201104 Recalculation of Charges & Conflict?

04/11/2020 to Highways England.

Alex Bingham @ highwaysengland.co.uk

Subject: RE: Judgement from S. Wales (Cardiff) Court stayed matters

Dear Mr Bingham,

Thank you for confirming the DOV does not apply to expired contracts and the previous contractual limits of your contractors’ scope of authority to pursue recoveries on your behalf.

Given that these contracts have since expired, will you now disclose the relevant schedules of rates as applied to the recently settled matters before Cardiff County Court? I note that the Judge was assured that these did not require judicial scrutiny and could be agreed between the parties. It is only fair that these are now disclosed to others whose cases were stayed.

On a wider point, It is apparent that in:

  • Area 6/8 the scope of authority was limited and Kier Highways exceeded this Authority
  • Area 9 the scope of authority was limited from 07/2014 until at least 01/2019 and Kier Highways exceeded this Authority

Kier accordingly recovered costs in your name without legitimate authority.

We had in fact alerted you to the conduct in writing since 10/2015. In 06/2017, we met with Highways England presenting the evidence in person. In 11/2017, we repeated the point that Kier were acting other than in accordance with the contract when speaking at length to KPMG who you appointed to audit them (https://www.englandhighways.co.uk/kpmg-overview/ ).

It is unfortunate that KPMG seemingly accepted what they were told by Kier at face value, and therefore the audit has no merit.

Please advise you intentions to carrying out an appraisal with regard to recalculating Area 6&8 claims and pre-01/2019 Area 9 claims, such that over payments can be recovered.

Finally, I would advise that Kier’s appointed solicitors (also your lawyers), Shakespeare Martineau (Corclaim), are still pursuing new and old claims by applying the DOV and ignoring the recent judgment. You have also awarded Corclaim the tender to recover your own above threshold matters. It would appear that they have a conflict of interest; one client (your contractor) instructs them in your name upon an unlawful basis and yet you also instruct them directly, presumably in accordance with the recent determination.

I would welcome your thoughts in this regard.

Yours sincerely,

Philip Swift