The ICO having found that Balfour Beatty Mott MacDonald (BBMM) hold information on behalf of Highways England, the Authority (formerly Highways England) are appealing the decision such that in the meantime they are not required to disclose the charging information held by their contractor.  They have not refused or denied an existing order by the ICO.

This is not the only Area 10 issue on its way to a Tribunal hearing, another pending matters deals with the Authority’s knowledge of sub-threshold (below £10,000) claims presented to drivers, fleets, hauliers or their insurers (Third Parties).  Whilst the contract concluded 04/2019 with BBMM receiving over £1/4million under the pain/gain arrangement, there remain claims outstanding.  Some insurers will likely have not so fond memories of Court hearings where BBMM relied upon the Judgement of His Honour Judge Godsmark (02/2018) who was seemingly looking for an alternative measure of costs but convinced the rates used above the £10,000 threshold were inappropriate being artificial, subsidised. The Judgement carried such statements as:

para 30. Mr Ellis acknowledged that CECA Dayworks rates were not a perfect fit to this type of work.
A repair such as this was a self-contained mini-contract of its own and not really an extra to an existing contract with men, plant and materials already on site.
It was though a reasonable way of pricing the repair.
He was asked why the same rates which were used in pricing repairs of over £10,000 could not be used.
His response was that the £10,000 + rates were negotiated prescribed rates which were in part subsidised by the lump sum paid under the agreement.

An FoIA request presented to the Authority asked:

3. The subsidy should also be explained, to the extent that I am able to reverse engineer the charges and establish the actual rate i.e. cost pre-subsidy. BBMM clearly possess the schedule; it is used to bill Highways England. BBMM has declined to provide the schedule in the course of ordinary business but has referred to in Court. I understand you are seeking a copy of HH Godsmark’s judgement in which the schedule is specifically referenced. https://www.englandhighways.co.uk/15-02-2018-derby-county-court-bbmm-for-highways-england/

The response from the Authority:

‘There was no subsidy’


References:

ICO: IC-47981-R2Q1

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