Causation And Common Sense

• Published date: 24 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: HKA
• Author: Mr Andrew White

Thomas Barnes & Sons PLC (in Administration) v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC)

A recent case in the TCC has provided comment on the perennial issues of delay analysis methodologies, causation and concurrent delay.

Thomas Barnes & Sons ("Barnes") was appointed by Blackburn with Darwen Borough Council ("Blackburn") in 2014 under an amended JCT SBC 2011 with Quantities, to construct Blackburn bus station to an innovative design, comprising a "Hub" area for offices at ground and mezzanine levels and a "concourse" providing a waiting area and access to buses.

The appointment of Barnes was terminated on 04 June 2015, who then brought an action for unfair termination, an extension of time and prolongation costs for a period of 209 days over and above EOT of 84 days awarded during the Works.

Delay Analysis Methodologies

Delay experts appointed by both parties referred to methodologies identified in the SCL Protocol, with the Barnes expert referencing the "as-planned versus as-built" methodology and the Blackburn expert, referencing a hybrid time slice and time impact analysis.

In cross-examination, it was contended that the Barnes expert had not followed the as-planned v as-built method and that the Blackburn expert, had relied on a methodology that was more relevant to a prospective rather than a retrospective method of analysis.

HHJ Stephen Davies commented:

"Both arguments had some force. However, in my judgement it would be wrong to attach too much importance to a close analysis of whether each had properly chosen or loyally followed the particular method selected. The SCL Protocol itself discourages such an approach." [para. 109 - emphasis added]

"Thus it would be wrong to proceed on the basis that, because the SCL Protocol identifies six commonly used methods of delay analysis, an expert is only allowed to chose one such method and any deviation from the stated approach renders their opinion fundamentally unreliable...... However, I do accept that if an expert selects a method which is manifestly inappropriate for the particular case, or deviates materially from the method which he has said he is following, without providing any, or any proper, explanation, that can be a material consideration in deciding how much weight to place on the opinions expressed by the expert." [para. 110 - emphasis added]

He went on to reference four observations made by Akenhead J in Walter Lilly & Company Ltd v McKay [2012] EWHC 1773 (TCC):

• The court does not have to choose either analysis. It is a matter for the court to decide if, how, and to what extent the works were delayed.

• In determining what is causing delay at a given time "....one should generally have regard to the item of work with the longest sequence" [para. 113]

• "....it is not necessarily the last item of work which causes delay" [para. 114] or in other words, effect should not be confused with cause.

• "...a complaint is irrelevant to a delay...