We have written to Shakespeare Martineau solicitors (SHMA) / Corclaim setting out our concerns about Kier’s pricing methodology:
Date: 06 Jul 2017
Copy 22 July 2017
Your Ref: M-MT-056422/UA / Kier Highways ref: GC27001
Our Ref: U08C770/PBS
1 Colmore Square
Dear Mr Merrell,
Re: Highways England Company ltd
Loss date: 18/10/2016 – damage to Crown Property
Claim value: £4,668.94
I refer you to our letter 07/06/2017 and the subsequent amendment (both attached at Appendix A). Our client has advised us that they received a telephone call from yourselves threatening imminent legal action upon the basis that you had not heard anything from us. This is factually incorrect.
I attached evidence of fax transmission to you (Appendix B).
We should therefore be grateful if you would apologise. Firstly, for approaching our client directly when you were aware that not only were we instructed (and in default we have nominated solicitors to accept service and/or other communications on our clients’ behalf generally), but also the continued unethical conduct of your firm.
Appendix A to Annex 23 (at Appendix C) sets out the method by which the maximum charge to a Third Party should be calculated. Your client is not complying with this, nor have they since the contract commenced (Area 9 – 01/07/2014).
We have made you aware of the situation, or our serious concerns and sought explanations from you; we remain without your reasoning. We have heard Ms Granville of Kier, on behalf of your client Highways England, state to the Court (as per emails – Appendix D)that Third Parties pay more than Highway England only because of the differing uplifts; 7.38% to HE, 20.58% to TP’s. That is to say, TP’s pay 13.2% more. This is factually incorrect.
We have sent examples to you which demonstrate inconsistence in the methodology used to calculate the claimed costs. At Appendix E, I attach a further ‘price comparison’; incidents a week apart, both outside of ‘core hours’, involving common staff, plant and materials.
You have stated that so long as your client’s costs are ‘reasonable’, that they are recoverable from third parties. The unfortunate truth is that your client pays little or no regard to a consistent and transparent approach to such calculations.
We are aware that this over-charging issue has now been raised in Parliament. In the circumstances, we find it inexplicable as to how you can continue to apply a weak strategy of approaching our clients directly and advising that ‘you have heard nothing’ and then threatening legal proceedings.
We reserve the right to draw this letter, and your response, to the attention of the Court in relation to costs, and whether the conduct of your own firm has been ‘reasonable’ or not.
Claims Management & Adjusting Ltd
We also wrote to the Authority:
Your Ref: unknown / Kier Highways Our Ref:W01A244/PBS
Birmingham B32 1AF
Loss date: 24/09/2015
We are instructed in respect of the above matter by (client).
Please find attached a copy of a letter we have sent to your contractor in respect of which we have not received a response. With regard to this matter and generally (we have other active claims involving Kier Highways Ltd), please could you address the following:
Neither Kier Highways Ltd (KHL) not Corclaim will respond to our requests for information both having blocked email communication. Highways England have historically referred us to KHL for data and we understand the contract conveys the need for KHL to provide information. In the absence of assistance and answers, faced with is obstruction, we are forced to write yourselves. Ultimately, Highways England Company Ltd are the claimant. We wish to afford you the opportunity to resolve claims, to prevent incurring unnecessary costs and wasting Court time. To this end, please:
1. advise a SPOC to whom we can refer all KHL related requests, if other than yourself.
Many of our questions are necessarily repetitive because they have never been answered. The attached is an example
2. please address the questions specific to the claim or advise who will do so.
Corclaim, in the name of Highway England have advised a Third Party that the Cost Breakdown Document (CBD) reflects ‘defined costs’. whilst I cite this as further evidence Corclaim and KHL know to use defined costs, their conduct is a misrepresentation and should stop.
3. please confirm that Corclaim have been advised:
a. of the difference between ‘defined costs’ and those displayed on the CBD.
b. that all matters in respect of which proceedings have not been issued are on hold, as per your email of 20/10/2017 (copy below).
Should this matter progress to a hearing, despite our best attempts to resolve the outstanding issues and make appropriate payment, we reserve the right to draw this letter and attachment to the attention of the Courts
My thanks in anticipation.
Claims Management & Adjusting Ltd
From: Sarah.Green @ highwaysengland.co.uk
Sent: 20 October 2017 16:01
Subject: RE: Your Ref: TBA Our Ref: S07B451/PBS complaint & T02A444
Any claims that are being processed and where costs would be incurred by Highways England to put them on hold will proceed.
All new claims or claims where proceedings haven’t been issued are on hold.
Head of Claims, Recovery and Dart Charge
Highways England | West Midlands RCC | 1 Ridgeway, Quinton Bus. Park | Birmingham | B32 1AF