Before: DEPUTY DISTRICT JUDGE GOLD. -v- Counsel for the Claimant: Counsel for the Defendant: TRANSCRIPT OF EVIDENCE OF SOPHIE GRANVILLE

Transcription

1 T OUNTY OURT AT ASINSTOK laim No. 35YM369 The ourt ouse London Road asingstoke Wednesday, 19 th April 2017 efore: PUTY ISTRIT JU OL etween: IWAYS NLAN OMPANY LT laimant -v- ANIL UNSY efendant ounsel for the laimant: ounsel for the efendant: NOT KNOWN MR. OKIN TRANSRIPT O VIN O SOPI RANVILL Transcribed from the Official Tape Recording by Transcription Ltd Turton Suite, Paragon usiness Park, horley New Road, orwich, olton L6 6 Telephone: ax Number of olios: 53 Number of Words: 3, M25863/cc

2 INX TO TRANSRIPT Page SOPI RANVILL alled xamined by OUNSL OR T LAIMANT... 1 ross-examined by MR. OKIN M25863/cc

3 SOPI RANVILL alled xamined by OUNSL OR T LAIMANT Q. ould I ask you to confirm your full name and work address, please? A. Sophie ranville. ridgewater ouse, asingstoke, R22 4S Q. You should have your witness statement in front of you. Q. If I could ask you to turn to the last page of that, is... A. (Inaudible) Yes. Q. Is that your signature there? A. Yes. Q. Are the contents of that statement true to the best of your knowledge and belief? A. Yes. Q. Sir, if I may ask that that stands as Ms ranville s evidence? T PUTY ISTRIT JU: Yes. OUNSL OR T LAIMANT: I am grateful. ross-examined by MR. OKIN Q. My understanding, madam, is that there is a distinction between claims that are below 10,000 and claims that are above 10,000 in the process. Is that correct? A. There's two different processes in relation to who sends the pack to the insurer. ut everything else within them should be consistent. Q. Is this right: if a claim is worth more than 10,000, the claim is made by? A. No. If a claim is above 10,000 or there is a fatal injury or a serious injury, we still as the contractor do the pack, put all the packs, the costs, the documentation together. We send it to ighways ngland and they just send it on. So they don't formulate it, we formulate it and then they pay us, and then they pursue the recovery with the insurer directly. Q. Right. So maybe I misunderstood. I am grateful. A. Sorry. Q. Not at all. In the case of 10,000 plus A. Mmm-hmm. Q. you bill. Q. In the case of 10,000 and below, you do not bill. A. It s... Yeah M25863/cc

4 Q. Kier bills the insurer direct. It s 10,000 and below or a claim that goes outside of a 28 day repair window, effectively. So what we do... The other constraint we have with ighways ngland is you have to be able to produce the estimate, if you like, within 28 days. If you can't do that for whatever foreseeable reason or you anticipate the cost to be below 10,000 and they actually come above, sometimes we end up still having those cases. ut then we would just do it directly with the insurer. T PUTY ISTRIT JU: Whose insurer? A. With, with the negligent party s insurer. Q. The third party insurer? A. Yeah, yeah, the third party. MR. OKIN: owever, in the case of less than 10,000 Q. there is no payment made by to Kier. A. No. Q. You seek your recovery then direct from the insurer. Q. owever, from the defaulting driver. Yeah. Q. Therefore, from the point of view of payment to Kier, that is an important distinction, whether it is above or below. You get your money from if it is above. A. It is better if it is above. Q. If it is above you get your money from. Q. If it is below, you get A. If it s above, then we get the money within a month. You know, when we do insurers it can go on for years because of (inaudible) there's a risk, effectively. Q. Yes. A. So it s quite a big risk on our part. Q. o I understand correctly that the rates that you have applied in this case which we see at S3, I think A. Mmm-hmm. Q. irst of all there is an invoice, and then there is a supporting document for the cost breakdown document. Q. o I understand correctly that these rates are taken from the contract with? A. No, there's no schedule of rates. It s a defined costs contract, which is dealt with in the contract document you passed earlier on. So, effectively, there's a cost, it s called a M25863/cc

