HE Ref:768,003 (768003) / ICO Ref: FS50803075
10/09/2018 FoIA Request To Highways England:
Your lawyers, Corclaim (Shakespeare Martineau LLP) wrote in respect of Coles v Hetherton in 2014 (see below), seemingly before they were instructed by Kier Highways Ltd and yourselves to pursue claims against drivers, fleets and insurers.
Corclaim refers to the process as ‘inflating claims’. Highways England and their contractors engage Corclaim who utilise the decision. It appears the moral dilemma is not one that concerns your Public Authority whose role is to serve their public.
The article below appears to have been written from the perspective of Corclaim acting for fleet managers. On the one hand, Corclaim act for fleets using the ‘Coles’ argument. On the other, they engage the same decision when pursuing fleets and their insurers in your name for repairs to Crown Property such as barriers.
1. Please provide all information you possess about the consideration to utilise Corclaim and support their use of a process identified as ‘inflating claims for profit’ when pursing drivers, fleets and insurers following damage to Crown Property.
Additionally, I ask to be provided:
2. The due diligence process used pre- engagement of law firms by Highways England
3. The due diligence undertaken pre- engagement of Corclaim
4. The number of claims involving Court hearings following which Corclaim have remitted monies to Highways England for the past 3 years.
5. In what respect are Corclaim acting for Highways England when:
- You do not instruct them
- You do not pay them
6. How many highway claims are currently being progressed to Court and of these
7. For how many do Corclaim act?
Your contractors and Corclaim step into the shoes of the Public Authority yet appear to gain all of the benefits without the accountability (for example, they are not subject to FoIA)
What reviews or considerations have been undertaken about the conduct of Corclaim by Highways England:
8. Please provide all information.
The information will extend to:
9. All information resulting from the ‘effort’ put into reconciling past costs as referred to by Jim O’Sullivan in 2016, the processes, outcome and simplification that has resulted:
From: O’Sullivan, Jim
Sent: 21 November 2016 17:04
To: Philip Swift <email@example.com>
Subject: Your Ref: Kier Highways Ltd (‘Kier’) ref GC\026142 Our Ref: U02A567
Thanks for your note. I also want to ensure that drivers only pay appropriately for the damage they do to Crown property. I’m sure the current process could be simpler and I know Tim and Nick will be working to achieve this. We are certainly putting a lot of effort into reconciling the past costs that you are talking about.
The above appears at odds with the method of inflating claims described, engaged in your name by your lawyers.
27/11/2018 – from the ICO:
I have contacted the Highways England and asked it to respond to your request within 10 working days. If it fails to do this, a decision notice will be issued requiring it to respond to your request.
Dana Bourne, Lawyer, General Counsel Office
Highways England | The Cube | 199 Wharfside Street | Birmingham | B11RN
Note: 13/12/2018 – Tribunal Decision in a matter where HE & ICO cited ‘vexatious’ sees the exemption overturned. This matter saw Ms Sian Jones’ witness statement (above -11/12/2018) presented and the arguments within Dana Bourne’s letter considered. Highways England have used these arguments and a Tribunal has found them lacking and found against the Public Authority and the ICO.
Accordingly, the situation was drawn to the attention of Highways England in respect of this request:
14/12/2018 To Highways England
Subject: RE: Complaint to ICO – Phil Swift [Ref. FS50803075]
Dear Mrs Bourne,
I wish an Internal Review to be undertaken. I ask that careful consideration is given to the attached First Tier decision EA/2018/0088. I hope that my request is recognised by you as having a serious purpose, is made for legitimate reasons, and it would be improper for you to seek to rely upon classifying my request as being ‘vexatious’, or (for reasons set out below) to relate to ‘commercially sensitive’ information, which it does not.
To be of assistance to you, I make the following observations:
In light of the First Tier tribunal decision, the witness statement of Ms Sian Jones statement can no longer be relied upon as providing evidence of ‘harassment’ or giving rise to excessive or onerous conduct.
Ms Jones is the subject of a complaint having provided me with incorrect information. It is stated no higher than that.
The following chronology will hopefully clarify the factual position:
1. 21/06/2017, I met with Sarah Green of Highways England, conveyed my concerns and provided documentary evidence of excessive fees being charged by HE contractors, such as the use of multipliers to enhance an hourly rates on the basis these were paid to 8am to 5pm workers (AIWs) in Area 9.
