Area 4 ASC
Service Information
Annex 23 – Third Party Claims
Area 4
Asset Support Contract
Service Information
Annex 23
Third Party Claims
Contract Issue 8, Revision 0
December 2015
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Area 4 ASC
Service Information
Annex 23 – Third Party Claims
SERVICE INFORMATION FOR ASC
ANNEX 23
CONTENTS AMENDMENT SHEET
Amend.
Revision
Amendments
Initials
Date
No.
No.
00
0
Contract Issue
AP
Dec
2015
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Area 4 ASC
Service Information
Annex 23 – Third Party Claims
LIST OF CONTENTS
23
THIRD PARTY CLAIMS
4
23.1 General
4
23.2 Red Claims
4
23.3 Green Claims
6
23.4 Green Claims where the claim is the responsibility of the Provider –
Action by the Provider
8
23.5 Green Claims where claims have been transferred to the Employer –
Continued action by the Provider
9
23.6 Matters relating to a change in Provider
9
APPENDIX A – AMOUNTS CLAIMED FROM THIRD PARTIES
11
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Annex 23 – Third Party Claims
23
THIRD PARTY CLAIMS
23.1
General
23.1.1
Definitions:
(1)
Red Claims are claims by third parties against the
Employer arising
out of the condition of the Area Network or the performance of the
Services.
(2)
Green Claims are claims by the
Employer against third parties for
damage to Crown property including the Area Network.
(3)
Red Claims Branch is Red Claims, The Cube, 199 Wharfside Street,
Birmingham, B1 1RN
(4)
Green Claims Branch is Green Claims, The Cube, 199 Wharfside
Street, Birmingham, B1 1RN
23.1.2 The
Provider supports resolution of claims, including providing a
contemporaneous record of the claim and the repair, demonstrating how the
costs arise from third party damage, providing technical information to
support claim recovery, responding in sufficient detail to questions giving
evidence and attending case discussions. The
Provider assembles a
sequence of records to support any litigation or proceedings relating to the
claim.
23.1.3 Where cases proceed to litigation the
Provider may be instructed to
undertake additional work by the
Service Manager.
23.1.4 The following forms are to be obtained in connection with the duties set out
in this Annex:-
Form TR430 (to be obtained from Green Claims Branch),
Evidence Checklist (to be obtained from Green Claims Branch),
Form TR137/HA2 (to be obtained from Red Claims Branch) and
HA1/Q proformas as appropriate (to be obtained from Red Claims
Branch).
23.2
Red Claims
23.2.1 Where a Red Claim is received by the
Provider (including any formal or
informal notification of the commencement of legal proceedings), the
Provider within 14 days informs the
Service Manager of the same and sends
the following to Red Claims Branch (with a copy to the
Service Manager):
(1)
copies of the particulars of the claim including any original claim
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Annex 23 – Third Party Claims
correspondence with its original envelopes and packaging,
(2)
a fully completed Form TR137/HA2,
(3)
a copy of the police or Traffic Officer’s accident report if available,
(4)
a report on relevant observations made at the site on the cause of the
claim (for example dimensions, and a diagram or a photograph, of the
defect), including a view as to how the defect has been caused,
whether it could have formed between inspections and an opinion as
to whether the defect represents an immediate or imminent hazard to
the highway user,
(5)
particulars of the 3 most recent inspections carried out prior to and 1
post incident date giving rise to the claim and
(6)
for personal injury claims all documents to comply with Personal Injury
Protocol Guidelines as specified in the Tr137/HA2
(7)
other such information as Red Claims Branch may request.
23.2.2 Where a Red Claim is received by the
Employer, the
Provider submits to
Red Claims Branch (a copy is also sent to the
Service Manager) the
information referred to in paragraphs 23.2.1 (2) to (6) in relation to the
incident. For personal injury claims the
Provider submits this information
within 7 days of the instruction for the information, and within 14 days of the
instruction for all other claims.
23.2.3 The
Provider retains records of all of the information sent to Red Claims
Branch together with correspondence with the public, records of work,
maintenance carried out, any discussions of maintenance problems with the
Employer and/or the police and other information or documentation
prepared by the
Provider under this Annex relating to Red Claims. Such
records are to be held for a period of not less than six years from the date of
issue. Unless instructed otherwise by the
Service Manager, the
Provider passes a copy of the records to the Incoming Provider in a readily
accessible format, including the relevant software licenses. In accordance
with paragraph 23.6, claims received after the
access date, irrespective of
the incident date, need to be investigated in the above terms by the
Provider. That may mean liaison with the Outgoing Provider or analysis of
their records, but the onus is still on the
Provider under this contract to
produce the said documentation in the time limits stated.
