190325 to Highways England re DCP Rates

25/03/2019 to: Jim O’Sullivan @ highwaysengland.co.uk

Subject: DCP Rates

Dear Mr O’Sullivan,

I refer to our telephone conversation 15/02/2019 when you kindly said that you would check with Tim Reardon concerning the status of the current crop of outstanding cases before various County Courts in which CMA are involved. What came of this? For your information, we have made various applications for disclosure of the schedules of DCP rates as applied in local areas.

I must admit that I find it very disappointing that your legal teams have changed track in their defensive strategies, whereby rather than accuse me of being ‘vexatious’, or that the requested information is ‘commercially sensitive’, the party-line is now that DCP rates do not exist and therefore cannot be disclosed. This is after some 5 years of seeking transparency as to how public monies are being spent, to be accountable. The relevance is that third party motorists (and their insurers) are being treated unfairly by HE’s contractors, under the apparent authority provided to them by Highways England. Neither Highways England (above threshold) nor Third Parties (below threshold) are able to reconcile claims as there is no pricing schedule!

I greatly appreciate your openness in explaining that various practices have arisen in different regions, which can give the ‘appearance’ of a schedule of rates. Your description was a mileage/expenses claim document, whereby you simply add new items to an existing spreadsheet, and repeat old calculations where similar. I would respond to that by saying that such a document, whilst its origin may have arisen through custom and practice, is a disclosable document which exists in its own right, and that it is entirely disingenuous for your legal team to deny its existence as a means of hiding the relevant information contained within it.

But it is to be commended that your personal approach is forward looking, and I recognise your wish to regularise the third party claims situation going forward, by way of an agreed/endorsed schedule of standard market rates for carrying out certain maintenance and repair activities. I would comment that you hold all this information already, you do not need agreement from your contractors.

However, in the meantime we are still receiving inflated and speculative claims from your contractors, in particular BBMM (Area 10) and Kier . They do not appear to have taken on board your internal message that recovery claims should be reasonable, and based upon ‘actual costs’. I have asked my colleague Wayne Vardon to pass to you some live examples, which provide factual information which can be reviewed and acted upon. These are all claims being brought in HE’s name, over which you have ultimate control.

I have one favour to ask you – in relation to historic matters, would you be willing to write a letter to us which states that in relation to the scope of authority which you have allowed contractors to pursue DCP claims on your behalf, that the claimed sums should not exceed the sums which Highways England themselves would be charged for those works? In other words, that below threshold rates should not exceed above threshold rates, in any particular region. That single letter will solve a very large number of outstanding historic cases at a single stroke. It concerns the scope of authority which Highways England provide, to pursue litigation in HE’s name. It would also be consistent with the current legal argument/defence being presented that agreed DCP rates do not exist.

I look forward to hearing from you,

27/03/2019 Response from tim.reardon @ highwaysengland.co.uk
Cc: Jim O’Sullivan @ highwaysengland.co.uk

Dear Mr Swift

Jim O’Sullivan passed me your email below.

As you note from your discussions with Jim, Highways England is working on a schedule of repair costs for typical instances of damage to the strategic road network, or DCP. This new schedule of costs, which we intend to publish on Highways England’s website in April this year, will be piloted in Areas 3, 7 and 9 with a view to national roll-out. The new schedule of costs makes no distinction between above threshold and below threshold claims. All future claims in those Areas will be taken forward on the basis of the new schedule.

In Area 9, Kier have withheld bringing new DCP claims since January this year. Those outstanding claims will be taken forward on the basis of the new schedule of repair costs.

Yours sincerely

Tim Reardon
General Counsel Highways England