2. Many of the claims were, at that time, subject to potential litigation via Corclaim.
3. 20/10/2017, I received an assurance from Mrs Green that these litigation matters would be put on hold.
4. By late 2017, it was evident that these litigation matters had NOT been put on hold. This prejudiced our own client’s position.
5. 18/01/2018, Mrs Green advised that she had given a clear instruction that these matters should be put on hold
6. 12/02/2018. Proceedings continued to be issued in the name of Highways England and I queried upon whose authority they were instructed. Mrs Green responded “No, they act for Kier, not for us”.
a. This appeared to be contradictory because proceedings were issued in the name of Highways England, and not Kier.
7. 28/02/2018. I Informed Mrs Green that Corclaim continued to issue proceedings contrary to her apparent instructions.
a. The reply was if they’ve issued, Mrs Green could not ‘pull them back’, but she could have a word with Corclaim i.e. “Don’t do any more,”.
b. I again raised the concern that Corclaim were not acting under Highways England’s scope of authority
c. Mrs Green informed me Corclaim worked for Highways England.
d. I expressed concern and surprise that no one had returned to me to correct the 12/02/218 statement.
It appeared the head of green claims, appointed to investigate allegations of systematic exaggeration, was either not taking my complaint seriously or incapable of managing the conduct of HE’s contractors, and their legal representatives.
Contrary to the statements of Tim Readon and Sian Jones, Mrs Green was informed on 28/09/2017 my calls were recorded.
This request is not a variation on any previous. It has serious purpose; the public interest of holding an authority to account on the gross exaggeration in damage to crown property claims pursued by their authorised contractors.
Should any aspect of my response need clarification or you wish to discuss the matter, please call me on the number below.
15/01/2019 – From: FOI Advice <FOIAdvice@highwaysengland.co.uk>
Subject: Internal Review 768,003 (ICO Ref: FS50803075)
Dear Mr Swift
Internal Review Reference: 768,003
Thank you for your email dated 14 December addressed to Dana Bourne. As your email requested an internal review it has been passed to me to provide a response.
I note from your email that you have requested an internal review of the response provided to you by Highways England’s General Counsel’s Team that your request of 10 September 2018 was treated as vexatious pursuant to section 14 of the Freedom of Information Act 2000.
I have reviewed the correspondence in this case and from the response it is clear that the section 14 exemption was applied as a result of what is believed to be the repeated and improper use of the formal procedure under the Freedom of Information Act 2000. The response referenced that since November 2013 you have made 57 requests to Highways England for information or internal review.
In addition, the Information Commissioner’s Office Decision Notice FS50715905 (****** on behalf of Claims Management & Adjusting Limited v Highways England) 22 November 2018 found that:
• You are the managing director of the company Mr ****** works for; Mr V****** was effectively making requests on your behalf and Mr ****** was working in collaboration with you. The Decision Notice also noted a previous finding that you had been acting in concert with Mr ****** (case FS50716692).
• The Commissioner found Highways England were not required to answer Mr ******’s request as it was vexatious and section 14 of the Freedom of Information Act 2000 had been correctly applied.
• The large number of requests submitted by you has placed a significant burden on Highways England causing a disproportionate level of disruption.
Having discussed this matter with colleagues I understand that as your request of 10 September 2018 was believed to be a variation on previous similar requests ie relates to the same subject matter it met the criteria within the section 14 exemption.
Given the explanation provided above I am satisfied the exemption within section 14 of the Freedom of Information Act 2000 has been applied appropriately in this case.
Sian Jones| Lead Information Rights Officer | Information & Technology
Highways England | Piccadilly Gate | Store Street | Manchester | M1 2WD
NOTE: Highways England’s vexatious approach dismissed by a Tribunal. The Authority appealed and this was dismissed, the Authority appealed to the Upper Tribunal and all grounds were dismissed, the Authority criticised for their conduct
15/01/2019 – To: ‘FOI Advice’ <FOIAdvice@highwaysengland.co.uk>
Subject: RE: Internal Review 768,003 (ICO Ref: FS50803075)
Dear Ms Jones,
I refer to your email of today in respect of my FoIA request (below).
