201223 From & To Highways England re BAU / FoIA / Vexatious

23/12/2020 from Julie Turner @ Highways England

Damage to Highways England Network Property

In many of your communications of late you have referred to our requirement to respond to your often-lengthy requests for information within 15 days under business as usual (BAU). You have then stated that if we are not able to do so then the request you have made should be considered under the Freedom of Information Act (FOIA).

The provision of information which relates to a claim for damage to network property falls into the BAU process in name only. Our Network Claims teams will respond, as far as it is appropriate to do so, within the 15 days where possible but as you are fully aware the nature and volume of the information that we need to gather, and the source that it may come from, means it is likely to take a longer period of time.

Given this approach, we do not believe it is appropriate for your requests to be treated under FOIA. If we are unable to respond within 15 days to then ask that it is treated under the Act is not the manner that the legislation was established to be used in, and therefore such requests are considered to be an abuse of the legislation.

In the future, such requests will be treated as vexatious if you do choose to submit them via that route. This will also apply to other employees of CMA who request information as described above. We trust this will not be necessary considering the comments we have now made.

You can be assured that we will always endeavour to provide the evidence and information to fulfil the requirement that the costs we claim are reasonable. We note that you sometimes contact us when there are no material updates to report so please be aware that we will only contact you or your team when there have been developments on the claims that CMA represent. We trust this will avoid you having to incur time in contacting us unnecessarily when a claim status is unchanged.
Yours sincerely,

Julie Turner
Head of Green Claims (Central) – FBS Legal


23/12/2020 to: Julie Turner @ highwaysengland.co.uk
Subject: RE: Highways England BAU and FOIA – Network Claims

Dear Julie,

Highway England have repeatedly failed to respond within reasonable times, on occasions failing to update or provide reasonable responses for months. Furthermore, you fail to advise by when you can expect us to be updated.

It is evident you have problems with your contractors that it is with them you need to address issues, not us.

Our requests are seldom lengthy, save where a claim has many outstanding issues. I appreciate this may seem more frequent as:

1. You rubber stamp claims for payment, you do not reconcile invoices pre-payment and expect insurers to do this

2. You withhold information. Data you require (the TR430 process0 that is available, for you (maintained by your contractors) is now kept form us. It appears this is linked to the above at ‘1’ – you are concerned claims cannot be supported and fear what disclosure would reveal. Bear with me, I shall convey an example within the next week

I am appreciative of your assurance you will ‘always endeavour to provide the evidence and information to fulfil the requirement that the costs we claim are reasonable’ and refer you to our post at: https://www.englandhighways.co.uk/highways-england-claim-check-list/

If you could provide this detail it will save us both such exchanges, avoid the need for us to request much detail.

If you are not going to provide a time frame then I will revert to FoIA; what choice do I have? Forcing me to FoIA will be conveyed to the ICO and this email produced.

You, like many at HE, appear to adopt a less than convivial stance toward us (and others?). A sensible, reasonable, approach would be to suggest a period in which you expect to receive information. Would 20 days be more acceptable to you? If so, I will change our processes to assist you. It appears not to have occurred to you that we, as professionals, have service level agreements – we update our client regularly whether or not we have anything meaningful to report.

The solution is in your hand, not ours

I take this opportunity to wish you all a merry Christmas and a happier, more carefree, unrestricted, New Year. Possibly we should have a meaningful discussion about processes as there is much that your Authority appears not to understand about the claims presented – and this is a sincere offer, in no way facetious, sarcastic.


29/12/2020 to Julie Turner @ highwaysengland.co.uk & Sam Georgiou @ highwaysengland.co.uk
Subject: RE: Your ref 13007654/HE, CMA Ref Z03A586

Dear Julie,

Below is a contradiction we are commonly experiencing – HE state they are seeking information, they cannot acquire it from their contractors and despite an assurance they are waiting for the requested records (from Kier – below) seemingly unable to extract this, are sending matters to lawyers … who presumably you will instruct to obtain the information before seeking settlement? That HE asked for the information suggest it is not held but is considered reasonable.

Please confirm you are sending this Kier Highways claim, that you apparently paid without corroboration, to Shakespeare Martineau; the solicitors with whom you have a £3million contract, the lawyers who also act for Kier Highways.

Sam has indicated information will be supplied. You appear keen for us not to be hasty, to give you time. I am awaiting a response from you mindful you are away until the New Year – we simply need to know what time frame is reasonable. Armed with this, we can advise our clients and diarise appropriately.

As for Sam, I have sent a list of what we require – nothing more onerous than you seek pre-payment, the Tr430 process information. Is it unreasonable for us to expect the same as you?

Jason’s response/approach appears to be a ‘we cannot get the information reasonably required, we have tried but failed, so rather than settle utilising what we have in a reasonable fashion, we will try and bully payment out of the insurer’. This appears to be an ‘out of exasperation’ process. Hardly conducive to an amicable settlement and flies in the face of the reasonableness we expect … indeed, it makes use of FoIA (and citing Jason’s conduct) all the more reasonable.

But possibly the bigger picture is why are HE having trouble obtaining information from their contractors? You are their paymaster, if they will not respond to you, who can acquire the information? Additionally, why on earth are they paying these bills without checking them first, in the absence of the documentation? It is apparent HE do not check invoice pre-payment that you rubber stamp bills for payment. Whilst it appears this task is for insurers, it is apparent they are not to be provided the means to undertake the task – even though this would potentially enable you to recover overpaid sums to the contractor.

I trust this ‘them and us’ stance will cease, that we can work together to ensure appropriate claims are paid the appropriate sums and in turn, you can seek reimbursement of any overpayment form your contractor – not insurers.

Regards

Philip
CMA


Evidence Highways England says one thing and does another – the assurances they will wait upon their contractors for information is hollow …

24/12/2020 from HE Area 10 Green Claims
Your ref 13007654/HE, CMA Ref Z03A586

My counter offer of £6,000 was quite a reduction of our costs and was a bottom line maximum deduction at this stage with the information we have available in a genuine attempt to get this one settled now.

Therefore as your offer remains at £5,500.00, this isn’t something im able to agree and we will wait for further information from Kier as previously advised.

But a further offer to break the impasse, rather than just being rejected, indicates the Authority has no intention to wait upon their contractor’s response:

24/12/2020 from HE Area 10 Green Claims
Your ref 13007654/HE, CMA Ref Z03A586

Further to my email below and after further discussion regarding this claim unfortunately it is believed we will not be able to come to an agreeable conclusion on this particular file and it has been marked as at an impasse.

As a result I write to inform you of our intention to send this claim to our Litigation Partners.

This also flies in the face of the Authority’s recent assurances about Area 10 that information will be forthcoming, that they have a backlog which it is anticipated will be addressed by 02/2021.


08/01/2021 – HE seeks to obstruct FoIA request approaches by use of a blanket ban.