10/10/2018 FoIA response @ WhatDoTheyKnow
With regard to Appendix A to Annex 23 Tim Reardon, General Counsel for Highways England has written:
In an attempt to close the matter down, can I underline the legal position in relation to Highways England’s entitlement to be recompensed for damage to its asset, the strategic road network:
- Where the damage is caused by the negligence of the owner or driver of a vehicle, Highways England is entitled to recover the loss that represents the diminution in value of the asset. The diminution in value is represented by the reasonable cost of repairing the damage.
- There is no obligation on Highways England to repair the damage to the strategic road network.
- Even if Highways England chooses not to have the damage repaired, Highways England, or the service provider bringing proceedings in the name of Highways England in relation to below threshold claims, is entitled to recover the reasonable cost of repairing the damage.
- By the same token, should the service provider agree under its contract with Highways England to carry out the repair free of charge or at much cheaper rates, Highways England, or the service provider acting on its behalf, is nonetheless entitled to recover from the individual responsible the reasonable cost of the repair.
- Thus, it is not the actual cost to Highways England of the repair which is important but the reasonable cost of the repair.
- The contract between Highways England and the service provider or supplier who undertakes, or procures the undertaking of, the repair does not determine what is the reasonable cost of the repair.
- Ultimately it is for the court to decide what is reasonable, and the court will tend to focus on the overall cost of the repair obtainable in the open market. It is always open to the owner/driver of the vehicle concerned or his/her insurer to challenge the costs being charged in court.
The above displays no reference to the application of Appendix A to Annex 23, in respect of which Highways England have written it
‘sets out the principles to be followed when calculating the maximum amount to be claimed for damage to Crown Property when the provider is pursuing a claim against any Third Party to recover the costs involve din the name of the employer’: