Have Highways England Lost Control?
Highways England are unable to stop lawyers acting for them issuing proceedings in the name of Highways England.
Following their General Counsel’s confusion about whether Kier Highways Ltd could issue proceedings in their own name, Highways England issued an authority to Shakespeare Martineau solicitors (Kier Highways’ lawyers):
23/11/2016 – the authority can be read here.
However, it became evident Kier Highways were providing contradictory information about their charging process and the rates. Furthermore, that we were being kept from information about the process. Whilst Highways England had failed to identify the issues following our initial concerns raised in 10/2015, ultimately they met with us.
21/06/2017 we met with the Head of Claims, Recovery and Dart Charge Service at Highways England who advised a further audit of Kier Highways would occur.
14/09/2017 @ 16:02 From: Head of Claims, Recovery and Dart Charge Service, Highways England | West Midlands RCC | 1 Ridgeway, Quinton Bus.
‘I can confirm that all CMA cases have been put on hold.
We won’t share the terms of reference with you but Grant Thornton will talk you through these when they meet with you’.
But they were not on hold, Kier Highways lawyers, Corclaim / Shakespeare Martineau continued to issue proceedings. So we returned to Highways England:
20/10/2017 @ 14:39:
‘Further to the email below, I am still being advised by clients that matters are NOT on hold – proceedings are being issued and those where they have been issued, are progressing to Court.
Could you advise who at Kier and Corclaim have been informed and if known, explain why they are not to be adhering to your instruction … or confirm the direction has been reinforced?
I’m going to sound like a stuck record but proceedings are being issued in the name of Highways England, you are the claimant …’
The response was as follows:
20/10/2017 @ 16:01:
‘Any claims that are being processed and where costs would be incurred by Highways England to put them on hold will proceed.
All new claims or claims where proceedings haven’t been issued are on hold. Kind Regards’
Head of Claims, Recovery and Dart Charge
Highways England | West Midlands RCC | 1 Ridgeway, Quinton Bus. Park | Birmingham | B32 1AF
13/11/2017 – Proceedings continued to be issued and Corclaim advised we were mistaken and they do not have instructions to put matters on hold. They will be issuing them as and when.
13/11/2017 @ 11:25 we emailed the Head of Claims, Recovery and Dart Charge:
I suspect you are as frustrated as me about this email ‘tennis’ … but I am the ‘net’ … between the parties, having no control. Are Corclaim / Shakespeare Martineau aware that s of 20/10/2017 (as below):
All new claims or claims where proceedings haven’t been issued are on hold?
To date (03/04/2018) no response to the email. But we have discussed the issue:
CMA to HE: “With regard to the matters on hold, I’ve had two in the past couple of weeks.“
HE: “I know, I’ve seen them come through.”
CMA: “I don’t know what to do.”
HE: “No, I don’t either, if I’m brutally honest with you. So, I have given a clear instruction but… I don’t know what to say. I just need to get the report next week and then do what I need to do.”
CMA: “How about Shakespeare [Martineau 0:08:23]? I mean are they, do they (act) on behalf of Highways England? ”
HE: Err, no.
CMA: Okay. My next question was going to be, “’Cause if they do, somebody for goodness sake tell them to talk to us.”
HE: “No, they don’t.“
CMA: Because this is …
HE: “Yes, ‘cause that’s Corclaim is their other name, isn’t it?”
HE: “Yeah. No, they’re, they all, they only, they act for Kier, not for us.”
28/02/2018: We returned to the Head of Claims, Recovery and Dart Charge about the issuance of proceedings:
CMA to HE: “we’re told, and I’ve told my client that all matters are on hold, but they’ve issued. Why? I’ve got the email from you, all on hold, 20th October. We weren’t instructed until November, we didn’t write until 27th November, and proceedings have now been issued. “
HE reply: “Right, okay. Well if they’ve issued, I can’t do any … I can have a word with him to say, “Don’t do any more,” but they are, if they’ve issued I can’t pull that, get them to pull that back now.”
CMA: “No, but they’re not doing as they’re told”
HE:” I’m fully aware of that, Mr Swift.”
HE: “If you can give me an answer, then I’d be… I don’t know“
Highways England also corrected an earlier error when advising us that Corclaim were NOT acting for them.
HE “I was wrong. I’ve had legal check it out” … ” .. they are acting“.
It transpires Corclaim are acting for Highways England but are apparently not doing as instructed by Highways England – that the Public Authority has no control over lawyers acting for them, issuing proceedings in the name of Highways England.
However, Highways England have not paid CorClaim / Shakespeare Martineau for their services. An FoIA request from 01/2018 on the WhatDoTheyKnow website to Highways England about ‘Legal Representation’ revealed the lawyers had not received monies form the Public Authority who explained:
18/04/2018: ‘ … no payments were made to Shakespeare Martineau LLP, either during the calendar year 2017 or the financial year 2018/17.
Some of the cost recovery action for damage to the network is undertaken on our behalf by service providers. These may, in turn subcontract recovery action to legal firms. Where this happens the firms will have authority to act on our behalf, however they are paid by the service provider rather than Highways England directly. This would seem to be the case regarding Shakespeare Martineau LLP in this instance.’
We have annotated the repose:
http://www.englandhighways.co.uk/authori… the ‘authority to act’ document, from Highways England’s General Counsel, clearly states Shakespeare Martineau account to Highways England on a regular basis. Account what? They are not paid by Highways England and the response you have received suggests the service provider or contractor (likely Kier Highways) instructs the lawyers and are paid for by the provider.
In such circumstances, it appears any payments resulting from the action are paid to the provider i.e. that Highways England receive nothing. What is there to account and why does this occur on a regular basis?
Corclaim a.k.a. Shakespeare Martineau act for contractor Kier Highways Ltd. from the outset, before Highways England are approached to provide an authority to issue proceedings. Why would the law firm account to Highways England as opposed to Kier Highways?
There is another aspect to this you may wish to consider:
If Highways England give firms such as Shakespeare Martineau an authority to act on their behalf, why can they not rescind this? Highways England state they have tried to do so by Shakespeare Martineau appear to have ignored the instruction.
Are you being misled or bamboozled?