5 notional looking rate associated with every person, piece of equipment, piece of plant that is calculated so it's, like, the salary cost, pension costs, you know, training costs, protective (inaudible). Q. Where do they come from, these rates? A. So it s based on actual costs and then Q. No, but where do they emanate from? A. rom the costs to us. I'm not quite sure. Q. Who comes up with (inaudible)? A. Well, our finance team will assess it every year. So every year, basically, all the costs are collected into pots and then divided by people, and then it s audited by ighways ngland to make sure that the notional rates are correct. Q. If you forgive me, S3 Q. produces a breakdown somewhere. T PUTY ISTRIT JU: It is before the photographs, S3, you say, just behind the invoice. There should be a breakdown. MR. OKIN: Yes. T PUTY ISTRIT JU: Just before the photograph. MR. OKIN: oes that refer to an appendix somewhere? OUNSL OR T LAIMANT: I think it is that document there, sir. A. It's that one, the (inaudible). T PUTY ISTRIT JU: Where is the appendix? A. Where your hand is. Q. I think I have seen an appendix in a bundle which explains how you A. Is that not the insurer s guide? Q. Yes. A. So that's the, that's S2, I think. Q. S what? A. S2, I believe. So it s before that invoice that you're looking at. Q. It is before it? It s that, that, yeah, in the Q. This is your guide M25863/cc

6 Q. to third party insurers, is it? We put it together with Q. It is a draft guide. A. No, this is, this is, it was finalised but Q. owever, it is described as a draft. A. Yeah, on this particular, the one that's been put in, yeah, you are right. Q. What we have got here is a draft guide. A. The one that's been submitted here, but it hasn t changed, so it is, this is what became final. We worked this up directly with insurers a couple of years ago, because we recognised the insurance market changed quite considerably, and the way that they wanted to go through claims and we wrote this with Aviva and Admiral to just explain the process so that they could understand. Q. Right. I will go back to (inaudible), I am sorry. MR. OKIN: Not at all, thank you. Therefore, can you help me just to understand how the base rate figures have been calculated? A. So, effectively, all the costs associated, attributed to a person are put in to against a person, and then once a year our finance team divide that obviously by the number of working hours, and they come up with an hourly rate. And then on top of the hourly rate there's a contract overhead applied, which in this case is per cent. That is an overhead that was calculated at the contract end stage and given to us by ighways ngland to use, and it s based on all the associated overheads of running an operation like this. Q. Where do I see the per cent on these figures? A. They're already in the figures. This one isn't breaking down. Q. What is the figure to which the per cent is applied to? A. Off the top of my head I'm not sure because I haven't got it in front of me, but I have provided that to your client before. I think it's, well, it s 70 less per cent. T PUTY ISTRIT JU: Therefore, just tell me again what the is. You are going rather fast. A. Sorry. Q per cent is what? A. Is the contract claims overhead, so it s an overhead that's been calculated by ighways ngland during the tender stage that we are told to apply to claims, and it s based on all of our overhead costs and a figure, and then a calculation is done with the procurement team that basically says, you know, to recover your overall overhead costs you need to apply X per cent to each claim. very contract in the country has a different contract overhead that is based on actual cost. Q. All right. What is the per cent applied to? A. Our, our notional rate which is our defined cost rate, so I think it s 50 something pounds, off the top of my head M25863/cc

7 MR. OKIN: A. (Inaudible) I had provided it. MR. OKIN: (Quiet discussions) In her skeleton, Miss Witting(?) refers to appendix (a) of annex 23 of the service information. A. Mmm-hmm. Q. That is a contractual document, is it? A. Yes. Q. It sets out the formula to be applied. A. No. It talks about the fact we've got a right to pursue claims and it talks about thresholds. Q. I do not know that we have got that in front of us in here. A. I thought (inaudible). Q. Is that in the T PUTY ISTRIT JU: Is that what you handed to me? OUNSL OR T LAIMANT: Yes. A. Yes, it is in that document. MR. OKIN: oes that include... We are looking for annex 23, are we? A. Yeah, I think it s from page, from page 30, I think. Service information. Off the top of my head, you've got my copy. Q. Sir, I do not know if you have got that in front of you. A. No, I gave it to you, sorry. Q. Right. ave you got that? (Pause) (Quiet discussions) A. Area 9 is different. This is an area 13 contract. I think that's it. (Quiet discussions) (Pause) Q. an I ask you to help me just find annex 23? A. Sorry, yeah. Q. ecause I cannot find it. A. No problem. Q. Annex 23. A. Area 13 is one of the older contracts, it s a bit hard to find. Yeah, in this one because it s area 13, they haven't labelled them as very well, but it s section 4.4, so it s from page 30. It s from that page. Q. All right. A. That's annex 23 (inaudible). They re a bit clearer in the newer contracts; this is quite an old contract M25863/cc

