Repair cost £13,008.15
Highways England: 112/006/SG337
12/01/2018 works completed
28/11/2018 CMA was instructed
- the damage appeared to be such that we would anticipate a £5,000 repair bill. Why did the Authority not believe so and pay more than twice this?
29/11/2018, CMA sought information from Highways England
CMA chased information from the Authority, often without response.
Highways England repeatedly attempted to settle the claim in a sum exceeding their current recalculation (see 17/06/2020 below). However, it was evident to us from the outset this claim was overstated, exaggerated.
The Highways England stated they were returning to Kier for information/explanation, but it appears we were misled, that this did not occur on all the occasions stated. Furthermore, Kier failed to respond – a FoIA request (see below) revealed not one reply in approximately a year.
01/02/2019, we sought an update referring Highways England to ours of 2 months earlier advising:
‘if Kier are not responding, it appears this needs to be escalated at HE – this is one of a handful where it appears you are unable to elicit replies.
However, it appears the Authority did little or nothing, that we were being misled. The FoIA request we made (below) resulted in 2 pages of information being disclosed to us within ‘Binder 1 redacted’, at pages 12 and 13 these being:
- 16/05/2019 Highways England wrote to Kier explaining they were being chased (by CMA), seeking an update and sympathising that the contractor ‘may be busy’
- 08/07/2019 Highways England wrote to Kier explaining they were being chased (by CMA), adding ‘this is becoming an issue as we have not received anything in the last few months’. The Authority again sympathised that Kier ‘may be busy but asked if the matter could be dealt with urgently.
We noted that although the Authority, when responding to our FoIA request of 28/01/2020 disclosed the ‘chase’ emails (above), the original approach was not supplied, had been withheld. No response from Kier was disclosed i.e. between 11/2018 and 12/2019, the Authority was unable to elicit a response or has withheld it.
04/09/2019, we asked if Highways England to send us their emails to and replies from Kier, explaining we would what we have to date; it had been 9 months and no update. No information was forthcoming. It now transpires only 2 approaches to Kier were made (above) and their contractor failed to respond. Once again, it appears the tail wags the dog; Highways England has no control over their contractor.
The Authority offered to settle at £11,200.
We believed £5,000 to be reasonable. The Authority countered with £11,300.
It appears Highways England has no rates by which to calculate a claim value and is, therefore, forced to pluck numbers out of the air and adopt the ‘Life of Brian’ (Monty Python) approach to negotiation.
Highways England explained, if we took the £11,300 offer, ‘It would allow us to maintain our good relationship and also amicably settle this matter, it will close this case and I feel this would be a good and settlement.’
Why should we be subject to inferred threats of adversely affecting a relationship to provide the Authority a ‘good settlement’; a figure that is well in excess of their entitlement, an exaggerated sum presented because the Authority fails to reconcile invoices pre-payment but blindly, generously, hands out payments without any consideration of the public purse?
Is it any wonder Highways England recovers £1 in every £5 spent? That Highways England continues to seek excessive amounts from Third Parties suggests they remain unwilling to put their our own house in order.
In support of our belief the Authority acts in an underhanded manner, has misled us, their handler wrote:
If we cannot come to settle this case then I will have to revert to the service provider and this will take longer which I feel is not needed at this stage for a case like this.
Really? We understood his ‘reverting’ had occurred – the Authority can ‘revert’ until blue in the face – Kier clearly was not going to respond. The FoIA request indicates there was no ‘revert’.
Clearly, there was no interest in seeking information from Kier or an acknowledgement the contractor was not going to reply – the Authority could had two ‘weapons’; delaying and the threat of adversely affecting a working relationship. But we believed (and have been vindicated – see below) the figures were horrendously incorrect, distorted. We refused to kowtow, to be bullied.
11/09/2019, we asked the Authority to
- justify their charge and thereby our offer.
- provide the rates against which costs had been reconciled pre-payment, or direct us to them
- re-price using the ’reasonable’ rates at https://highwaysengland.co.uk/thirdpartyclaims/
No response. We reiterated our calculation appeared sound. Indeed, we undertook a more precise approach and believed the sum should be £4,814.83 – that the Authority had paid almost three-times the true cost from taxpayers monies.