You appear not to be aware of the recent First Tier Appeal Tribunal Decision which post-dates the s14 refusal cited by Mr Reardon’s team on 11 December 2018.
I would suggest that you reconsider your decision, to avoid further embarrassment before the Appeal Tribunal, in light of the adverse decision against your organisation.
To recap, on 13/12/2018 a Tribunal decision found against the identical 14 position you have now sought to rely upon. No appeal has been filed against the following findings, which are binding upon you:
‘We have the benefit of the witness statements provided in this appeal and refer in particular that of Sian Jones wherein at Paragraphs 11 – 15 she describes the dimensions and functions of HE, a UK wide Public Authority of major import. Together with the other evidence before us, we do not accept that they were faced with an unduly burdensome task in dealing with the Appellants requests’.
‘We do not think that his is a request that has no reasonable foundation. The information requested has value for Mr. Swift and objective public interest. We have balanced his request against the resource implications of the request and all the other relevant factors. Taking all this into account, and our reasons as set out in the preceding paragraphs, we conclude that the request is not vexatious.’
“We find that the (Public Authority’s) failure to recognise and process the requests was principally caused by inadequate or inaccurate responses by the personnel within Public Authority. We find this to be the cause of what came to be described as “Obsessive behaviour” on the part of the requestor, which in our view, in all the circumstances was not manifestly unreasonable.”
“We accept that the purpose of the request was to obtain information to support a proposed claim of misfeasance in public office and that there was an adequate and proper justification for the request.”
“On the evidence before us we accept that the request is serious and justified in that it related to suspected gross overcharging of Third Parties which was alleged to have been enabled and assisted by the Public Authority. If he was correct in his concerns the Requestor was attempting to identify Fraud.”
“On the facts it is clear that the Appellant set up his Company to assist others.”
“The requests are of clear value to Mr. Swift and we find that his motive in pursuing them in the circumstances was not obsessive or disproportionate as is clearly demonstrated in his comprehensive 82-page Response to the Commissioners Response.”
Furthermore, the request is original in that it deals with your engagement with Shakespeare Martineau and claims progressing to or before the Courts.
Given the unnecessary delays to date, and the simple issue I have now drawn to your attention, I would request that you respond to me within this week by close of business Friday, failing which it is highly likely that a further reference to the ICO will be made.
I should be grateful if you would acknowledge receipt of this letter.
No response was received.
31/01/2019 – reported as a complaint to the ICO
05/02/2019 – ICO Case Reference Number FS50803075
Your complaint has been accepted as eligible for further consideration and will be allocated to a case officer as soon as possible.
11/05/2019 From: firstname.lastname@example.org
Subject: Re: FOIA complaint about Highways England[Ref. FS50803075]
Your FOIA request to Highways England dated 10 September 2018
I write to inform you that your case has now been allocated to me to investigate. This letter will explain how I intend to do this. It will also provide you with contact details so that you can get in touch with me if you need to.
What happens now
Where possible the Information Commissioner prefers complaints to be resolved informally and we ask both parties to be open to compromise. With this in mind, I will write to the public authority and ask it to revisit your request. It may wish to reverse or amend its position. If it does, it will contact you again directly about this.
In any event, it must provide us with its full and final arguments in support of its position. Once I receive its arguments, I will consider its reply before either contacting you to discuss the matter further or preparing a decision notice. Further information is available on our website: https://ico.org.uk/media/report-a-concern/documents/1043094/how_we_deal_with_complaints_guidance_for_complainants.pdf
The request (as above)
- 10/09/2018 you requested information
- 11/09/2018 Highways England responded. It refused to comply with your request under section 14 FOIA as it considers it to be vexatious.
- 14/12/2018 You requested an internal review on 14 December 2018.
- 15/01/2019 Highways England sent you the outcome of its internal review. It upheld its original position.
My investigation will look at whether Highways England is correct when it says it is not obliged to comply with your request under section 14 FOIA.
The scope of the case
The focus of my investigation will be to determine whether Highways England handled your request in accordance with the FOIA. Specifically, I will look at whether it was entitled to refuse your request under section 14 FOIA. Please contact me within the next 10 working days, that is, by 28 May 2019 if there are matters other than these that you believe should be addressed. This will help avoid any unnecessary delay in investigating your complaint. If I do not hear from you by this date, my investigation will focus only upon the matters identified above.
