Sometimes, it is not what you do say … but what you do not.
11/2016. Jim O’Sullivan’s (Highways England CEO) emailed that the issue of costs was the subject of ‘a lot of effort‘
09/2018. When we sought to ascertain the extent of this effort and understand the involvement / activities of the seemingly uncontrollable Shakespeare Martineau solicitors, the Public Authority appear to have ‘taken the 5th’ on this. Whatever effort was being put into ‘reconciling past costs’ by Tim (Reardon – General Counsel) and Nick, seemingly it was insufficient to understand or discover that none of the ASC’s (contracts) had a schedule of defined costs or DCP (Damage to Crown Property) rates i.e. no means by which anyone could reconcile / audit presented invoices!
The request has been refused – a ‘vexatious’ exemption from Dana Bourne of Highway England’s General Counsel’s Team.
04/2019. A FoIA (Freedom of Information Act) request relating to the pain / gain arrangement between Highways England and their contractor has received a basic response, seemingly because Highway England believe they can avoid as the request is said to be based upon an ‘incorrect premise’. Having reported that Kier are presenting false information about claim costs to Highway England we are seeking to understand the implications of this. But we are receiving replies, albeit unhelpful ones to date.
06/2018. A request ‘Area 9 ASC Appendix A to Annex 23‘ seeking information about the use of Appendix A to Annex 23, 1153 and the replacement pricing process was initially met with a ‘vexatious’ (FoIA exemption) rebuff. However, 05/2019, upon contact by the ICO, Dana Bourne of Highway England’s General Counsel’s Team has reconsidered. But, almost a year after receiving the request we are subject of a response that seeks clarification which could have been requested a year ago. The response also suggests an obtuse, obstructive approach with the Authority apparently ignorant of:
- 1153 – the subject of an audit undertaken for the Authority’s General Counsel, Tim Reardon. The audit reports ‘Emphasis has been placed upon the use of 1153 incidents as a basis for allocation of annualised costs.’
- Kier’s Insurers Guide to Incident Management v1 a document first provided to us by the Authority’s General Counsel Tim.
It appears the team are a shambles or possibly the conduct simply prevarication? The request and response can also be found here. But we are receiving replies.
12/2018. A request for Area 9 & 10 DCP Rates. The request was answered; the information is ‘not held’ because it does not exist. Really? There is substantial evidence the rates exist with further comment below
But what faith can be placed in anything emanating from the Public Authority? Highways England claim to have received 175 rate-related FoIA requests for information between 2013 and 2018. This statistic appears in a Statement of Truth presented to a Tribunal 07/2018 – 118 of these requests were from others. 5 years of considering requests, reviews, ICO etc involvement all to keep the information secret as it was deemed ‘commercially sensitive’. Then .. 11/2018, Patrick Carney of Highways England advised a Tribunal:
the rates are NOT commercially sensitive
Possibly, just as Highways England have overlooked their knowledge of ‘1153’ and Kiers’ Insurers Guide’, they have forgotten that their General Counsel had previously conveyed some rates to us in early 2016? Or maybe they wish to forget this also … the figures were false!
5 years of keeping the public from the very rates they were charged and now a claim there is no schedule – in any Area. There is plenty of evidence for the existence of such rates, of a schedule, so why are Highways England keen to keep this from us … just how many £millions have Third Parties been overcharged, who is profiting, what does Highways England really know of this and do they benefit from the conduct?
Who is telling the truth about the existence of rates?:
- Highways England who claim they now hold nothing yet have been reviewing the information for years, a fact not lost on the ICO (04/2019) in respect of an ongoing Tribunal matter:
- 19 b. ‘If indeed the Appellant’s request sought DCP rates* as opposed to ASC contract definitions it would appear that HE’s response that such information does not exist is incorrect, as in a previous DN, it was ruled that DCP rates do in fact exist but they are commercially sensitive’
- Or could the Authority’s own contractor witness, giving evidence to a Judge (HHJ Nigel Graham Godsmark QC), be honestly conveying information to the Court, as evidenced by the Summary Judgement extracts from which appear in respect of an FoIA request,such as:
- 15. BBMM do have agreed rates with Highways England for repairs where the total is over £10,000.
*The appellant did indeed seek DCP Rates (or ‘defined costs’) 25/10/2017:
“…please can you provide the schedule of defined costs for the Area – the schedule used to build up the invoice. These are the DEFINED COSTS or BASE RATES Kier agreed with your client to compile an invoice. I believe these will (or should) be in GLD’s (Government Legal department’s) possession to enable the charges raised to be confirmed pre-settlement and to enable meaningful, justifiable recovery. This is particularly important in light of the issues with Kier Highways invoicing.”
To make your own request of Highways England, the WDTK know site is simple, requires a brief registration and ensures requests and replies are in the public domain. The site also provides a facility to search previous or current requests: