201007 Request for Information Arising from Cardiff Court Judgement

07/10/2020 to Tim Reardon @ highwaysengland.co.uk & Jim O’Sullivan @ 

Request for Information Regarding Stayed Cardiff Court Claims

Dear Mr Reardon,

Following hearings on 19th, 20th May 2020 and 16th July 2020, 21st August 2020,

Please confirm whether the following will be addressed in the usual course of business or if the request for information will be treated as an FoIA request. You will be aware that we have about 20 Cardiff claims stayed in respect of which Highways England is the claimant and Kier your contractor.

With regard to the above judgement, your own quantity surveyor coming to a conclusion that the sums claimed were too high and the Judge remarking that ‘simply allowing claimants to set their own market for cases of this sort might be regarded as undesirable’, please would you provide me with the following information, referenced in the judgement:

1. The names/definitions for the various rates that exist or existed in respect of ASC’s.

Para. 6(iv): ‘For repairs valued in excess of £10,000 Highways England are charged by Kier using contractually agreed rates’:

2. These ‘contractually agreed rates for repairs over £10,000

Para.7 regarding ‘claims worth less than £10,000’; they (Kier / Highways England) have valued the diminution by reference to rates other than those agreed between themselves and Highways England for repairs in excess of £10,000

3. These (other than agreed) rates used for the valuation

I believe the above rates, used to promote claims in respect of which Highways England is the claimant, are ‘held on behalf of’ your Authority, mindful Highways England has approached Kier for DCP rates to address an FoIA request previously and these have been obtained, disclosed or explanations provided.

Para. 36. Mr Cairns ‘evidence was to the effect that the costs calculated for the purposes of the claim did include uplifts for which he was unable to find authority within the contract’.

4. The uplifts applied and Highways England sought and

a. how the uplifts was calculated, achieved; percentage etc.
b. the authority for these (if one exists) or
c. confirmation there is no authority

I note ‘the lower rates are relevant’ (para. 37), but the TPCO can be added (para.38). This is a situation, conveyed in Appendix A to Annex 23, our correspondence has reflected for the past years but which Kier, Highways England and Corclaim ignored. The process also satisfies HHJ Godsmark’s judgement; the rates to you and a Third party should be the same.

Para. 38 also explains that ‘lower rates’ plus TPCO is a calculation that ‘could readily be made by the parties’:

5. Please explain how such calculation could ‘readily be made’ and provide all information relating to the process of undertaking the calculation i.e. provide all information that enables me to make this calculation.

In the absence of a schedule of DCP rates, undertaking said calculation appears impossible..

6. The Third Party Claims Overhead for Area 6&8 (Norfolk)

7. Since the commencement of the Area 3, 6&8 and 9 Kier contracts, the uplifts or multipliers Kier operatives (formerly known as AIW’s) are or were paid for attending emergency incidents during anti-social hours and provide:

a. Anti-social hours – the times
b. The uplifts charged to a Third party
c. The uplifts charged to Highway England

09/10/2020 @ 18:00hrs progressed by means of FoIA at WhatDoTheyKnow