13/05/2019 To: email@example.com
Subject: RE: FOIA complaint about Highways England[Ref. FS50803075]
This request should likely be read in conjunction with the *** allegation I have made in respect of the Authority and the repeated refusal by them to release DCP Rates (2013 to 2018) – damage to Crown property pricing. Similarly, I have copied this to the ICO regarding the allegation as the email I have cited evidences the Authority being very aware of precisely what I was seeking – DCP Rates.
The Authority’s post-Carny (11/2018) claim that there is no schedule of DCP Rates, is further undermined by Mr O’Sullivan’s statements:
I’m sure the current process could be simpler and I know Tim and Nick will be working to achieve this.
We are certainly putting a lot of effort into reconciling the past costs that you are talking about.
It is evident, in 2016, Highways England knew precisely what I was seeking; DCP cost related information. The Authority was aware that I ran CMA that specifically handled DCP claims.
To this date, no simpler process has been presented. Indeed, the Authority apparently investigated Area 9 finding no issues and writing to them 09/2018. Yet, post-Carney and the ‘we have no schedule of DCP Rates’ claim, they are looking to amend the process and state Area 9 has not issued an invoice in 2019.
It appears the 2016 ‘effort’ failed to identify non-compliance with the contract by Kier. Furthermore, this ‘effort’ did not result in a discovery there was no schedule of defined costs. Of course, this would not have been identified and raised if, as I believe, there is a schedule.
How did a ‘reconciliation’ occur in the absence of a schedule of DCP rates and why was this seemingly discovered 12/2018?
A detailed history of event, particularly in Area 9, can be found here: http://www.englandhighways.co.uk/area-9-time-line/. However, relevant extracts are as follows:
• 2013. Kier (then EM Highways ) were charging £125 for emergency incident attendance (2 operatives and a vehicle)
• 2014 (early) this increased to £1500
• 07/2014 the charge was now £2700 + £2000 admin. This resulted from the contract non-complaint 1153 process that saw gross exaggeration on an industrial scale likely netting £10million+
• 10/2015 we cause 1153 to be abandoned
• 03/2016 Kier Highways employed lawyers Corclaim to handle claims, to progress exaggerated demands.
During the same period Highway England saw inflationary increases
I believe a reconciliation process would have identified the substantial overstatement and that Kier were not adopting the ‘defined cost’ (DCP Rates) + third party claims overhead (%) process (‘Appendix A’.
Of note is that when Mr O’Sullivan wrote (21/11/2016) the contractually agreed pricing process ‘Appendix A’, was a secret.
• 01/2017 Appendix A ‘surfaced’, was discovered
• 21/06/2017 I met Highways England
• 2018 Highways england stated that they employed Corclaim.
The online information from Corclaim (link provided) suggests the lawyers were prepared to adopt an argument that resulted in overstatement. This did not sit comfortably with Highways England seemingly looking to address exaggeration and working for the people; the public of third parties the subject of excessive claims.
There was no indication of any reconciliation in 2016
The ICO has more recently seemingly provided the Authority with an excuse for not providing the DCP Rates that I have sought, for failing to release DCP rates when presented 175 requests / reviews; they may have been confused.
There was no confusion http://www.englandhighways.co.uk/no-confusion-dcp-rates-sought-for-years/. I will add to this evidence, for example the above link also includes the Authority’s comment about ‘constant stream of emails on this subject’ and that we had issues with the calculation of charges.
There also appeared to be confusion within the Authority about who had instructed Corclaim. Initially , I was informed Corclaim worked for Kier,
12/02/2018, Sarah Green the head of Green Claims @ Highways England, advised me with regard to Corclaim ‘they act for Kier, not for us’. Yet the person in charge of the claims department erred, advising 28/02/2018 ‘I was wrong. I’ve had legal check it out’. Yet, the Authority was seemingly powerless to instruct their own lawyers to place matters on hold as evidenced here http://www.englandhighways.co.uk/have-highways-england-lost-control/
Once again, I am concerned about the accuracy of information emanating from Highways England and their conduct hence my request for due diligence information; what resulted in the coincidence of Highways England appointing Corclaim and has this followed the appropriate process?
