The Court has left Highways England and their lawyers in no doubt that their ‘amateur state of affairs’, lack of documentation and unsubstantiated costs is unsatisfactory. But we doubt either Highways England or their lawyers Shakespeare Martineau (‘profiting from claims‘) – or are they Kier Highways’ lawyers – will be humble in defeat. Indeed, it remains to be seen whether they will comply with the finding of the action they initiated – the Authority’s contractors have a history of presenting components of a Judgement that suit them.
The approach taken by the Authority and their lawyers was obviously inappropriate for example, seeking to rely upon a deed of variation when there was no area 6/8 contract to vary, reinforces the slapdash approach
Contractual rates will now be sought to ensure and area to area differences are taken into consideration, We would not wish to be seen as unreasonable. Armed with the rates, the ‘actual costs’ HE states they will utilise, charge arguments should fall away … though this may not suit the Authority’s lawyers … particularly given they are apparently to recovery 90% of invoice value and the Judge has put pay to the likelihood of this!
We suspect insurers will continue to be subjected to the Authority’s punitive approach; the instruction of lawyers to add costs and a demand for interest that will increase because of Highways England’s tardy approach to claims and a backlog of some 2,500. Delays appear inevitable with insurers being expected to pay for the authority’s inability to claims-handle.
It is pleasing to have the ‘Coles’ stance reinforced; ‘reasonable’ sums should be pursued, not the contractors ‘make them up as you go along’ rates.
Ideally, the Authority should now revisit every claim and do no more than we have been asking since the section of the contract they sought to keep secret* surfaced in early 2017; calculate the invoice by reference to:
- ‘Defined cost’ plus
- The Party Claims Overhead
It appears this agreed process, to charge insures ‘no more than’ the above was unpalatable to Kier Highways who acted contrary to the agreement from day-one (Area 9 – 01/07/2014) and were not kept in tow by the Authority who appear to have permitted the abuse. Time to revisit the 2017/18 ‘investigation’ by KPMG designed to review this very exploitation?
The KPMG report has been withheld, amid continued unwarranted hostility to CMA, the Authority seemingly keen to shoot the messenger rather than put their own house in order. But possibly they are unable to do so; it appears they are so beholden to contractors as to be ineffective, a concerning situation for an Authority overseeing the strategic road network.
*this conduct alone warrants investigation. Clearly, Kier Highways does not like the section (Appendix A) tey signed up to; they never complied with it and somehow during 2020, they managed to get the Authority to change it to suit them … albeit a rather half-baked approach that has, to an extent been undone.
It appears Highways England have forsaken the public they serve in favour of enabling the contractor to profit handsomely – read more here