Could the destruction of documents which are relevant to legal proceedings amount to contempt of Court*?
Highways England have, for years, refused to provide schedules of Damage to Crown Property (DCP) rates initially claiming they were ‘held but commercially sensitive’. Pressed for disclosure, they cited ‘vexatious’.
In late 2018, these protections fell away. We expected the information to be released. But … Highways England could not find the rates … after many, many requests and reviews, they changed their tune … the information being protected did not exist! The Authority discovered it had failed to agree to a price list** for repairs in ASC‘s (contracts) from 2012. Really?
There are many arguments supporting the existence of a price list. However, CMA recently received further evidence contradicting the absence of a schedule … Kier Highways utilise an Excel spreadsheet named Area_3_equipment_Defined_Cost_latest_15.xls this is a reference document for rates, a ‘schedule of rates’. We wrote to the Authority in the hope of drawing a line under the issue and securing the schedules enabling us to re-price claims. The response was surprising:
Kier Highways Ltd have confirmed that the schedule you have referred to (Area_3_equipment_Defined_Cost_latest_15.xls) is outdated. They no longer have a record of it and it is not now used by anyone within the business. Similarly, this document has never been held or used by Highways England.
We have been informed by Kier that the schedule would have contained a list of equipment rates from 2015.
Kier appears to have deleted documents relevant to the cases currently before Courts, in respect of which proceedings have been initiated or are as yet unresolved.
We returned to our ‘source’ and understand the above-mentioned schedule is only one such document. A more pertinent one is likely ‘Area 9 DCP 35010 costs.xlsx’. 01/05/2020, we sought an explanation of the response, the conduct and the rates.
Surely Kier has not disposed of the evidence – particularly information that likely has a bearing on multiple matters currently stayed at S. Wales courts and may have formed part of a disclosure order?
*04/11/2019 @ 09:32, Highways England’s lawyers wrote in respect of vehicles involved in collisions:
Your client should simply give mine the opportunity to inspect a vehicle following an incident by telling us where it has recovered the vehicle to and when it intends to dispose of it. We can usually decide whether we want to inspect, and do so, within 5 working days, because we would not want to prejudice your client in any way by incurring it with storage charges or unreasonable delay.
But of course, the vehicle is evidence and to dispose of it without giving my client the opportunity to inspect by naming its location and when it may be inspected may well amount to destruction of evidence and contempt of Court.
Why would the situation not extend to the destruction of pricing schedules … information the Authority has denied even existed!
** As for schedules of rates, the Authority has written:
We do not hold this information. The term ‘Defined Cost’ refers to the definition in the contract as previously provided. The contract does not contain a schedule of Defined Costs. The Defined Cost for each incident is calculated in accordance with the definition.
No it is not. The Authority has more recently written:
Kier Highways Ltd have confirmed that the schedule you have referred to (Area_3_equipment_Defined_Cost_latest_15.xls) is outdated.
The calculation had been undertaken, presumably in accordance with the definition, resulting in a schedule of cost.
Registered users can read more here:
27/04/2020 approach to Highway England
01/05/2020 FoIA Request