23.2.4 Where the Red Claim is an Indemnified Claim the provisions of clause 83 of
the Conditions of Contract apply.
23.2.5 Where the Red Claim is not an Indemnified Claim the following provisions
apply:
(1)
Within 14 days of request the
Provider submits to Red Claims Branch
(a copy is also sent to the
Service Manager) any of the information
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Annex 23 – Third Party Claims
required above which it has not previously provided, set out in
accordance with proformas to be obtained from Red Claims Branch.
(2)
The
Provider does not acknowledge receipt of the claim nor enter into
any correspondence with the claimant.
(3)
The
Provider assists the
Employer with any legal action or
proceedings in respect of the claim as requested by the
Employer.
(4)
The
Provider assists the
Employer where requested to take such steps
as are required by the Civil Procedure Rules 1998.
23.3
Green Claims
23.3.1 Immediately on becoming aware of any incident which may give rise to a
Green Claim, the
Provider takes all necessary steps to record the incident
circumstances, the name, address, vehicle particulars and insurance details
of the driver responsible, the damage and the repair. When the
Provider attends the incident, where possible it obtains the details of the responsible
party directly from them. In all other cases the
Provider obtains the details
of the responsible party from the police or the Traffic Officer.
23.3.2 Where at the
Provider’s initial assessment of the forecast Defined Cost
plus Fee including the cost of any Employer’s Stocks (excluding costs
payable to Statutory Bodies and value added tax) of the relevant repair does
not exceed £10,000, the
Provider takes the action set out in paragraph 23.4
unless either:
paragraph 23.3.4 applies, or
in the instance of circumstances set out in paragraph 23.3.5, unless
the
Service Manager instructs otherwise.
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23.3.3 Where at the
Provider’s initial assessment of the forecast Defined Cost plus
Fee plus the cost of any Employer’s Stocks (excluding costs payable to
Statutory Bodies and value added tax) of the relevant repair exceeds
£10,000, the
Provider does not take the actions set out in paragraph 23.4
but issues a completed form TR430 to the
Service Manager within 28 days
of the incident.
23.3.4 Where at the
Provider’s initial assessment of the forecast Defined Cost plus
Fee plus the cost of any Employer’s Stocks (excluding costs payable to
Statutory Bodies and value added tax) of the relevant repair does not
exceed £10,000 and the incident has resulted in a fatality, the
Provider does
not take the actions set out in paragraph 23.4 but issues a completed form
TR430 to the
Service Manager within 28 days of the incident.
23.3.5 Where at the
Provider’s initial assessment of the forecast Defined Cost plus
Fee plus the cost of any Employer’s Stocks (excluding costs payable to
Statutory Bodies and value added tax) of the relevant repair does not
exceed £10,000 and the
Provider becomes aware that:
following identification of the responsible party, that the responsible
party is uninsured,
the incident has or may have resulted in a serious injury,
a counterclaim has been received,
the property damaged includes property the repair of which is not the
Provider’s responsibility under this contract or
the incident resulting in the claim involves, mining subsidence, or is
caused by the negligence of the armed forces, NATO forces or
another Government Department,
the
Provider immediately ceases any action that it may have commenced
pursuant to paragraph 23.4 and issues a completed form TR430 to the
Service Manager.
23.3.6 The
Service Manager replies to the
Provider within 21 days of receipt of a
completed form TR430 under paragraph 23.3.5. His reply is either:
an instruction to continue to pursue the claim in accordance with
paragraph 23.4 or
an instruction to cease to pursue the claim.
If the
Service Manager does not reply within 21 days, it is treated as having
instructed the
Provider to cease to pursue the claim.
23.3.7 Each completed form TR430 issued by the
Provider must be accompanied
by a copy of the police or Traffic Officer’s report on the accident and an
estimate of the cost of relevant repair which must include the cost of any
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Employer’s Stocks. The
Provider provides such breakdowns and supporting
information, in accordance with the Evidence Checklist, to justify the cost of
repair, including the cost of any Employer’s Stocks, as the
Service Manager may reasonably require. Should the
Provider be unable to complete all the
details in form TR430 at the time required the
Provider continues to pursue
all details and submits them to the Green Claims Branch as they become
available. The
Provider submits any outstanding information within 30 days
of completing the repair to the Green Claims Branch in order to update the
TR430 form.