Highways England clearly cannot price a claim as apparently they have no price list for any contractor in an ASC (contract). Kier apparently has no price list for the components, so how they come up with specific figures remains a mystery!
However, we invited the Authority to contradict our approach which was based upon known figures (the price list the contractor does in fact use – a schedule of DCP rates exists) and their own ‘reasonable costs’ those they must have spent a small fortune establishing – a team (3 at least) spent considerable time establishing rates following consideration of various schedules, to 100 claims and the Area 9 Kier schedules of DCP rates. The latter appears to have surfaced fleetingly to enable the NSoRC team to do their thing, then vanished – the Authority has once again breached the FoIA legislation had failed to provide the information they referred to.
The Authority is currently keen to explain that they do not require a schedule of rates, the costs just have to be ‘reasonable’ but this is an excuse for being unable to price a claim and is used selectively. In this particular claim, when we cited ‘reasonable’ rates, the Authority responded:
You mention reasonable costs, however reasonable costs or rates on this case would not apply to start off with,
Well, that at least appeared to confirm our client, an insurer was subject to ‘unreasonable’ rates. But why?
It appeared the Authority did not wish to answer but hoped we would take a carrot … an offer of £10,850 adding ‘This would take into consideration some factors raised by you‘. But which ones and why not all? We declined the offer; it was excessive and unjustified.
04/10/2019, the Authority advised with regard to the information we were seeking and their approaches to Kier:
I cannot give you a time line. As I have mentioned before as soon as I have an update I will be in touch, There is nothing more I can state at this time.
They could have stated that they had not pursued information for almost three months and explained why they could not prize information out of Kier. No information was forthcoming. Instead:
29/11/2019, Highways England having appointed Knights Plc the lawyers presented a ‘letter of claim’, which saw the demand increase to £15,437.29 because:
Highways England also claims interest on the loss from 31 July 2017 to the date of this letter of claim at the County Courts Act rate of 8% amounting to £2,429.14 and continuing at a daily rate of 2.85.
Clearly the Authority believed there was merit in the information we had sought; they had asked Kier for it. However, they had done so half-heartedly, without any conviction and to add insult, now wanted an additional £2,429.14 in interest for the period during which they had failed – to tea action and obtain responses!
We responded to Knights seeking the outstanding information and explaining either they had not read the file or the Authority had kept information from them. Ultimately, it was evident there was an intention to withhold information we were forced to progress by way of:
- FoIA request for information that should have been provided in the usual course of business
- formal complaint.
06/2020, it appears Knights understood this was a sub-£10,000 claim as they failed to supply the information and threw in the towel, returning the file to Highways England; being below £10,000 their ability to seek costs was potentially affected.
17/06/2020, Highways England wrote:
I would like to advise that the final costs have now been amended to £9,744.04.
The service provider has reviewed the file and advised that there did appear to be an overcalculation for TM, they should only be charging for 6 hours and this has therefore been deducted from the costs.
They have also advised that:
• “Vehicle FG64SYY shows 2 entries for 10/01/2018 when there should be 1 entry for 10th and 1 entry for 12th
• Peter Johnson shows 2 entries for 10/01/2018 when there should be 1 entry for 10th and 1 entry for 12th”
I await your response and proposed settlement offer.
19/06/2020, we responded and await information.
Note – Highways England state that they responded ‘in the usual course of business’ within 15 working days. This is seldom the case. In addition to the five matters we sought data about in 01/2020 by use of FoIA, Highways England has yet to address the issue of contractors providing information and we have been forced to engage FoiA again in respect of:
- W08C368 HE 112/010/SG501
- Y04B119 HE112/010. BBMM DCP 60700 Parapet costs
M66 southbound, parker post 9/0 – 9/1 BBMM incident number 60700 – no HE references supplied.
- X01A118 Your Ref: HE 112/008/SG269
- U10D233 Your Ref HE112/010/SG307
On the second occasion we engaged the FoIA to obtain information (above ‘A’ to ‘D’), our request was (again) considered vexatious – an argument we had already successfully centred in respect of the 5 matters (to include X02A607 – above).
It appears the Authority is very concerned about disclosure; their conduct and that of their contractors.