210106 Highways England and the Cardiff Court Contractually Agreed Rates Avoidance

09/10/2020, I made the following FoIA request:

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

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 to 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 a 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 were 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 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

23/10/2020, I wrote on the subject to Highways England:

To assist you locate the information:

1. Since 12/2018, the Authority tells me (and you) there are no ‘contractually agreed rates Highways England are charged by Kier’

21/08/2020, a hearing occurred. Not about a single matter, but one of many stayed case (we have 20) that a District Judge elected to oversee due to the issues. Kier/HE told this Judge, as recorded in an approved judgement for this multi-track case, which therefore creates a precedent, for all cases in lower courts https://www.englandhighways.co.uk/200821-judgement-re-kier-rates/ para 6.iv):

2. ‘For repairs valued in excess of £10,000 Highways England are charged by Kier using contractually agreed rates’

Please explain the contradiction, reconcile it? To be absolutely clear:
• HE tell me and the ICO there is not a schedule of rates
• HE tell a Judge there is a schedule of rates

I am seeking the contractually agreed rates for repairs valued in excess of £10,000 Highways England are charged by Kier a.k.a. DCP rates – those associated with claims presented to drivers, fleets, hauliers or their insurers as a result of incidents (unplanned occurrences).

The Authority wrote about the 23/10/2020 message (above):

This was taken as clarification of the information you were seeking. On 19 November 2020 Highways England issued a response under FOI 101485. Explaining that the information was not held by Highways England, an explanation was provided for this and it was also explained that this topic of pricing methodology used for damage repair claims has been covered in significant detail in our responses to previous requests from yourself and that further requests on this would looked at as to whether they were vexatious under Section 14(2) of the Freedom of Information Act 2000.

03/10/2020, I wrote to the Authority:

I do not accept that the information is ‘not held’. the judge has been specific, your lawyers and the defendant parties have received the Judgement and provided 2 weeks in which to approve it.

You have failed to explain what enquiries you have made to determine your statements are correct and I trust these will be disclosed. You distance yourself from the judgement yet make (uninformed?) comment about it. How?

It appears you are placing your own interpretation upon the Judge’sapproved writing at paragraph 6 (iv) that contractually agreed rates are charged for repairs valued in excess of £10,000. Seemingly, you believe the Judge may have been referring to the pricing schedule for target costs of schemes, which details the rates offered during contract tender. Where is the evidence this is or is not the case?

I have been specific. I am seeking the rates to which the Judge was referring. I trust I will be provided with these and all information relating to your enquiries, assumptions and interpretations.

It is not a plausible explanation for this schedule to be that apparently disclosed for the Area 3 Asset Support Contract during the course of this litigation by Order of the Court – a schedule I have never sought. I am aware this is NOT a schedule of rates for damage repair claims ergo it would never be referred to as such. therefore, quite clearly the Judge who wrote:

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

together with the lawyers (and any other party) proofing the judgment pre-approval, would be aware that the REPAIRS rates documented in the Judgement ARE ‘contractually agreed’.

You have also failed to address each of the points raised, concentrating upon the court/rates issue only.

06/01/20221, the Authority responded:

I have now had the opportunity to review the request, the response and discuss this with the relevant parties and I am satisfied that the response provided is correct and that the information requested is not held.

To explain further Highways England were the Claimant in name only in the case of Highways England v Booth & Another (The Cardiff Judgement). As such, we were not represented. The claim was pursued by Kier and their legal representatives. The Judge held that Kier established the appropriate contractual authority to do this.

There are no contractually agreed rates for damage repair claims above £10,000 and this has been covered in numerous responses, decision notices and in the First Tier Tribunal decision EA/2019/0119 which found no such rates are held.

Our interpretation is that the Judge’s reference to such agreed rates at Para 6 (iv) is a reference to the pricing schedule for target costs for schemes and these have been found to be commercially sensitive both by decision notice and First Tier Tribunal EA/2018/0104. In this aspect it is considered that the information is held but is being withheld under Section 43 of the Freedom of Information Act 2000.

Finally, I am unsure what you mean when you state we have failed to address each of the points raised. Your e-mail on the 23 October 2020 set out the information you were seeking and this has been addressed in the response under FOI 101485 on 19 November 2020.

In conclusion, as noted above, I am satisfied that the information requested is not held and no further action is required by Highways England.

If you are not satisfied with the outcome of this review you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane

Yours sincerely

Jonathan Drysdale
Freedom of Information Officer

Whilst the above does not address why the Authority has enabled/permitted the use of unauthorised uplifts since 2014 by Kier Highways, despite our repeated presentation evidence this was occurring, this was not the purpose of the request. We are seeking the rates the Judge was informed were ‘contractually agreed’.

It appears Highways England are less than happy with the Judge’s findings and wish to believe they relate to ASC (preplanned/scheme works) rates.  This is clearly not what the Judge was explaining and we comment upon ‘Highways England’s Spin on a Judgement citing ‘Contractually Agreed Rates’ – of course they exist!’ – read more here.

The response to the Authority can be read here.