Court Considers Complex Issue Of Concurrent Delay: Thomas Barnes & Sons Plc v Blackburn With Darwen Borough Council

• Published date: 23 November 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Real Estate and Construction, Contracts and Commercial Law, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Iain Drummond and Chiara Pieri

In this TCC decision, the Court considered the complex issue of concurrent delay and whether the Council had followed the correct termination procedure under the contract, and whether this termination was effective.

The Council appointed Thomas Barnes ("TB") (in administration) to build Blackburn bus station.

There were severe delays on the project, for which TB claimed extensions of time ("EOT"). The Council ultimately terminated the contract because of the delays and the administrators for TB brought proceedings contesting the termination, seeking to establish a right to EOT, and claiming loss and expense and damages for wrongful termination.

The key dispute related to the allegation that works following the erection of structural steelwork were delayed because of deflection and associated issues requiring remedial works, which caused a delay to the critical path, where it was alleged that the Council was responsible for the steelwork design. However, a separate delay occurred around the same time with TB's roof covering work. The question was whether this contractor delay offset the Council's steelwork design issues such that no EOT was due. This is an example of 'concurrent delay', where more than one event occurs at the same time and there is a mix of responsibility between contractor and employer.

The law

When considering the issue of concurrent delay, the Court acknowledged that whilst there has been much debate over time, the law is 'settled and accurately summarised' in Keating on Construction Contracts 11th edition. The test to be considered is therefore, the 'effective cause' test: a contractor will be entitled to EOT if the event relied upon was an effective cause of the delay, even if there was a concurrent cause of the same delay. Therefore, if the employer delay event would have delayed completion in the absence of the concurrent contractor delay event, an EOT is usually due.

There was much argument in the case about the appropriate method of delay analysis. The Court saw methodology as less important than establishing the factual position. It reiterated that the common objective of any method of delay analysis is to assess the impact of delay to practical completion caused by particular items on the 'critical path' to completion. This...