Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council
[2022] EWHC 2598 (TCC)
This claim arose out of the construction of Blackburn Bus Station, which was subject to significant cost increases and delay overrun. The contract, based on amended JCT terms, was terminated by Blackburn/Darwen BC (BDBC) before work was finished and BDBC proceeded to have the work completed by a replacement contractor. The administrators of Thomas Barnes (TB) brought claims for monies said to be due under the contract on a proper valuation of the works done at termination (including claims for prolongation) and damages for wrongful termination. BDBC disputed the claim in its entirety.
TB’s delay expert was criticised on the basis that they had: (i) failed to follow the specific guidance given in the SCL Delay and Disruption Protocol in relation to the as-planned versus as-built windows analysis method which they used; and (ii) produced an overly-simplified analysis, based on a retrospective longest path analysis method, which failed to investigate and engage with all of the potential causes of delay to the critical path of the works.
The Judge agreed, noting that the expert had formed a view as to the causes of critical delay from their instructions and reading of the contemporaneous documents and TB’s witness statements which was then “reverse-engineered” into a fairly simplistic Gantt chart. What the expert did not do was undertake an open-ended analysis from first principles.
TB said that the approach of BDBC’s expert was flawed because they conflated a prospective and a retrospective approach to critical path analysis and were unduly reliant on computer modelling, when was what really required was a close focus on actual events. The Judge accepted this up to a point, but noted that the expert had undertaken a detailed and conscientious analysis of the project by reference to the contemporaneous documents as and when they were provided with them.
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