8 T PUTY ISTRIT JU: Paragraph what? A. It s from 4.4, I think it is, on page 30. MR. OKIN: No, I see that. Q. Sorry, sir. That refers to annex 23, but A. That is the detail. That is the section. Q. Where is annex 23? A. It s from 4.4 down. That's how area, area 13 s was a combined document. In the later contract T PUTY ISTRIT JU: It is a link, is it not, annex 23? MR. OKIN: It is a link, yes. A. The T PUTY ISTRIT JU: ave you got the document in front of you? A. I haven't, because I've given it to... (Pause) I thought there was an appendix in this. OUNSL OR T LAIMANT: I do not want to interrupt, but I wonder if I might show the witness a document Q. to see if that can clarify matters. A. Sorry. Yeah, you could... T PUTY ISTRIT JU: I have got a document headed: Area 9, asset support contract service information. A. Yeah, it s just Q. Annex 23, third party claims. It seems to have been sent in by (inaudible) and Mumford. Are those your MR. OKIN: Yes, they are. T PUTY ISTRIT JU: Therefore, your instructing solicitors seemed to have lodged... MR. OKIN: Well, that is helpful. A. Yeah, that s what's thrown us actually, because that is a different project. The content is broadly exactly the same, but bar the appendix (a) is not in annex 23 (inaudible). so I've got service information. So you are right, there is another link and it deals with exactly (inaudible). T PUTY ISTRIT JU: Are you saying this is not? have you seen this document I am holding here? OUNSL OR T LAIMANT: That is your M25863/cc

9 T PUTY ISTRIT JU: Is this the same one? A. Yes, I've seen that, yeah. OUNSL OR T LAIMANT: Yes. A. It s exactly the same, bar there isn't an appendix (a) in area 13 s. T PUTY ISTRIT JU: There is not what? A. An appendix (a) in area 13 s document. It s because it s an older contract and in area 13 s contract originally a threshold is MR. OKIN: Are we looking at area 13? A. No, that's area 9, so that's a different contract. Q. an we use appendix (a) to area 9? A. I think you can, yeah. Q. Therefore, paragraph 1 of appendix (a) says Q. This appendix sets out the principles to be followed when calculating the maximum amount to be claimed for damage to crown property when the provider is pursuing a claim against any third party to recover the costs involved in the name of the employer. T PUTY ISTRIT JU: orgive me. Which paragraph is that? MR. OKIN: That is paragraph 1, sir, for annex 23 to the area 9 contract, I think you indicate you have. A. It is paragraph, it s not, they're not down as one. It s 20, 20 something. Is it 23? T PUTY ISTRIT JU: We open with 23. Q. Third party claims. A. Which Q. I think A. I think you're on a later section, aren t you? Q. Is it 23.4 we should be looking at? reen claims where a claim is the responsibility of a provider, action by a provider. A. This is talking about above threshold claims. I think we should be looking at 23.5 (inaudible). Which bit are you looking at, sorry, sir? MR. OKIN: I am looking at a document entitled: Appendix (a), to annex 23. Amounts claimed from third parties. A. That's just an appendix. That's not the, the rules. That's to do with the third party claims overheads for area 9. So the contract guidance is before that. The appendix (a) will be specific for that contract. This wasn't around with area 13, but Q. What I am trying to identify is how you are calculating the sums claimed. A. (Inaudible) M25863/cc

10 Q. According to this, you... A. It s within the 23. T PUTY ISTRIT JU: an you just tell me which part of this retched document we should be looking at? A. Yeah, sorry. Sorry, I'm just looking at it for myself. Where (inaudible)? (Pause) Yeah, it s 23.4 down. So it s page... Q. This applies equally to area 13. The, the 23 point guidance, it does. Q. ave you got that, Mr odgkin? MR. OKIN: No, again, I have lost my copy to the witness. I am so sorry. A. That's yours, isn't it? Q. I am very sorry, I do apologise. This is a document I had only just seen before I came in. T PUTY ISTRIT JU: I understand. MR. OKIN: It is not T PUTY ISTRIT JU: (Inaudible) your instructing solicitors lodged it. MR. OKIN: I am not sure they have lodged the contract. I think what they have lodged is an A. That was Q. area 9. T PUTY ISTRIT JU: They lodged an area 9. MR. OKIN: Yes. T PUTY ISTRIT JU: That is all we have got. We have got to pretend it is area 13. A. The only difference with area 13 s is that originally the threshold was 5,000 and that was changed through a deed of variation in 2012 which I do have a copy of to make it 10,000, if you wanted to see that. the threshold. MR. OKIN: says: The provider does not seek to claim more than the amount calculated in accordance with the principles set out in appendix 8 of this annex. A. or area 9, yeah M25863/cc