26/07/2019 from the ICO Case Reference Number FS50803075
Thank you for your email asking for an update in relation to this matter.
I have received Highways England’s submissions on this matter regarding its application of section 14 FOIA. Highways England has said that:
“Mr Swift appealed the earlier application of section 14 (a decision upheld by the ICO in decision notice FS50703446) to the Information Tribunal under appeal no EA/2018/0088. That appeal was subsequently upheld by the Tribunal, however this matter is still in dispute and Highways England has appealed the Tribunal decision and will therefore be maintaining this view pending the outcome of that appeal.”
Highways England’s application for permission to appeal is yet to be determined. Based upon Highways England’s submission, it may be best to wait to see if it is granted permission to appeal to the Upper Tribunal before proceeding with my investigation into this complaint.
I will however be in touch in due course to confirm how the matter will proceed.
27/07/2019 To: firstname.lastname@example.org
I have reviewed and reconsidered your recent email in respect of this matter.
FS50803075 relates to a request I made that has received a ‘vexatious’ exemption from Highways England. Requests before and after have been addressed.
A Tribunal has found me ‘not vexatious’ in respect of the matter cited by the Authority
I understood each matter was treated on its individual merits.
Please therefore can you explain why this matter is being tied up with another, one with an over-ridden negative outcome as opposed to HE electing to provide information pre and post FS50803075. That there is a selective ‘vexatious’ stance speaks volumes.
Effectively you are telling me that an authority need only cite vexatious once and irrespective of prolonging the matter by appeals, a requestor is prejudiced, tainted adversely. I am being ‘convicted’ by you whilst exonerated by another, higher Authority.
Even if permission to appeal were granted, the matter may take months to be finalised and I remain prejudiced. Even if I were found against, this should not prejudice my FoIA made well over a year later.
Then there is the subject matter of the issue before the Tribunal, the ICO / HE claiming I was vexatious due to the number of requests I have made – the request before the Tribunal is for Defined Costs! The ICO has again sided with HE and finds there is no such thing … therefore the subject of the Tribunal, in which a former ICO employee complains about 175 requests / reviews (57 mine), the matter giving rise to me being labelled vexatious results from the vexatious conduct of the authority. HE want their cake and to eat it; I am said to vexatious for pursuing something and when I can have it (the ‘commercial sensitivity’ exemption falls away) I am told it does not exist. Was not the time to tell me that 56 requests / reviews earlier? Who is the vexatious party?
Please confirm that my complaint will be progressed and provide me with a copy of the Authority’s full response.
My thanks in anticipation,
29/07/2019 to the ICO:
To add to my previous, you may wish to ask Highways England what requests I have made in the past year and the stance they have taken – their use of ‘vexatious’ is selective, concerning.
The activity currently is substantial in that the Authority is putting in place a new process. Sadly their assurances of keeping me in the loop have not been adhered to – I am however, restricting my requests at a time when information about the latest methodology is important.
14/08/2019 from the ICO:
Your case remains under investigation however I had suggested waiting for the outcome of Highways England’s permission to appeal to the Upper Tribunal as whilst each request must be considered on its own merits, context and history is relevant to the application of s.14. The previous FOI requests are therefore relevant to our investigation in relation to this case.
19/11/2019 from the ICO:
Thank you for your correspondence. I am unable to provide you with any further update at this stage other than that which was communicated to you on 12 November 2019. I will continue to chase Highways England and hope to be in a position to update you further soon.
19/11/2019 to the ICO:
Thank you for your email. I had anticipated the Authority responding promptly to your chase of 12/11/2019, a week ago; you were simply asking when they are likely to be in a position to respond. Providing an anticipated date I did not expect to be taxing, particularly not given that, 23/10/2019, they were considering legal arguments but would respond.
This is a matter that the ICO delayed due to the ‘vexatious’ finding of HE supported by the ICO. Despite a Tribunal dismissing ‘vexatious’ in 2018, the ICO appear unwilling to accept their considered finding. On the one hand, the ICO informs me they do not read / consider my correspondence, that it is for a Tribunal, on the other, when a Tribunal finds for me, this is insufficient. Instead, you have delayed the matter until appeal and Upper Tribunal appeal occurred. The latter concluded over 6 weeks ago. I remind you the Authority’s appeal failed on every ground and they were criticised. I remain concerned my position is being prejudiced by the ICO’s pro-Authority bias and unwilling to consider my submissions subjectively.
