201215 BBMM and HHJ Godsmark’s Judgement C08YP765

15/12/2020. Re HHJ Godsmark Judgement: Highways England Company Ltd & Peter Michael Hughes – 1212093 – C08YP765 (‘the judgement’)

An Area 10 ASC (Asset Support Contract) managed by BBMM, claim.

HMCTS
Derby County County
Derby DE12XE

Dear Mrs Morris,

Thank you for your email of 30/11/2020.  There appears to be a misunderstanding.

Ubiqus has received the recording of Luke Ellis’ evidence but state it is of poor quality.  I wish to have the recording enhanced.  The relevance is:

  • HHJ Godsmark QC repeatedly refers to Mr Ellis’ evidence, that there are rates over the threshold (of £10k) but these are subsidised.
  • The Judgement was sent to the lawyers in attendance for both sides, returned ‘approved’ i.e. I would not anticipate any errors
  • Mr Ellis has subsequently cited and relied upon the judgement

Believing an above-threshold schedule of rates existed, I made a FoIA request of Highways England for the price list above threshold (whether or not subsidised).  The Authority responded ‘no such thing’. I have progressed the matter via the ICO and a Tribunal hearing is scheduled for 01/03/2021 over 2 days, Appeal No: EA/2019/0390 before Judge Stephen Cragg QC.

In support of their not held’ stance, the Authority has produced a statement from Mr Ellis, who gave oral evidence to HHJ Godsmark QC in which he states with regard to the matter heard by HHJ Godsmark QC, the pertinent extract being:

33. This was another case which concerned a dispute over the costs of a below-threshold repair. The procedure followed for above-threshold repairs was not in issue.

34. It was, therefore, not directly relevant that the Judge made observations, at paragraphs 15,
29 and 62 for example, about what he called “agreed rates” between BBMM and Highways
England (or “preferential rates’ agreed between them — paragraph 32) that are used, the Judge said, as the basis on which Highways England are charged by BBMM for the costs of above-threshold repairs to the SRN. (See pages 22, 26, 27 and 33 to 34.)

35. As noted in the judgment, I gave oral evidence at trial.

36. The evidence I gave at that trial was consistent with what I have said above, from which it is reasonably clear that the summary in the judgement is not an accurate account of the position in relation to above-threshold repair costs when it is considered in detail. This is not surprising because it was only touched on by way of brief overview in the evidence and the Judge was not applying himself to the question of above-threshold repair costs which was not in issue in that case.

The judgement appears clear:

  • the existence of a schedule was an issue (it was raised on numerous occasions) and relevant.  I understand the charges may not have been utilised but would allow comparison and assist considering ‘reasonableness’.
  • a schedule of rates for above £10,000 repairs exists
  • the rates above £10k are subsidised and
  • therefore not a true measure so
  • not appropriate to use as a yardstick

Mr Ellis’ recent statement appears illogical; that he refers to the schedule being subsidised is a further endorsement the price list is held; to be affected by a subsidy, it must exist.

It appears HHJ Godsmark QC was keen to obtain a schedule of rates that could be used for comparison (whether or not utilised),  but was dissuaded from considering/applying the above-£10k rates because they were not ‘pure’ but subsidised. Therefore, what I am seeking is any evidence that the judgment is a true reflection of what was said.  It is possible my approach is unnecessary, that I should have absolute confidence in the Judgement as it stands.  I am not taking issue with the Judgement but trying to corroborate the content.  I am uncomfortable doing so.  The following assumes the Judge hearing the Tribunal matter 01/03/2021, may not accept the HHJ Godsmark QC’s Judgement at face value, it could be the case that I am unduly concerned, that the Judgement stands as is – that less credibility will be placed in Mr Ellis’ subsequent rebuttal.  I would, if possible, permissible, appreciate:

  • confirmation the Judgment is factually correct insofar as the existence of a schedule of rates (‘subsidised’ or otherwise) being conveyed to the Court is concerned
  • that Mr Ellis referred to a schedule of rates for above £10k claims but this was discounted because of the ‘subsidy’
  • any note held by the Judge relating to the existence of an above-threshold schedule of rates

I am mindful Mr Ellis’original statement was at odds with his verbal evidence.  Furthermore, he has referred to a subsidy, claimed this applied to the above-threshold rates and that, as a result, they were not a like-for-like measure.  However, I am informed by Highways England there is no subsidy applied.  The payment to which Mr Ellis referred is the monthly lump sum payment a portion of which is intended to compensate the contractor (BBMM) for incidents where there is no culprit identified.  As will be understood, in such situations, BBMM would have no party to claim against and therefore to compensate them for this, a sum is awarded.

It appears Mr Ellis’ misled the Court; that the above threshold rates were a perfect fit, a straightforward comparison but, being substantially lower, not rates BBMM wished to utilise.

P. Swift