Drivers, Fleet, Hauliers or their Insurers to Pay 3 Times More for Repairs

Highways England appoints single law firm to £3m contract to clear backlog‘ of 2,500 network claims and to address its £1 in every £5 (20%) recovery record.  In 2019, the Authority wrote:

Third-party claims on England’s motorways and Major “A” roads amount to about £60m per year. Presently, around 50% of the value is managed by Highways England and 50% by Service Providers. Highways England currently recovers only around 20% of the total value. In addition, non-processed claims from previous fiscal years, amounts to around £42m.  Source Highways England

But now, drivers, hauliers, fleet operators and their insurers (Third Parties) can expect to part with 3 times more than previously as the lawyers aim to recover 90% (tender info’ below). 

The firm appointed by the Authority are Shakespeare Martineau (Corclaim) an odd choice given the problems encountered with the 2017 Kier audit, and that whilst said to be instructed by the Authority in 2017, were not doing as they were told by Highways England.

Corclaim is the law firm utilized by Kier Highways for whom the Authority recently altered contracts to assist the pursuit of higher charges for Third-Party claims.   Kier had never complied with the scope of authority set down in the contract with Highways England but unable or unwilling to have Kier play by the rules, the Authority has now changed the rules in favour of Kier. 

The contract was simple … the same Base Rate for the Authority and a Third Party to which was to be added an uplift percentage.  This fits reasonably well with HHJ Godsmark’s Judgement which the Authority cites whilst ignoring the statement

‘It would be odd if a tortfeasor was liable to Highways England for diminution in value of a damaged chattel in one sum if sued by Highways England itself and in a different sum if sued by Highways England via BBMM (a contractor).

We suspect Kier will abide by the latest contract variation which it appears will only see Third Parties being charged more, not the Authority itself.  

Shakespeare Martineau commonly cite ‘Coles’ when pursuing recoveries but accept this presents a ‘moral issue’.  It appears Highways England has taken the view that ‘while the commercial opportunity exists they would be foolish not to take advantage of it‘ and profit from claims – an odd approach for a Public Authority that is to ‘serve the public’.

Shakespeare Martineau has removed their post on ‘Coles’.  Possibly their position, whilst legally arguable, is morally bankrupt and embarrassing for the Authority?   Their original post can be read here

As for the conduct of Kier Highways, Highways England and Shakespeare Martineau, read more here.

We have previously attempted to better understand the relationship between the Authority and these lawyers, long before this recent appointment seeking information by use of the Freedom of information Act (FoIA).  The request was obstructed by the Authority but their vexatious defence was (again) dismissed and (again) they resorted to not holding information about the appointment.  The FoIA request can be read here, the matter being with the ICO.

Tender info:

Highways England is looking to let a contract for advocacy and litigation services, this will cover the support and litigation of network claims (Green Claims) where Highways England will be the legal claimant.

The work will include taking claims through litigation on our behalf, providing advice and support on the more complex and high value claims, assisting with clearing our backlog of in excess of 2 500 claims and supporting claims where liability may be in question.

This may also include supporting new ways of pricing claims other than actuals but ensuring that it remains reasonable.

Highways England are looking to appoint one (1) supplier, the contract will be let for a period of 2 years with an option to extend for 12 months.

Total Quantity or Scope
The contract will run from May 2020 for a period of 2 years with an option to extend for 12 months.

The aim of the contract will be to ensure that the backlog for all Highways England claims has been cleared and that Highways England are able to recover claims in respect of damage to our strategic road network in a timely manner.

With the aim of recovering in excess of 90 % of the value of those claims.

*To put “lipstick on a pig” means making superficial or cosmetic changes to a product in a futile effort to disguise its fundamental failings.


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