I trust you will consider this matter on its own merits, context and history these being relevant to the application of s.14:
• The Authority has selectively applied this; why? What is there about this request that they see fit to cite s14 yet respond to other matters?
• The Authority’s conduct has ben criticised, by more than one Judge
• The criticism raised has been made despite the Tribunal being unaware the subject of the 07/2017 vexatious matter, was for DCP Rates i.e. for rates post 11/2018, the Authority now claims do not exist. That is to say, the Authority engaged the ICO, GLD, Counsel, Tribunal for what … a pyrrhic victory? Or is it possible, on the balance of probabilities, the Authority was aware that DCP Rates existed between 07/2017 and 11/2018 and did their utmost to protect them citing ‘commercially sensitive’ or ‘vexatious’ but upon these falling away late 2018, were forced to adopt another stance to keep the price list secret … ‘not held’?
The response to previous FOI requests should be relevant to your investigation in relation to this case. The Authority is the vexatious, misleading party. Disappointingly, it appears this suits the ICO, that ‘computer says no’ is applied to avoid complex matters that you do not have the resources to address or worse still, the spectre of a s77 prosecution you do not believe is provable – in the absence of a confession.
Following from Corclaims website:
Coles v Hetherton – Subrogation ruling creates a moral dilemma for fleet operators
The practice of inflating costs to make a profit when pursuing claims arising from non-fault accidents has been given the green light by the Court of Appeal and some fleet operators may choose to follow their example.
The Court of Appeal has now concluded that cases brought against Royal Sun Alliance Insurance (RSAI) over how it recovers repair costs following non-fault accidents are groundless. As a result, the practice used by RSAI, which has allowed them to inflate the cost of vehicle repairs and pass on the bill to the at-fault driver’s insurer, has been judged both reasonable and legitimate. In handing down his decision, The Honourable Mr Justice Cooke ruled that RSA’s practices were legal and that any appeal against his judgment was likely to fail.
This ruling has upheld an earlier ruling, by the Commercial Court in June 2012, when the court determined that as long as the vehicle repair costs being recovered by the non-fault insurer were ‘reasonable’ they did not necessarily have to represent the actual costs incurred. In reaching his decision, he also pointed out that the loss is sustained at the point the damage is done, not at the point that the repairs are carried out.
In practice this means that RSAI can continue removing any discounts earned on labour or repair costs, and applying an administrative charge to the overall bill, before passing it on to the at-fault driver’s insurer. It also means that other insurers and larger fleet operators, who regularly carry out non-fault vehicle repairs, can choose to do likewise if they wish.
So where does that leave us? Well of course views will differ. In mine there is likely to be a moral dilemma for some, but the position of the Court of Appeal in this matter is crystal clear. It is perfectly legitimate for those incurring losses associated with non-fault vehicle repairs to add on the value of any discounts they may have negotiated with garages and to apply an administrative charge too. The application of such costs has been found to be perfectly reasonable.
All of a sudden recovering such [inflated] losses has become palatable. While the priority for fleet managers will obviously be getting vehicles back on the road as quickly as possible, the losses incurred as a result of non-fault accidents now represents a commercial opportunity, which they can take advantage of if they wish.
There is a moral issue here too as clearly adding costs into the recovery process could cause insurance costs to escalate and eventually all users of commercial vehicle insurance would end up paying for this through higher premiums.
However, others will take the view that while the commercial opportunity exists they would be foolish not to take advantage of it.
Corclaim is a business name of Shakespeare Martineau LLP, a limited liability partnership registered in England and Wales with number OC319029 and authorised and regulated by the Solicitors Regulation Authority with number 442480. A list of members is available for inspection at the registered office; No 1 Colmore Square, Birmingham, B4 6AA. Any reference to a ‘partner’ in relation to Corclaim or Shakespeare Martineau LLP means a member of the LLP or an employee or consultant with equivalent standing and qualifications. Service of documents by fax or email is not accepted.