11 T PUTY ISTRIT JU: (Inaudible) A. Yeah, you can use the same principles, so yes. It s not, the wording isn't actually the same in 13, but it s the same principles. MR. OKIN: Now, I need to go to appendix (a), do I not? A. If you want to, yeah, that s fine. Q. Where do we find appendix (a)? A. I think I've still got it here. I'm trying to read it for you. Q. Sir, I do not suppose you have got appendix (a). A. it'll be in the same section. Q. May I hand that up? I have got a copy (inaudible). xcuse me. Thank you very much. I think it is at A. It's in your copy. T PUTY ISTRIT JU: Is appendix (a) not at the back of OUNSL OR T LAIMANT: I believe it is A. Yeah, it is. T PUTY ISTRIT JU: I will give you that back because I do not want to (inaudible). MR. OKIN: Thank you very much. T PUTY ISTRIT JU: Where is it in the claimant s bundle? OUNSL OR T LAIMANT: I believe it is S2. A. No, this isn't from us. This was submitted by them. Q. Yes. T PUTY ISTRIT JU: Where is it? MR. OKIN: It is not in the bundle. T PUTY ISTRIT JU: It is not? A. It was submitted by (inaudible). OUNSL OR T LAIMANT: This is the one submitted by my learned friend's A. (Inaudible) T PUTY ISTRIT JU: Yes, but that is all we have been looking at. Q. I thought you were going to a different document now. MR. OKIN: I am going to appendix (a) of 23. This is A. That is the document M25863/cc

12 T PUTY ISTRIT JU: Yes. it is here, it is at the back. Q. All right. I have got it, yes. That is fine. MR. OKIN: All right. T PUTY ISTRIT JU: I thought it was a separate document. MR. OKIN: Paragraph (1) of appendix (a) says: This appendix sets out the principles to be followed when calculating the maximum amount to be claimed for damage to crown property when the provider is pursuing a claim against any third party to recover the costs involved in the name of the employer. That is this case today, is it not? Q. In other words, it is a 10,000 or under case. Q. Then over the page at paragraph 8, the amount to be claimed is no more than the total defined cost for items (a), (b) and (c) and third party claims overhead. A. Mmm-hmm. Q. I think you have indicated the third party claims overhead is per cent. A. This contract, yeah. Q. Yes, in this case. A. Area 9. Q. In this case. Q. What we need to understand is what the defined costs are for items (a), (b) and (c). Items (a), (b) and (c) we see set out in paragraph 2. A. Mmm-hmm. Q. Repair of damage including supervision management, traffic management during repair and initial response to incident clear up and make safe. an you tell us the defined costs for these three items? A. It s the figures and the breakdown minus the per cent. The financial annual work that goes on to go through the notional rates for each person every year, I don't have a copy of that on me because the file s massive. ut we do get audited by ighways ngland every year to make sure that we re abiding by this, and I know that your client s had a copy of that audit several times M25863/cc

13 T PUTY ISTRIT JU: Are these the figures in the invoice? Yeah. So fundamentally, the figures in the invoice is the defined cost plus the claims overhead that, that annex 23 talks about. Q. The 23.4? MR. OKIN: ow is one to understand what the defined costs is made up of? A. I have produced it before for your client. T PUTY ISTRIT JU: I am hearing the case now. Q. Therefore, I need evidence from you. A. That's not produced, that s not produced as part of our invoice pack because it breaks it down into things like protective equipment, et cetera, heating, lighting, that kind of breakdown. Q. My case, you see, is you, the claimant, have got to prove your losses. Therefore, I am asking you to justify the defined cost figure. A. And that's fine, but that's not been produced as part of the bundle, so I haven't got the, all the detailed calculations that go on behind these numbers at my disposal currently. as that been raised before? Q. It is raised in the defence, is it not? It is certainly put to proof, and I think these points are itemised in the defence. A. (Inaudible) the defined (inaudible). Q. (Pause) ow am I to decide the reasonableness of these defined costs when I do not know how I calculate them? OUNSL OR T LAIMANT: Sir, Ms ranville can explain and I am sure she T PUTY ISTRIT JU: She has not got the figures. OUNSL OR T LAIMANT: She can explain the process in terms of those figures are calculated. They are also commercially sensitive figures, I would T PUTY ISTRIT JU: I do not think you are going to hide behind commercial sensitivity for the purposes of avoiding proving your case. A. No, the problem is is that when we have given the breakdown of every pound in the past, then we start getting challenges about, Well, why s fire retardant clothing within it? and things like that, or in case a vehicle catches fire and you end up within a very minutia of arguments. So we've produced this and we produced the back up on request, and ighways ngland audit it. I think what we perhaps should have brought is part of the pack is the copy of the ighways ngland audit, and a freedom of information request to your client explaining the rates are identical and they're assessed annually. ut I haven't got that in this bundle. Q. What are you saying then, are you saying you want all this information? M25863/cc

14 MR. OKIN: Yes, I think we do. I am happy to carry on with more questions, but it is difficult. T PUTY ISTRIT JU: There is no point is there, really? What do you say I should do about it? MR. OKIN: an I just take instructions? T PUTY ISTRIT JU: Yes. (nd of evidence) (urther discussions followed) M25863/cc