201119 FoIA Appeal Re. Shakespeare Martineau Information Held

In 2017/18 SHMA acted for Highways England, the head of the Authority’s ‘Green Claims’ had ‘checked it out’ with legal.  But when we seek information raising concerns about the lawyers ‘profiting from claims’ approach in this ‘serve the public’ arena … another Authority u-turn!

I have sought information relating to the relationship between Shakespeare Martineau solicitors (SHMA) a.k.a. Corclaim and Highways England.  The ICO has supported the Authority’s not held stance, the Decision Notice (DN) can be read here

The basis of the Authority’s rejection/exemption is ‘NOT HELD’ because ‘NO RELATIONSHIP’. The ICO writes in their DN:

15. Firstly, HE stated that it did not employ Corclaim and that Corclaim are employed by the third party contractor, in this case Kier. HE has no say in what law firms/solicitors that its contractors employ or why they employ them. It is a matter dealt with solely by the private third party company.

HE has no control over or sight of this information.

17. Corclaim acts on behalf of Kier for below threshold claim

para 17 is contradicted by the Authority and gave rise to the request i.e. the request stems for the Authority’s own confirmation that Kier act for them – see below (Sarah Green ) who checked it out with ‘legal’.

This is a further example of the Authority’s U-turn when their previous response lands them in potentially hot water.  It is questionable what emanating from the Authority can be believed. 


HISTORY


2016, we thought this; that Corclaim, Shakespeare Martineau solicitors (SHMA) were engaged by Kier.  But in order to progress a claim, Kier required the authority of the Authority, which was provided by Tim Reardon, HE’s General Counsel.  Furthermore, proceedings were being issued in the name of the Authority, not Kier.  Whilst the contract appeared to allow for this …

01/2017, we stumbled upon and circulated, the secret section of the contract, kept from Third Parties by Kier and the Authority; Appendix A to Annex 23.  The very section protecting drivers, fleets, hauliers or their insurers was hidden, not spoken of by either Kier or the Authority.  It was evident Kier was acting outside their authority but despite us alerting the Authority to this,  Kier and SHMA kept pursuing exaggerated bills.

  • Note:
    • Kier used the correct pricing to the Authority on above-£10k claims; Highways England knew the rules.
    • 08/2020, the Authority’s witness caused a judge to write: ‘… his 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’ (para. 36).

21/06/2017, we met with Mrs Sarah Green of Highways England, their soon to be head of Green Claims.  We conveyed the exaggeration and fraud being perpetrated by Kier Highways, represented by SHMA. Mrs Green left with documentation and the following day was prepared to assign the Authority’s fraud unit.

06/07/2017, we wrote to SHMA’s Mark Merrell highlighting our concerns. 

The HE/Kier audit subsequently referred to by KPMG as ‘Project Verde’ was slow to progress. However, 28/09/2017, Mrs Green called (the entire conversation for registered users is supplied for context here).

The pertinent content is:

  • SHMA was apparently told to stay matters by HE but had not.
    • Clearly, HE could dictate to SHMA, albiet SHMA did not comply
  • I suspected Sarah was being undermined, her commands overridden
  • I left Sarah in no doubt my calls were recorded
  • Sophie Granville (Kier) had been abusive to Sarah
  • SHMA* were not corresponding with HE
    • SHMA’s conduct apparently gave rise to the investigation being progressed
  • The HE CEO, Jim O’Sullivan, was aware

*We understand this tio be Mark Merrell of SHMA – coincidentally associated with the £3million HE contract aware to HE.

11/2017, we spoke with KPMG.  The conversation can be read here.

20/10/2017, Mrs green emailed that all Kier matters were on hold

From: Sarah.Green @ highwaysengland.co.uk
Sent: 20 October 2017 16:01

Any claims that are being processed and where costs would be incurred by Highways England to put them on hold will proceed.

All new claims or claims where proceedings haven’t been issued are on hold.

It appeared HE had control of Kier and SHMA. But Kier/SHMA did not comply with the above, they continued to issue proceedings

18/01/2018, I asked Mrs Green about the matters on hold as two had been progressed, contrary to this agreement.  Whilst Mrs Green knew of this when I replied I expressed concern about how to proceed, the response was:

No, I don’t either, if I’m brutally honest with you. So, I have given a clear instruction but um… I don’t know what to say. I, I just need to get the report next week and then do what I need to do

12/02/2018, I again spoke with Sarah green asking:

“How about Shakespeare Martineau, I mean are, are they, do they on behalf of Highways England?” to which Mrs Green responded,

” Err, no.”.

28/02/2018, I spoke with Highways England (the entire conversation for registered users is supplied for context here). I explained the SHMA had issued on another matter in the name of Highways England yet all matters are on hold.  I explained receiving Sarah’s ‘on hold’ email of 20/10/2017 and this matter we were instructed on subsequently i.e. it fell within the ‘on hold period’. However, Mrs Green apparently could not get the matter ‘pulled back’ but could have a word with SHMA to say, “Don’t do any more”.

I was blunt responding “… but they’re not doing as they’re told.” To which Mrs Green responded “
I’m fully aware of that” but when I asked, “Why?” Mr Green responded:

“If you can give me an answer, then I’d be… I don’t know.”

I queried what I had been told previously by Mrs Green, stating “But when we spoke last time you said that they weren’t acting for Highways England” to which Mrs green responded:

“I was wrong. I’ve had legal check it out. “

It is apparent SHMA was acting for the Authority, hence directions could be given to the lawyers, albeit they ignored them – this, of course, assumes the Authority was being forthright. So … 

  • SHMA act for Kier then
  • SHMA act for HE
  • 2020, when information is sought about the relationship stated to exist between SHMA and Highway England, the Authority U-turns; there is no relationship. 

In 2019, we were informed that Kier was not issuing any new invoices in Area 9 to Third parties as HE was compiling the NSoRC – the new ‘reasonable rates’.  It is evident HE can exert some influence; no invoices for o6 months? However, the NSoRC failed and was blamed on insurers.  We suspect it failed to provide sufficient profiteering for contractors and that it was they, the tail wagging the dog, that caused the process to cease.