Green Claims Recovery policy

Introduction

1.1 The Highways Act, 1980 (‘the Act’), is UK’s primary legislation to deal with the management and operation of the road network in England and Wales. As England’s highways authority for the Strategic Road Network (SRN), National Highways must comply with all parts of the legislation.

1.2 For the purposes of this policy, the company should specifically look to Section 41 of the Act, and its duty to maintain the SRN to ensure the safety of all highway users. It is essential that steps are taken quickly to remedy or repair defects to the road infrastructure which create a hazard or danger for users.

1.3 In such circumstances, where National Highways seeks to recover monies from a third party in respect of damage caused to the SRN, the process is referred to internally as a ‘Green Claim’.

1.4 National Highways' three imperatives of safety, customer service and delivery sets focus on ensuring that everyone who uses or works on the SRN get home safe and well. The company is committed to delivering the services and improvements needed to reduce the number of incidents on the SRN which result in a Green Claim.

Policy statement

2.1 This policy sets out the legal framework under which National Highways determines how and what monies can be recovered from third parties when damage has been caused to the SRN. The steps which must be followed by National Highways when proving legal liability for damage are also defined.

2.2 This policy is owned by the Director of Network Claims and Transformation and has been approved by the National Highways Executive and Finance Executive Committee.

Policy scope

3.1 Claims are pursued against:

• the responsible party through their insurers
• via the Motor Insurers’ Bureau (‘the MIB’) where the damage has been caused by either:
  • an uninsured driver
  • international or foreign drivers where MIB can assist with access to overseas insurance data
  • or the responsible party directly if they have invalidated their insurance policy (for example driving whilst under the influence of drink)
• any employer who may be liable
• other government departments where the cost of repair is over £10k.

3.2 Claims are recovered under what is known as tort of negligence law, and can only be made against a third-party driver if legal liability for the damage caused can be established. The burden of proving legal liability in tort rests on National Highways as the party claiming.

3.3 Successful recovery of green claims relies on everyone involved in the process understanding their roles and responsibilities. Key roles include:

• the National Highways Green Claims Team, responsible for claims handling and resolution
• National Highways' Regional Operations teams, who are responsible for the timely notification of incidents which may result in a green claim
• National Highways' commercial teams, overseeing the award of new contracts with service providers and providing specialist commercial advice
• service providers, contracted to maintain and operate the SRN on behalf of National Highways
• National Highways' legal advisors provide legal advice and support to our claims team and in some cases, specialist legal advice and litigation services are provided by our nominated litigation partner.

Requirements for this policy

4.1 National Highways has contracts in place for the maintenance and repair of the SRN across England, divided into regional areas to help manage the upkeep efficiently and effectively. Within such contracts includes the requirement to assess the scope of and carry out repairs to the SRN where damage has been caused by a third party.

The cost of repairs may be initially met by the service provider acting on behalf of National Highways in the area where the damage was caused. This is dependent on:

• the value of the estimated reasonable costs for carrying out the repairs
• the type of maintenance and repair contract in place at the time of the event.

National Highways is phasing transition from the asset support contract model (ASC) to the asset delivery contract model (AD) which will ultimately be in place across all regions.

Proving primary liability

4.2 To successfully pursue a recovery in relation to primary liability (a green claim), National Highways will need to prove:

• that the driver was negligent
• deliberate intent, if there is reason to believe the damage was caused deliberately
• the driver’s negligence caused damage to property owned by National Highways
• that the damage has caused recoverable loss to National Highways. Here we will apply leading case law Coles v Hetherton to support our claim.

Proving secondary liability

4.3 In some cases, a driver may not have sufficient assets to meet the cost of a judgment. National Highways may look to recover from the driver’s employer where they exist (for example the haulage company employing a lorry driver causing damage). If they have sufficient assets, an insurer, the employer, the MIB or a combination of all three parties may be approached to meet the costs. This is considered secondary liability. National Highways will bear the burden of proving both the primary liability of the driver and the separate secondary liability of the other party or parties against which it seeks to recover.

To successfully pursue a green claim in relation to secondary liability, National Highways will need to prove the following conditions in addition to proving primary liability against a driver:

• that the driver was acting in the course of an employer’s business when involved in the incident
• if the claim is being pursued via an insurer, that the terms of the insurance cover allow National Highways to recover the full amount against the insurer. In such cases, the level of insurance cover under the individual policy will be checked by the Green Claims Team.

4.4 During the course of a claim, an insurer may reject the original claim (either in full or in part). National Highways retains the right to recover the loss (either in part or in full) through the MIB under the Uninsured Drivers Agreement up to the limit of the compulsory insurance specified in the Act.

Recovery against untraced drivers

4.5 In some circumstances, the third party responsible for the damage may be unknown or ‘untraced’ and a claim cannot be brought against the driver or any employer or insurer. In these cases, it may be possible to seek recovery against the MIB under the Untraced Drivers’ Agreement. There are significant restrictions on recovering property damage and another claimant would need to be seeking compensation from the MIB for serious personal injury. In these instances, it is important that our Regional Operations Teams and service providers provide the Green Claims Team with as much information as possible from the offset.

It is not necessary to wait to pursue a green claim until the repairs have been carried out. The entitlement to damages arises and are assessed at the time of the incident when the physical damage occurs.

4.6 All offers to settle a claim must be assessed in line with HM Treasury’s Managing Public Money (Annex 4) criteria.

4.7 All data must be retained and handled in line with company policy on information management and security, and accessible for future reference by internal staff subject to retention periods.

Related guidance and procedures

5.1 More information and guidance can be found by following the links provided:

Managing Public Money - Annex 4

Section 41 of the Highways Act 1980

Section 145(3)(a) of the Road Traffic Act 1988

MIB website - making a claim

Monitoring

6.1 This policy is jointly owned by National Highways' Network Claims and Commercial and Operations teams in National Highways.

6.2 Internal Service Level Agreements (SLAs) for the green claims process have been defined. The timescales are based on standard requirements set by the Practice Direction on Pre-Action Conduct within the Civil Procedure Rules. These SLAs will be used to measure performance and identify areas of non-compliance.

6.3 Monitoring of compliance with this policy and associated guidance is the responsibility of the policy owner. The policy owner is also responsible for monitoring compliance with the principles contained within this policy, and for determining any enforcement activity that may be required on identification of non-compliance.

6.4 Monthly performance reviews will be undertaken by the Network Claims Management Team. Progress against a set of defined performance measures will be reported and presented monthly to Regional Operations Teams, Service Delivery Managers and other senior stakeholders using management information dashboards. These measures include but are not limited to:

• total income recovered against budget
• outstanding claims by age profile
• number of ‘right first time’ claims progressed to conclusion
• number of instances where the culprit of the damage is unknown

Records management

6.5 A formal record of all actions must be held during the lifespan of the claim. Documents are held in company archive for 10 years.

Policy breach

7.1 Failure to comply with this policy by an internal staff member may result in a loss of income for National Highways, which will in turn jeopardise future maintenance programmes through a lack of available funds for re-investment back into the SRN. A continued failure to comply with the principles this policy, and the accompanying process will be investigated and may lead to disciplinary action being taken.

Definitions