2012 to 2019 BBMM Area 10 claims saw the contractor use CECA rates when billing Third Parties (drivers, fleets, hauliers & insurers) on claims under £10,000 but ‘mates rates’ (far lower figures) when invoicing Highways England for attendance & repair when the bill was over £10,000. Same operatives, plant and materials … differing rates. Why?
In 2018, His Honour Judge Godsmark QC commented upon an increasing number of DCP (damage to Crown property) matters arriving in the County Court at Nottingham. HH Godsmark therefore took a case onto the fast-track for trial as Designated Civil Judge in the hope of providing some guidance to parties and District Judges (at least in his area). The Judgement can be found here.
But was the judge misled?
BBMM’s witness, in the name of Highways England, explained to Court:
‘the £10,000 + rates were negotiated prescribed rates which were in part subsidised by the lump sum paid under the agreement’.
The Judge accepted the over-£10k rates ‘are to that extent artificial in that they do not stand alone as representing the price of repair. They are in effect preferential rates‘ … ‘they are partly subsidised by the lump sum‘ adding ‘No-one can suggest anything else‘.
- what if the above-£10k rates are not subsidised; why misrepresent facts to a Court if the charges represent the reasonable cost of repair of the damaged barrier (as opposed to the actual cost)?
- are CECA rates reasonable, appropriate?
- can anyone suggest something else?
- BBMM relies on those parts of the Judgement finding for them (possibly because the Judge was misled?) but not those that saw their CECA+ uplift removed. Whilst the Judge found ‘the additional 10% Administration Charge is not a reasonable addition to the CECA rates and would thus lead to an unreasonable repair total. It is disallowed‘
The information in our possession indicates:
- above-£10k rates are not subsidised by the monthly lump-sum payment
- CECA Rates are not appropriate
- BBMM could have suggested something else
We understand BBMM’s witness has a number of Court attendances. Drivers, fleets, hauliers and insurers are therefore alerted to the evidence in support of our concerns at 1 – 3 (above) which can be found here.
Of further concern is that HH Godsmark has recorded several references to the ‘rates’ agreed between Highways England and their contractor. For example:
BBMM do have agreed rates with Highways England for repairs where the total is over £10,000.
However, Highways England state there is no such schedule writing
DCP (‘damage to Crown property’) Rates – the ASC contract does not contain a
schedule that is used for DCP rates.
The existence of rates has been progressed separately and more information can be found here.