In 2020, after years of National Highways misrepresenting to Tribunals, the ICO and us that Damage to Crown Property (DCP) rates did not exist, the figures were disclosed. Not just any pricing but the year-on-year ‘PEOPLE COSTS’ a.k.a. ‘DEFINED COSTS’, agreed by Mr. Ash of National Highways with Kier Highways for Area 9 since 2015.
Since 2015, Kier used these ‘before profit rates’ to bill the Authority which knew the rules. However, when pursuing drivers, fleets, hauliers, or their insurers (Third Parties) directly, Kier subjected them to profiteering pricing; National Highways failed to protect the public they serve by enabling Kier to bill contrary to the contractually agreed public protective process, Appendix A. Contrary to National Highways and Kier statements, the contractor never complied with this aspect of the contract.
In possession of the agreed rates, the ‘alternative measure to apply’ (para. 33 HHJ Godsmark) we set about repricing Kier claims. However, Kier’s lawyers, coincidentally, also the Authority’s solicitors, Shakespeare Martineau (SHMA / Corclaim) had other ideas; they claimed the rates applied to ‘above £25,000 claims’ and refused to accept the pricing on lower value claims. Odd; why would the costs for the same work be lower to an Authority (para 25 HHJ Godsmark).
It took months to obtain clarity but in February 2022, Shakespeare Martineau confirmed the statement they made in their correspondence was incorrect; unfortunately, the claims handler has misunderstood and misinterpreted Mr Ash’s statement.
SHMA’s technical claims manager’s interpretation and advice to the case handlers included the following phrase:
The statement confirms (at paragraph 3) that it relates to claims over £25k.
It goes on to discuss and detail some of the rates agreed between Highways England and Kier Highways and that is important.
The rates are just that, agreed between HE and KH and have no bearing on claims against third parties*.
*Given that the rates are used to bill the Authority which then presents the charges to a Third-Party for reimbursement, it appears the rates have a direct bearing upon claims against Third-Parties. Furthermore, the agreed rates were to have been used to bill Third-Parties too!
‘that phrase has then been slightly amended by case handlers almost in the form of a Chinese whisper sort of scenario.’
SHMA acknowledged ‘the original interpretation and guidance is probably also a bit too simplistic and could have been clearer’ and assured the Authority ‘no such responses are sent in the future and apologise if this has created any problems’.
How many have been affected by SHMA’s ‘Chinese whispering’ treatment of the facts is unknown. They certainly have not offered any apology or explanation to CMA or it clients – this information only came to light following disclosure forced upon National Highways.
The email from SHMA – Shakespeare Martineau e mails Redacted