06/10/2020 to Information Commissioner’s Office
Thank you for your email of 01/10/2020 – 011020 Letter from ICO to Mr Swift.
These requests relate to my 10/09/2018 approach about:
- Highways England’s use of lawyers Corclaim (Shakespeare Martineau solicitors)
- The statement of Jim O’Sullivan, the Authority’s CEO.
With regard to each:
1. THE USE OF CORCLAIM
Corclaim was known to me as they had been appointed by Kier Highways Ltd to pursue damage to Crown property (DCP) claims. This request commenced in late 2018, by which time the Authority had stated Corclaim were being instructed by Kier Highways, subsequently correcting this and stating the lawyers were working for them. This appeared odd as:
- The lawyers were not returning HE’s calls
- This obstruction led to an investigation of Kier
- I was informed, in an email, that the lawyers had been told to place all matters on hold but had not done so
- HE could not explain why their own lawyers were not doing as instructed
I had also read the ‘profiting from claims’ post by Corclaim and that a Public Authority would engage in such conduct appeared inappropriate. The post has since been removed.
I could find no reference to Corclaim being appointed following due diligence or tender. There appeared to be a potential conflict; Kier and their employer (HE) were engaging the same lawyers for the same type of work.
I had written to the lawyers asking that they price claims in accordance with the contract and raised the issue of ‘multipliers’ on operatives hourly rates being wrong (they are fraudulent). Neither were attended to.
Since that date, in 2020, Highways England has:
- Altered contracts with Kier Highways in an attempt to enable them to pursue claims for more than the original contract permitted
- Appointed Corclaim to a £3million contract
Again, there appears to be a conflict in the appointment. I suspect, as with other matters, the Authority is so compromised as to be ineffective, that it is the tail that wags the dog; that Kier Highways dictate processes to Highways England.
2. THE STATEMENT OF JIM O’SULLIVAN (HE’s CEO)
21/11/2016 Jim O’Sullivan wrote
‘I also want to ensure that drivers only pay appropriately for the damage they do to Crown property. I’m sure the current process could be simpler and I know [named individual] and [named individual] will be working to achieve this. We are certainly putting a lot of effort into reconciling the past costs that you are talking about.
The above appears to be at odds with the method of inflating claims described, engaged by HE’s lawyers. Furthermore, unbeknown to me at that time and when I submitted this FoIA request, the Authority, whilst stating on multiple occasions they held a schedule of DCP rates, u-turned; as of 12/2018 (when their commercial interest and vexatious exemptions fell away) Highways England stated ‘not held’. Apparently, no ASC (contract since 2012) had included a schedule of charges to the Authority for DCP works!
Yet all Tim and Nick’s work, their ‘lot of effort’ had failed to identify the absence of agreed costs, of a price list! This 2016 effort failed to identify that there was not a single schedule of costs associated with any ASC!
Additionally, the processes engaged by contractors, the rates utilised, did not change and no reconciliation was ever disclosed or became apparent. Could it really be that all this effort related to costs and charging failed to:
- identify contract non-compliance, exaggeration and fraud?
- note the absence of a price list in any ASC – that HE had no agreed rates with heir contractors?
How did ‘all this effort’ not result in the discovery that the basis of my concerns and complaints, the charge rates being used, were not held unless … there are schedules of costs?
More recently, the existence of a DCP price schedule has been confirmed by the Authority, by Tim. I, therefore, wish to understand what effort was involved, what was discovered/uncovered as a result of all this effort such that a cornerstone of a contract (rates) was (apparently) overlooked.
VEXATIOUS & COST
There is nothing vexatious about this request as was identified and overridden. The ‘vexatious’ exemption is a standard HE tactic to delay, obstruct and avoid disclosure. This having failed, the Authority has taken a second bite at the cherry:
S12 (costs) was applied but appears ludicrous. With regard to ‘1’, I am seeking a process that should be readily available if only to justify an appointment to others. There should exist a procedure to be followed as standard and retained – if only to be able to defend an allegation of, for example, ‘inappropriate influence’ and to demonstrate compliance with policies*. It does not appear there is an ‘open hands policy’ at the Authority.
I wish to understand why Corclaim (Kier’s lawyers) had ‘coincidentally’ been appointed above any other.
With regard to ‘2’, once again, the request is so specific as to make the location of information and disclosure straightforward. There are only 3 parties involved:
- Jim O’Sullivan
- TIM (Reardon?)
- Nick (Harris?)
A lot of effort was being expended and Jim was aware of this. What was uncovered, collated, considered and reported on? I am seeking the work undertaken and the outcome.