securing compliance with that condition or requirement.
(3)In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional order be made, the Director shall have regard, in particular—
(a)to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of the relevant condition or requirement, is likely to be done, or omitted to be done, before a final order may be made; and
(b)to the fact that the effect of the provisions of this section and section 27 below is to exclude the availability of any remedy (apart from under those provisions or for negligence) in respect of any contravention of a relevant condition or requirement.
(4)Subject to subsection (5) and section 26 below, the Director shall confirm a provisional order, with or without modifications, if—
(a)he is satisfied that the licence holder to whom the order relates is contravening, or is likely to contravene, any relevant condition or requirement; and
(b)the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition or requirement.
(5)The Director shall not make a final order or make or confirm a provisional order in relation to a licence holder if he is satisfied—
(a)that the duties imposed on him by section 3 above preclude the making or, as the case may be, the confirmation of the order;
(b)that the licence holder has agreed to take and is taking all such steps as it appears to the Director for the time being to be appropriate for the licence holder to take for the purpose of securing or facilitating compliance with the condition or requirement in question; or
(c)that the contraventions were, or the apprehended contraventions are, of a trivial nature.
(6)Where the Director is satisfied as mentioned in subsection (5) above, he shall—
(a)serve notice that he is so satisfied on the licence holder; and
(b)publish the notice in such manner as he considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
(7)A final or provisional order—
(a)shall require the licence holder to whom it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;
(b)shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and
(c)may be revoked at any time by the Director.
(8)In this Part—
“final order” means an order under this section other than a provisional order;
“provisional order” means an order under this section which, if not previously confirmed in accordance with subsection (4) above, will cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order;
“relevant condition”, in relation to a licence holder, means any condition of his licence;
“relevant requirement”, in relation to a licence holder, means any duty or other requirement imposed on him by or under section 9 or sections 16 to 23 above.
(1)Before he makes a final order or confirms a provisional order, the Director shall give notice—
(a)stating that he proposes to make or confirm the order and setting out its effect;
(b)setting out—
(i)the relevant condition or requirement for the purpose of securing compliance with which the order is to be made or confirmed;
(ii)the acts or omissions which, in his opinion, constitute or would constitute contraventions of that condition or requirement; and
(iii)the other facts which, in his opinion, justify the making or confirmation of the order; and
(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed order or proposed confirmation may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
(2)A notice under subsection (1) above shall be given—
(a)by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and
(b)by serving a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, on the licence holder to whom the order relates.
(3)The Director shall not make a final order with modifications, or confirm a provisional order with modifications, except—
(a)with the consent to the modifications of the licence holder to whom the order relates; or
(b)after complying with the requirements of subsection (4) below.
(4)The requirements mentioned in subsection (3) above are that the Director shall—
(a)serve on the licence holder to whom the order relates such notice as appears to him requisite of his proposal to make or confirm the order with modifications;
(b)in that notice specify the period (not being less than 28 days from the date of the service of the notice) within which representations or objections with respect to the proposed modifications may be made; and
(c)consider any representations or objections which are duly made and not withdrawn.
(5)As soon as practicable after making a final order or making or confirming a provisional order, the Director shall—
(a)serve a copy of the order on the licence holder to whom the order relates; and
(b)publish the order in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.
(6)Before revoking a final order or a provisional order which has been confirmed, the Director shall give notice—
(a)stating that he proposes to revoke the order and setting out its effect; and
(b)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed revocation may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
(7)If, after giving a notice under subsection (6) above, the Director decides not to revoke the order to which the notice relates, he shall give notice of his decision.
(8)A notice under subsection (6) or (7) above shall be given—
(a)by publishing the notice in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and
(b)by serving a copy of the notice on the licence holder to whom the order relates.
(1)If the licence holder to whom a final or provisional order relates is aggrieved by the order and desires to question its validity on the ground—
(a)that its making or confirmation was not within the powers of section 25 above; or
(b)that any of the requirements of section 26 above have not been complied with in relation to it,
he may, within 42 days from the date of service on him of a copy of the order, make an application to the court under this section.
(2)On any such application the court may, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the licence holder have been substantially prejudiced by a failure to comply with those requirements, quash the order or any provision of the order.
(3)Except as provided by this section, the validity of a final or provisional order shall not be questioned by any legal proceedings whatever.
(4)The obligation to comply with a final or provisional order shall be a duty owed to any person who may be affected by a contravention of the order.
(5)Where a duty is owed by virtue of subsection (4) above to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit or instance of that person.
(6)In any proceedings brought against a licence holder in pursuance of subsection (5) above, it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the order.
(7)Without prejudice to any right which any person may have by virtue of subsection (5) above to bring civil proceedings in respect of any contravention or apprehended contravention of a final or provisional order, compliance with any such order shall be enforceable by civil proceedings by the Director for an injunction or for interdict or for any other appropriate relief.
(8)In this section and section 28 below “the court” means the High Court in relation to England and Wales and the Court of Session in relation to Scotland.
(1)Where it appears to the Director that a licence holder may be contravening, or may have contravened, any relevant condition or requirement, the Director may, for any purpose connected with such of his functions under section 25 above as are exercisable in relation to that matter, serve a notice under subsection (2) below on any person.
(2)A notice under this subsection is a notice signed by the Director and—
(a)requiring the person on whom it is served to produce, at a time and place specified in the notice, to the Director or to any person appointed by the Director for the purpose, any documents which are specified or described in the notice and are in that person’s custody or under his control; or
(b)requiring that person, if he is carrying on a business, to furnish, at a time and place and in the form and manner specified in the notice, to the Director such information as may be specified or described in the notice.
(3)No person shall be required under this section to produce any documents which he could not be compelled to produce in civil proceedings in the court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.
(4)A person who without reasonable excuse fails to do anything required of him by notice under subsection (2) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(5)A person who intentionally alters, suppresses or destroys any document which he has been required by any notice under subsection (2) above to produce shall be liable—
(a)on summary conviction, to a fine not exceeding the statutory maximum;
(b)on conviction on indictment, to a fine.
(6)If a person makes default in complying with a notice under subsection (2) above, the court may, on the application of the Director, make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.