23.3.8 The
Provider retains records of all of the information sent to the
Service
Manager and/or Green Claims Branch together with correspondence with
the public, records of work, maintenance carried out, any discussions of
maintenance problems with the
Employer and/or the police and other
information or documentation prepared by the
Provider under this Annex
relating to Green Claims. Such records are to be held for a period of not
less than six years from the date of issue. Unless instructed otherwise by
the
Service Manager, the
Provider passes a copy of the records to the
Incoming Provider in a readily accessible format, including the relevant
software licenses.
23.4
Green Claims where the claim is the responsibility of the Provider –
Action by the Provider
23.4.1 The
Provider issues a letter of intent to claim to the responsible third party
(or their insurers).
23.4.2 The
Provider conducts such further correspondence with the third party (or
their insurers) in pursuit of the claim as is required.
23.4.3 When requested by the responsible third party (or their insurers as the case
may be) or instructed by the
Service Manager the
Provider provides the
responsible third party (or their insurers as the case may be) with a
calculation of Third Party Claims Defined Cost and resulting Third Party
Claims Overhead.
23.4.4 The
Provider does not seek to claim more than the amount calculated in
accordance with the principles set out in Appendix A to this Annex.
23.4.5 The
Provider keeps detailed records of Third Party Claims Defined Cost,
third party claims that have not been resolved and the amounts of agreed
recoveries third parties have yet to pay in respect of resolved claims. Such
records are to be held for a period of not less than six years from the date of
submission of the final statement the
Provider is to submit under clause 87.4
of the Conditions of Contract.
23.4.6 For each claim the
Provider reports to the
Service Manager, the amount
claimed from third parties, a calculation of Defined Cost and resulting Third
Party Claims Overhead, the amount recovered, an explanation of any
differences between any of these amounts, and explanation of why any loss
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greater than Defined Cost has been claimed as required by the
Employer.
23.5
Green Claims where claims have been transferred to the Employer –
Continued action by the Provider
23.5.1 The
Provider continues to support recovery of claims passed to the
Employer. This includes as soon as the incident occurs, collation and
preservation of all records and documents relating to the incident and its
repair until the resolution of the claim (as required by the
Service Manager and indicated by the Checklist).
23.5.2 Costs must relate to the specific damage caused by the third party and each
damage event must be treated as a separate claim.
23.5.3 When instructed by the
Service Manager, the
Provider provides a sufficient
response within 21 days. This reply is issued by the
Provider back to the
Employer and must be in suitable format for Green Claims to send out to the
relevant third parties.
23.5.4 Where insurance queries are repetitive and about general rather than
specific matters the
Provider should recognise opportunities to provide
standard responses to the Green Claims team to use in response to
insurers. However, where questions are more specific about a particular
cost issue or justification of a repair decision then 23.5.3 applies.
23.6
Matters relating to a change in Provider
23.6.1 The
Provider takes over commencing on the
access date the performance
of the Outgoing Provider’s duties relating to Green Claims and Red Claims
as the Outgoing Provider ceases to perform those duties. The
Provider
performs the duties it takes over in accordance with this Annex.
23.6.2 After the expiry of the Contract Period, the
Provider ceases to perform its
duties under this Annex relating to:
Green Claims and
Red Claims,
other than:
in respect of any item of work commenced and not completed by the
Provider prior to the expiry of the Contract Period which the
Service
Manager instructs the
Provider to complete after the expiry of the
Contract Period,
those duties which the
Provider is to perform under paragraph 23.4,
those duties requiring the
Provider to retain records and pass copies
of records to an Incoming Provider, and
continuing to make its employees who are witnesses of fact in relation
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to any Green Claim or Red Claim available to the
Employer to enable
the
Employer to dispose of the claim whether by legal action or
proceedings or otherwise.
23.6.3 The
Provider continues to comply with its obligations under clauses 83 and
87 of the Conditions of Contract after expiry of the Contract Period.
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APPENDIX A – AMOUNTS CLAIMED FROM THIRD PARTIES
1.
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.
2.
The Table below lists those heads of cost that can be considered for recovery
as part of the cost of the damage.
Method of
Item
assessing cost
(a) Repair of damage including
Defined Cost
supervision and management
(b) Traffic management during repair
Defined Cost
(c) Initial response to incident, clear up
Defined Cost
and make safe
(d) Planning repair of damage
(e) Additional costs of depot space
required for storage of any material
over and above normal routine
Third Party
maintenance requirements
Claims
(f)
Additional finance charges not
Overhead
recovered under fixed overheads, for
delay in recovery from third
party/insurers
(g) An allowance for fixed overheads
3.
The claim must include the cost of any Employer’s Stocks used in the repair.
4.
The amount to be claimed is no more than:
Third Party Claims Defined Cost + Third Party Claims Overhead.
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